1931243 (Refugee)
[2025] ARTA 1423
•27 February 2025
1931243 (REFUGEE) [2025] ARTA 1423 (27 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1931243
Tribunal:General Member J Cabarrús
Date:27 February 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 27 February 2025 at 1:06pm
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – freedom of expression – mental health issues – church and community involvement in Australia – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a national of Fiji as shown in his passport, applied for the visa on 13 December 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant had a political profile that would attract the adverse attention of the authorities in Fiji, in light of country information about the human rights situation in Fiji.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he meets the complementary protection criterion. These criteria broadly require a person to face a real chance of persecution for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background, summary of claims and consideration of s 106 of the ART Act
The applicant was born in Suva, Fiji [in specified year]. He visited Australia 5 times for periods ranging between around 2 weeks and 3 months in the years 2012 to 2018. He last entered Australia on a visitor visa in October 2018 and has remained here since that time.
The applicant applied for the protection visa in December 2018. He gave the Department a copy of his passport, and his application form was accompanied by a statement that broadly claimed:
a.When he [was at] school in 2000, he had his first experience of a Military coup and instability; he grew up in a country of coup culture;
b.He is losing his identity as an indigenous Fijian; his rights have been taken away and they have removed the Great Council of Chiefs;
c.Human rights and democracy are restricted or absent in Fiji, and people are restricted from expressing their opinions or challenging the government; he did not have a voice to let the public know his thoughts because he feared for his safety; he learned to keep a low profile and keep quiet to avoid being punished;
d.This affected his mental health, he became sad, depressed, suspicious, aggressive, psychologically worked up, stressed out and hot-tempered; he finally resorted to taking his life;
e.He could not seek help from his relatives or move to another place in Fiji;
f.His health has improved a lot since coming to Australia, where there is democracy and freedom of expression; he has been very vocal now and is able to challenge the Fijian government and its policies;
g.He is afraid for his life if he returns to Fiji, and it would be better to kill himself than go back there.
The delegate refused to grant the visa in October 2019 and the applicant applied to the Tribunal for a review of that decision later that month. In his review application, the applicant referred to career opportunities in Australia, his involvement in the church and community here, his desire to study and work here, and educational qualifications he had obtained, stating that he had no intention of returning to Fiji. He provided copies of government, identity and educational documents showing ties to Australia.
On 28 January 2025, the Tribunal notified the applicant of a hearing scheduled for 12 March 2025. On 2 February 2025, the applicant gave the tribunal a ‘Response to hearing notice’ form, on which he indicated that he would not participate in the hearing and requested the Tribunal to make a decision on the papers without holding a hearing. He re-sent this form to the Tribunal on 18 February 2025.
On 18 February 2025, the Tribunal wrote to the applicant advising that the very limited evidence he had provided about his claims for protection would likely to result in an unfavourable decision being made by the Tribunal, and asking him to provide any further evidence by 25 February 2025. The applicant did not respond to that email or provide any further evidence.
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) permits me to make a decision after considering the documents provided and without holding a hearing in certain circumstances. In this case, s 106(3)(a) and (b) are met because the only parties to the proceeding are the applicant and a non-participating party (the Minister for Immigration and Multicultural Affairs), and the applicant has requested the Tribunal to make its decision without holding a hearing. I therefore need to decide whether it appears that the issues for determination can be adequately determined in the absence of the parties, for the purposes of s 106(3)(c).
In reviewing a decision to refuse to grant a protection visa, I need to decide whether I am satisfied that the applicant faces a real chance of persecution in their country of nationality for a reason set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and if not, I need to decide whether I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
In this case it appears to me that the issues for determination can be adequately determined in the absence of the parties. I have a copy of the Department’s file, which includes a copy of the applicant’s identity documents, and his protection visa application form with his biographical information and his protection claims in the attached statement. He also gave the Tribunal a copy of the delegate’s decision record which sets out some of this information. Based on this information I can determine the applicant’s identity and his country of nationality (and receiving country). The applicant was also put on notice in correspondence from the Tribunal, that a key issue in this case is a lack of supporting evidence to substantiate his claims. The applicant was given the opportunity to provide further substantiating information but has not done so. In these circumstances, I am able to form conclusions about whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act based on the documents provided and in the parties’ absence.
Therefore, I consider that s 106(3) of the ART Act applies, and in accordance with the applicant’s request, I have proceeded to make a decision based on the documents provided.
In making this decision, I have considered all documents on the Department file and the Tribunal file, including those referred to above. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
Findings and reasons
It is the responsibility of the applicant to specify all particulars of their protection claims and to provide sufficient evidence to establish the claims: s 5AAA of the Act. A visa application must be rejected unless the decision-maker reaches a positive finding of satisfaction that the criteria for the visa are met: s 65 of the Act and see e.g. Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73 at [16]-[19]. In this case, the central criteria for the protection visa require the applicant to face a real chance of persecution or a real risk of significant harm in Fiji.
The evidence the applicant has given to the Department and the Tribunal (including in the brief claims in his statement), is not sufficiently detailed to satisfy me that he faces a real chance of persecution in Fiji or that 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. The applicant has provided insufficient detail about his political views, his mental health conditions, any instances of speaking out against the government, how his rights were taken away, or any discrimination, targeting or harm he has faced in the past.
Given the lack of information, I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). There is no suggestion that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa, so the applicant does not meet s 36(2)(b) or (c) either. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT
Protection visa criteria
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 below.
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 below.
Extracts from the 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.
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