1926815 (Refugee)

1926815 (Refugee) [2024] AATA 2147 (7 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michele Clayton (MARN: 0957773)
CASE NUMBER:  1926815
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Amanda Goodier
DATE:7 March 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 March 2024 at 12:57pm

CATCHWORDS
REFUGEE – protection visa – Fiji – relative of public figure granted protection visa in Australia – surveilled, harassed and accused of training a rebel group – continuing harassment of sister – two return trips – education and skilled work – working visa refused and applicant barred from applying for another visa onshore – country information – recent elections and peaceful change of government – members of family unit wife and children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (4)(a), (c), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) CLR 379
MIAC v SZQRB [2013] FCAFC 33
SZBQJ v MIMIA [2005] FCA 143
SZIGC v MIAC [2007] FCA 1725
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 September 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 6 September 2018. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicants faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicants would face significant harm for any reason on their return to Fiji. A copy of the delegate’s decision was provided to the Tribunal.
The first named applicant appeared before the Tribunal on 5 February 2024 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims for protection
The applicant’s claims in his protection visa application are summarised as follows:
·The applicant travelled to Australia to study as he had experienced many problems due to his [Relative]’s status as a past [Occupation] in Fiji.
·His [Relative]’s name is [Mr A].
·The applicant tried to obtain residency in Australia through study and work because his knowledge was that it was difficult to obtain asylum in Australia even with genuine claims such as his.
·The applicant briefly returned to Fiji while in Australia but was nervous during his time there.
·He is more fearful now due to deteriorating circumstances.
·The applicant was repeatedly harassed by officials in Fifi due to his relationship to his [Relative], [Mr A]. The applicant’s wife was also affected.
·The applicant did not seek assistance from the authorities as the applicant is the [Relative] of [an Occupation] from [Occupational information, before] Frank Bainimarama’s 2006 coup. The applicant’s [Relative], [Mr A], was [tortured] by the military following the 2006 coup and later sought asylum successfully in Australia.
·The applicant’s [Relative] remains well known throughout Fiji, therefore cannot relocate.
·The applicant has been refused a visa in Australia and unable to succeed with a review of that application as his employer does not have a current nomination in place. He is barred by s48 from applying for another visa in Australia. He holds a valid skills assessment and high scoring IELTS result. They would be able to leave and apply offshore for another visa. However, they are afraid to return to Fiji due to the harassment they received from the authorities during their last visit.
·They fear arrest and/or being taken to the military barracks and physically harmed. In the present tense atmosphere in Fiji in the lead up to the 2018 elections abuses are becoming more often. As the [Relative] of a [former Fijian Occupation] the applicant has been targeted in the past and fears this will happen again, and he will face harm as a way of hurting his [Relative]. As he has been in Australia for several years living with his family and [Relative], he fears the Fijian authorities will be even more likely to target him.
·The applicant is fearful of arrest, detention at a military camp and physical abuse due to his relationship with his [Relative],
·The applicant does not believe the Bainimarama government will protect him from its own abuses.
·He is unable to relocate anywhere else in Fiji.
In support of his application for protection, the applicant provided a statement from his [Relative], [Mr A], providing information on his [Occupational history in Fiji] and relationship with Bainimarama. He provided information on the events following the 2006 coup and his treatment. He refers to his [Relative] being detained at military checkpoints solely because he was the [Relative] of [Mr A]. The family farm was raided as his [Relative] was accused of conducting military style training. In [Year] he was successfully granted asylum by the Australian government and continued to speak out against Bainimarama and his government. His wife and [Relative 2] continue to be followed when in Fiji and a Nadi Airport official tried to confiscate his wife’s Australian passport [in] January 2019.
A copy of a letter of complaint to the CEO, Fiji Revenue and Customs Service dated [January] 2019 from the applicant’s mother was provided. The letter complained about the attempt to take the passport at the time of her departure from Fiji [in] January 2018.
