1929564 (Refugee) - [2024] AATA 1405

1929564 (Refugee) [2024] AATA 1405 (2 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Muhammad Iqbal Chaudhry
CASE NUMBER: 1929564

COUNTRY OF REFERENCE: Fiji
MEMBER:Patricia Tyson
DATE:2 April 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 April 2024 at 11:03am
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinion – opposition to the current government – prison officer – political instability – employment – access to healthcare – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
SZRSN v MIAC [2013] FCA 751
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicants, who claim to be citizens of Fiji, are a married couple – [Applicants 1 and 2] – and their [age] year old son who, although an adult, I will refer to as [Applicant 3] to distinguish him from his father. According to information in their visa application, the applicants arrived in Australia in late 2018 and applied for protection visas on 10 January 2019. Prior to this, they had travelled to Australia in July 2018 for several weeks for a church conference.
In their visa application, the applicants claimed to fear harm in Fiji because of [Applicant 1’s] previous work as a prison officer, his political views and their indigenous Fijian ethnicity. Referring to country information about the situation in Fiji, the delegate refused to grant their visas. The delegate found there was not a real chance of [Applicant 1] being seriously harmed on the basis of his political opinion or as an indigenous Fijian. Nor was the delegate satisfied there was a real risk he would suffer significant harm.
CLAIMS AND EVIDENCE
Evidence before the Department
In a statement attached to the protection visa application, [Applicant 1] made claims to be afraid for his life, safety and the safety of his family in Fiji. The claims can be summarised as follows:
·The applicants left Fiji because they felt unsafe. The current government had been a threat to their family and [Applicant 1] did not want the family to suffer.
·In Australia [Applicant 1] has a lot of rights and can speak openly and voice his opinion. He had felt suppressed in Fiji and his human rights were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1929564 (Refugee)

Details

AGLC: 1929564 (Refugee) [2024] AATA 1405
Case: [2024] AATA 1405
Decision Date: 2 April 2024

CaseChat Overview and Summary

The applicants, a married couple and their adult son, sought review of a delegate's decision to refuse them protection visas. The applicants, who are indigenous Fijians, claimed they feared harm in Fiji due to the first applicant's former employment as a prison officer, his political views opposing the current government, and their ethnicity. They arrived in Australia in late 2018 and applied for protection visas in January 2019, having previously visited Australia for a church conference.

The core legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for reasons of race or political opinion, and whether there was a real risk of them suffering significant harm if returned to Fiji. Specifically, the Tribunal had to consider if the first applicant's experiences as a prison officer, his criticisms of the government, and his indigenous Fijian status constituted grounds for protection under the Migration Act 1958 (Cth). The Tribunal also needed to assess whether effective protection measures were available in Fiji and if the applicants could reasonably relocate within Fiji to avoid any potential harm.