A further detailed statement was provided by the applicant in support of his application for protection. The applicant set out his [Relative]’s involvement in [Occupational sector] and the aftermath of the 2006 coup where his [Relative] lost his job, was persecuted, imprisoned and tortured by the Bainimarama government. He states he was arrested a bit when he was in Fiji. Following his [Relative]’s departure in [Year], he was frequently stopped at checkpoints and held under guard. While he was not beaten, he felt it was a demonstration of their power. He was fearful each time as he did not know what would happen or how he would be treated. The harassment and surveillance continued, and they relocated to their farm. One day soldiers arrived to verify reports he was training a rebel group on the farm. His [Relative]’s pension would be withheld on occasion. He completed his tertiary studies but claims he was overlooked for employment on two occasions because he was his [Relative]’s [Relative]. He received phone calls, including in Australia, telling him to tell his [Relative] to stop making statements about Fiji. His sister, who is living in their family home, is regularly harassed but she works in the private sector. He worries about the future and opportunities for progressing in life and work. He worries he may be harmed in the future. He returned to Fiji in 2016 and 2017 and was followed again. He has not applied for protection earlier as he understood it would be hard to get and wanted to use the education and work pathways for permanency. He worries about job security if he returns to Fiji and of any physical harm. He assisted his [Relative at times] but has had no [involvement] since then.
The applicant provided several articles from 2006 and 2008 as well as one from 2018. He also provided Country Information dated 2008 and 2010.
The other members of the family unit have not raised any claims of their own. The applicant at hearing confirmed that the other family members had no claims of their own and were relying on his claims for protection.
The applicant confirmed at hearing that he had prepared the application himself with the assistance of a lawyer. He has copies of his statements and the application he signed as being true and correct.
The applicant confirmed he was married with four children, and apart from his eldest son who was attending school in Queensland and living with a maternal uncle, they were all living in [Town 1]. His parents were also living in [Town 1].
The applicant confirmed that in Fiji his family have a home in [Town 2], and he has a house on a homestead belonging to his father’s mother’s family. The homestead is in the mountains in central Fiji. His sister and husband live in the home in [Town 2] and one of his nephews takes care of the house on the homestead. The homestead is leased land that can be farmed. The lease expired in 2020 and the family is still trying to get another lease approved. He is confident it will be renewed but probably for a smaller area of land. He lived most of his life on the homestead, apart from the time he was studying.
He completed his education to the level of Bachelors degree in Fiji. He then worked in the [Employer] office for about 18 months before travelling to Australia to further his study. While he was studying in Fiji, he worked on the family farm.
In Australia he completed a Masters in [Subject 1] and more recently a Diploma in [Subject 2]. He has worked in a variety of positions, all in Western Australia. Apart from when she was on maternity leave, his wife has also consistently worked in Western Australia.
The applicant confirmed his religion as [Denomination] and that he is an indigenous Fijian. Apart from [assisting his Relative], the applicant has had no other involvement in [Occupational sector] in Fiji.
Country of nationality
The applicants travelled to Australia on genuine Fijian passports. They have at all times stated that they are citizens of Fiji and have been assessed on that basis by the Department. The Tribunal finds they are Fijian citizens and has assessed their claims against Fiji as the country of nationality and the receiving country.
The Tribunal accepts, based on the evidence provided in the form of a marriage certificate, that the second named applicant is the spouse of the first named applicant and therefore a member of the first named applicant’s family unit.
The Tribunal accepts, based on the evidence provided in the form of individual birth certificates, that the second, third, fourth and fifth named applicants are biological children of the first named applicant and the second named applicant are therefore members of the first named applicant’s family unit.
Findings and Reasons
The applicant fears harm if returned to Fiji based on his relationship to his [Relative], [Mr A], who is a former [Occupation]. His [Relative] was [Occupational details, before] Frank Bainimarama’s 2006 coup. His [Relative] was an outspoken critic of Frank Bainimarama. Following the coup, his [Relative] was detained and tortured by the authorities, eventually fleeing to Australia in [Year] where he obtained protection.
The applicant claims that during his time in Fiji and following the coup, particularly after his [Relative] left the country, he was frequently harassed, detained, monitored, and constantly lived in fear of being arrested and imprisoned because of his relationship to his [Relative]. His wife was so fearful that she moved to her parent’s home after the coup for a period.
The applicant claims that Frank Bainimarama is vindictive and will continue to be vindictive to his [Relative] and his [Relative]’s family, particularly if he has the power to do so.
The Tribunal discussed its concerns with the applicant over his return to Fiji on two occasions, once in 2015 and another in 2017 despite his fears of harm. The applicant told the Tribunal that he felt there was more transparency, but he was still fearful returning to Fiji. He felt the transparency may offer him some protection.
The Tribunal also raised its concern over his delay in applying for protection. He arrived in Australia on a student visa in December 2013 after being refused tourist visas on two occasions in 2009 and 2010 yet did not apply for protection until September 2018. The applicant told the Tribunal that protection was his last option. He wanted to obtain a permanent visa through the student/skilled visa program but was not successful with his application for a skilled visa. The Tribunal put to him that his [Relative] had sought protection in Australia so he would be aware of the process, but despite claiming to be fearful of returning, did not apply until his application for a skilled visa was refused. The applicant told the Tribunal that his impression was that getting a protection visa was difficult, hence trying to obtain permanency through another stream.
The Tribunal accepts based on the evidence provided that the applicant is [Mr A]’s [Relative], a former prominent Fijian Member of Parliament and outspoken critic of Frank Bainimarama and who, following the 2006 coup, was detained and tortured by the authorities under Bainimarama’s government, before seeking protection in Australia in [Year][1]. The Tribunal accepts the applicant’s evidence that his [Relative] continues to support the SLD which is now the Social Democratic Liberal Party (SODELPA).
[1] [Country of Origin Information Section Reference]
The Tribunal accepts the applicant’s evidence, supported by country information[2] that indicates those who were perceived or seen as challenging the Bainimarama Government were at risk of negative attention including arrest or detention, that the applicant was regularly harassed, stopped at checkpoints, detained, monitored and lived in constant fear of being detained, experiencing physical abuse and tortured while living in Fiji. The Tribunal accepts that he constantly feared what might happen in the future while Frank Bainimarama was Prime Minister.
[2] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.10, 20230322095436; 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.16, 20220520095336
As discussed with the applicant, the current political situation in Fiji is different to that in 2018 when the applicant lodged his application for protection. The Tribunal acknowledged the country information provided by the applicant but gives it little weight as it refers to political circumstances in 2018 and earlier and the political circumstances in Fiji has changed since then.
Country information indicates that there has been no significant political unrest or deterioration of government functions since the Rabuka Government was elected in December 2022. The SODELPA is in coalition with the People’s Alliance (PA) and National Federation Party (NFP). The transition of power has been peaceful with the military refusing to intervene.[3] Former Prime Minister Frank Bainimarama was suspended from Parliament in February 2023 after giving a divisive speech, resigning from Parliament the following month but remaining leader of the FijiFirst Party.[4] The Rabuka Government has taken steps to encourage critics of the former Bainimarama Government to return. People who were forced to leave Fiji after being critical of the former Government have been encouraged to return.[5]
[3]'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036; 'No coup says RFMF Commander', FBC News, 20 July 2023; 20230720090110;‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023, 20230712115112
[4] ‘In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023, 20230605132703; ‘Former Fiji prime minister Frank Bainimarama pleads not guilty to abuse of office’, The Guardian, 10 March 2023, 20230317103545; ‘Fiji's former prime minister Frank Bainimarama resigns from parliament, will not quit politics’, ABC News, 8 March 2023, 20230712115333
[5] 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244; 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.164, 20230328142801

The applicant agreed that the political situation in Fiji is different to when he lodged the application for protection. He told the Tribunal that apart from [assisting his Relative] in two elections before 2006, he has not been involved in Fijian politics in any capacity. His fear is that Former Prime Minister Frank Bainimarama and his party could get back in power. He referred to threats by the SODELPA to pull out of the alliance and form government with FijiFirst. He is fearful of what might happen in the future and if the coalition breaks down, there may be a possibility of something happening.
The Tribunal referred to his evidence that his [Relative] was a supporter of the SODELPA and if a decision was made to form a coalition with FijiFirst, then his [Relative] would be supporting a Government with Frank Bainimarama involved. The applicant responded that Bainimarama is vindictive, and he will still be vindictive to his [Relative] and the family. The Tribunal referred to the country information[6] which indicates that the political situation in Fiji remains stable and appears to be for the reasonably foreseeable future. The applicant agreed that the political circumstances now in Fiji are very different to the political circumstances in 2018 and acknowledged that this was his difficulty with his claim.
[6] Department of Foreign Affairs and Trade, Fiji - Country Information - Political Update, 2 August 2023.
The Tribunal accepts that the applicant fears returning to Fiji based on his political and/or imputed political opinion as the [Relative] of [Mr A], a [former Fijian Occupation, before] the 2006 coup by Frank Bainimarama]. The Tribunal accepts that the applicant has a subjective fear of returning to Fiji based on his political and/or imputed political opinion.