The Tribunal affirmed the delegate's decision, finding that the applicants had not established a real chance of being persecuted or suffering significant harm for reasons of their political opinion or indigenous Fijian race. The Tribunal considered the country information regarding Fiji and the applicants' claims, concluding that the evidence did not demonstrate a well-founded fear of persecution. Consequently, the Tribunal was not satisfied that Australia had protection obligations towards the applicants, and they therefore did not meet the criteria for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND TO THE REVIEW The applicants, who claim to be citizens of Fiji, are a married couple – [Applicants 1 and 2] – and their [age] year old son who, although an adult, I will refer to as [Applicant 3] to distinguish him from his father. According to information in their visa application, the applicants arrived in Australia in late 2018 and applied for protection visas on 10 January 2019. Prior to this, they had travelled to Australia in July 2018 for several weeks for a church conference. In their visa application, the applicants claimed to fear harm in Fiji because of [Applicant 1’s] previous work as a prison officer, his political views and their indigenous Fijian ethnicity. Referring to country information about the situation in Fiji, the delegate refused to grant their visas. The delegate found there was not a real chance of [Applicant 1] being seriously harmed on the basis of his political opinion or as an indigenous Fijian. Nor was the delegate satisfied there was a real risk he would suffer significant harm. CLAIMS AND EVIDENCEEvidence before the Department In a statement attached to the protection visa application, [Applicant 1] made claims to be afraid for his life, safety and the safety of his family in Fiji. The claims can be summarised as follows:·The applicants left Fiji because they felt unsafe. The current government had been a threat to their family and [Applicant 1] did not want the family to suffer. ·In Australia [Applicant 1] has a lot of rights and can speak openly and voice his opinion. He had felt suppressed in Fiji and his human rights were restricted. He cannot fight for his rights in Fiji because the unions do not have a voice. He had to follow directives from the top and could not ask questions. He is deprived of his freedom of speech and cannot criticise the government because it will result in his being arrested and taken to task by the special joint force of the Police and Military. People are taken to court and charged for talking against the government. He cannot seek assistance because the authority would know. [Applicant 1] criticises the government and speaks freely in Australia. He is very vocal and is able to challenge the Fiji government and its policies. ·[Applicant 1] had been medically recommended not to do physical exercise and training. He presented medical certificates to his employers at the Prison Force, but they forced him into doing exercises. He was injured while at work. It negatively affected his health and made him psychologically refuse the government and leadership. He was mistreated during work but was not able to lodge a complaint out of fear he would lose his job. ·In Fiji [Applicant 1] was aggressive, angry and depressed. His health was suffering. He feels depressed looking at how the government works as some leaders have no consideration of the people, and know they can abuse their status and get away with it. ·[Applicant 1’s] rights as an indigenous person (iTaukei) have been deprived and supressed. He does not want his son to suffer as it will have negative impacts on his future. The situation in Fiji is not safe for his son and family. The village protocol and traditional values have been taken away. [Applicant 1] cannot stand seeing the psychological effect it has on the family elders who he looks to for moral and traditional training. This has made him depressed, psychologically stressed and aggressive. ·[Applicant 1] cannot move to another part of the country because it is the government that is a threat. If he moves to his village it could implicate the whole village and he would be seen as making trouble. He does not want the village to suffer and be stigmatized.

Evidence

Evidence Before The Court

In their visa application, the applicants claimed to fear harm in Fiji because of [Applicant 1’s] previous work as a prison officer, his political views and their indigenous Fijian ethnicity. Referring to country information about the situation in Fiji, the delegate refused to grant their visas. The delegate found there was not a real chance of [Applicant 1] being seriously harmed on the basis of his political opinion or as an indigenous Fijian. Nor was the delegate satisfied there was a real risk he would suffer significant harm. CLAIMS AND EVIDENCEEvidence before the Department In a statement attached to the protection visa application, [Applicant 1] made claims to be afraid for his life, safety and the safety of his family in Fiji. The claims can be summarised as follows:·The applicants left Fiji because they felt unsafe. The current government had been a threat to their family and [Applicant 1] did not want the family to suffer. ·In Australia [Applicant 1] has a lot of rights and can speak openly and voice his opinion. He had felt suppressed in Fiji and his human rights were restricted. He cannot fight for his rights in Fiji because the unions do not have a voice. He had to follow directives from the top and could not ask questions. He is deprived of his freedom of speech and cannot criticise the government because it will result in his being arrested and taken to task by the special joint force of the Police and Military. People are taken to court and charged for talking against the government. He cannot seek assistance because the authority would know. [Applicant 1] criticises the government and speaks freely in Australia. He is very vocal and is able to challenge the Fiji government and its policies. ·[Applicant 1] had been medically recommended not to do physical exercise and training. He presented medical certificates to his employers at the Prison Force, but they forced him into doing exercises. He was injured while at work. It negatively affected his health and made him psychologically refuse the government and leadership. He was mistreated during work but was not able to lodge a complaint out of fear he would lose his job. ·In Fiji [Applicant 1] was aggressive, angry and depressed. His health was suffering. He feels depressed looking at how the government works as some leaders have no consideration of the people, and know they can abuse their status and get away with it. ·[Applicant 1’s] rights as an indigenous person (iTaukei) have been deprived and supressed. He does not want his son to suffer as it will have negative impacts on his future. The situation in Fiji is not safe for his son and family. The village protocol and traditional values have been taken away. [Applicant 1] cannot stand seeing the psychological effect it has on the family elders who he looks to for moral and traditional training. This has made him depressed, psychologically stressed and aggressive. ·[Applicant 1] cannot move to another part of the country because it is the government that is a threat. If he moves to his village it could implicate the whole village and he would be seen as making trouble. He does not want the village to suffer and be stigmatized.

Decision

Reasons for decision

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. Patricia TysonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.