The Tribunal has considered the applicant’s claim that the current Fijian coalition government, elected in 2022, is unstable and there is a possibility it may break down in the future and Frank Bainimarama’s party return to govern Fiji. The Tribunal puts weight on more recent country information before it which suggests that the transition to a new government has so far resulted in a functioning government. Nothing on the material before the Tribunal suggests political or civil unrest or a breakdown in the coalition government now or in the reasonably foreseeable future[7].
[7] Department of Foreign Affairs and Trade, Fiji - Country Information - Political Update, 2 August 2023.
While the Tribunal accepts that the applicant will be identified as [Mr A]’s [Relative] on his return to Fiji, the Tribunal does not accept that he has an adverse profile that will bring him to the negative attention of the authorities on his return to Fiji. Apart from [assisting] in the 2001 and 2006 elections on behalf of his [Relative], the applicant’s evidence is that he has not engaged in any politics in any capacity. The Tribunal places weight on the country information that the current Fijian Government is encouraging the return of those who left under the former government[8].
[8] [8] 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244; 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.164, 20230328142801
For these reasons, the Tribunal finds that the applicant faces no real chance of serious harm on account of his political or imputed political opinion, or for any other reason arising from the political situation in Fiji more generally, including the risk of political or civil unrest or a breakdown in the coalition government, in the reasonably foreseeable future.
The applicant claimed it would be hard for him to find employment and he is concerned about job security if he returns to Fiji. As discussed with the applicant, he was employed in Fiji, and has consistently been employed in a variety of jobs in Australia. He has furthered his studies and completed a Masters in [Subject 1] and more recently a Diploma in [Subject 2] in Australia. He can return to the homestead and has the support of family to assist him if he returns to Fiji to re-establish himself.
The Tribunal finds that any economic disadvantage the applicant may experience on return to Fiji in the form of disparity in wages or conditions of employment or from a delay in finding employment to not be for any of the reasons in s 5J(1)(a) of the Act. Based on the applicant’s evidence as to his work history in Fiji and Australia, the Tribunal finds that the applicant would be able to find employment in Fiji and that he would have access to the necessary means to subsist even if he were unemployed for a short period.
The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[9] The economic conditions faced by the applicant in Fiji would apply to all Fijian citizens. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c); that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct; are not satisfied.
[9] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
Further, the Tribunal finds that any economic disadvantage the applicant may experience on return to Fiji does not amount to serious harm and therefore the requirement in s 5J(4)(b) is not satisfied. Serious harm can involve significant economic hardship, and this must threaten a person’s capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[10]
[10] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political or imputed political opinion, or due to economic circumstances or for any other reason if he returns to Fiji now or in the reasonably foreseeable future.
Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason now, or in the reasonably foreseeable future, if he returns to Fiji.
Complementary protection findings
Having found the applicant is not a refugee, the Tribunal will now consider whether he meets the criterion for complementary protection under s 36(2)(aa). That is whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
Relevantly, s 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
In this case, the applicant’s claims to complementary protection for reasons of political or imputed political opinion are essentially the same claims made for protection as a refugee. Given the Tribunal’s findings of fact in relation to the applicant’s refugee claims and given that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ of persecution, the Tribunal finds that these claims can no more succeed as complementary protection claims than they do as refugee claims.
Therefore, the Tribunal finds that the applicant faces no real risk of significant harm on account of his political or imputed political opinion, or for any other reason arising from the political situation in Fiji more generally, including the risk of political or civil unrest or a breakdown in the coalition government.
The Tribunal has considered applicant claims he will find it hard to re-establish himself and find employment if he is removed to Fiji. The applicant has not claimed, and there is no suggestion, that he will be subject to the death penalty, the arbitrary loss of life, or torture.
In relation to the other forms of significant harm, the Tribunal notes:
·The definition of ‘cruel or inhuman treatment or punishment’ states that it means an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
·Similarly, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
The Tribunal accepts, based on the applicant’s evidence, that he will suffer some hardship if removed to Fiji. However, this is the result of general economic conditions in that country. It is not because of any conduct intended to inflict severe pain or suffering, or pain or suffering that, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature. Nor is it a result of an act or omission which causes, and is intended to cause, extreme humiliation on the applicants. As such, the Tribunal finds that, while the applicant’s fears of economic hardship are genuine, they do not entail ‘significant harm’ as defined in s.36(2A).
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that the applicant will face significant harm for any reason on his return to Fiji.
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Amanda Goodier
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2147

7 March 2024

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