1931426 (Refugee)

1931426 (Refugee) [2022] AATA 4886 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Christopher Parish (MARN: 9791199)
CASE NUMBER:  1931426
COUNTRY OF REFERENCE:                   Fiji
MEMBER:David James
DATE:17 November 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 November 2022 at 11:08am
CATCHWORDS
REFUGEE – Protection visa – Fiji – mistreatment through his employment termination – being a unionist –limited knowledge of the union – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 dependant.
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 24 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 claims to be a citizen of Fiji, applied for the visa on 4 July 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 7 November 2022 to give evidence and present arguments.
The applicant was represented in relation to the review.
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 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) 210 FCR 505.
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 issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji he would be persecuted for one of those reasons and, if not, 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The applicant, when applying for the visa, stated that:
·He left Fiji because he was being denied the right to work and to earn a living because he was involved with a union.
·He would not be allowed to work if he returned to Fiji, and he will be left without any means of support and be unable to sustain himself.
·He has experienced psychological harm by way of being mistreated and having his employment terminated resulting in economic harm and financial distress.
·If he returns to Fiji he fears that he will be mistreated by way of being refused any employment interviews as the Human Resources person responsible in whatever works department would be under directions not to employ any union member.
·Wherever he goes in Fiji especially within the government departments the same approach will apply.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 24 October 2019 to refuse the protection visa was made on the information before the delegate. Although the delegate accepted that the applicant may have been dismissed from his employment with the [Employer 1] for union membership the delegate noted that the applicant had provided no evidence of his union membership or of his dismissal and the delegate noted that no claims had been made as to the applicant having been detained, arrested or physically mistreated in the past on account of being a unionist. The delegate also noted that the applicant ceased his employment in April 2019 and arrived in Australia on [date] April 2019, which the delegate found indicated that the applicant had made only limited efforts to find alternate employment prior to departing Fiji. With reference to the Country information indicating that there had been some arrests of senior union leaders in the past and that trade union leaders and members in Fiji faced a low risk of mistreatment the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2)(aa) of the Act.
The delegate also found that the applicant was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: s 36(2)(b) and s 36(2)(c) of the Act.
Invitation to attend hearing
On 20 October 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Monday 7 November 2022. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On Friday 4 November 2022 at 10:38 am the Tribunal received an email from the applicant’s representative, Mr Christopher Parish of Australian Migration & Business Services (AMBS) in which he stated:
The writer does not know come the email and advice to applicant was missed --- except to say that the writer has been in hospital for a week which through office matters out considerably.
The review applicant is in [City 1] from which town there are only three flights a week to Brisbane, and apart from the lack of prehearing preparation he is unable to attend on the 7^th November.
The situation is unfortunate and regretted and there is no option other than to ask for a later/deferred hearing.
Kindly accept my apology and consider a later hearing.
Later that day the Tribunal after making its own enquiries responded to the applicant’s representative, stating that:
The presiding Senior Member notes that two automated SMS hearing reminders were sent to your telephone number (applicant) which advise you of your hearing date and reminded you to check the details of the hearing invitation. In this regard, we note that there has been no contact with the Tribunal until today in relation to your inability to attend your hearing.
Further, the presiding Senior Member places you on notice that you have apparently misled the Tribunal as to flights leaving [City 1] from Brisbane as the Tribunal’s own enquiries indicate that there are daily flights between the two respective cities.
The hearing will therefore proceed as set out below.
The applicant’s representative replied to the Tribunal at 11:35 am on Friday 4 November 2022 stating that:
The writer needs to mention that the last time he was in [City 1] he personally go caught over the issue of flights back to Brisbane and had to arrange for an extended stay.
The writer MARA 97 91199 has not and would not mislead the AAT or the Immigration Dept --- as after 25 years I have an unblemished record.
In a follow up email, the applicant’s representative further stated that:
In regards to [applicant]. and the hearing scheduled for Monday 7^th November.
The under mentioned migration agent has clearly stated that the error has been his, maybe come about due to the five days in hospital and I can give evidence of that. Migration agent has been to [City 1] on different occasions and has experienced difficulties with flight times/bookings, he is not misleading the Tribunal, after 25 years of practice I have never had such a accusation.
At this late stage flight booking are difficult and expensive .. maybe $700 each way.
I can only ask again that the explained fact that communication was missed be accepted and the hearing deferred.
The Tribunal in response explained in an email on Friday 7 November at 4:24 pm (Qld time) that:
The presiding Senior Member is willing to postpone this matter to a date that is later in the week to provide the applicant with further time to travel to Brisbane. The proposed dates and times are as follows:
1) Wednesday, 9 November 2022 at either 9:30 am or 1:30 pm (Qld time); or
2) Thursday, 10 November 2022 at 1:30 pm (Qld time).
In the alternative, the presiding Senior Member is willing to accept an application for the applicant to appear at the hearing on Monday afternoon via Microsoft teams from 2 pm (QLD time). If such an application is to be made, please confirm you are going to be appearing in-person at the Brisbane registry or if you wish to make a similar application to appear remotely.
The applicant’s representative responded to the Tribunal indicating that:
The hearing on Thursday 10^th November at 1:30 PM will be accepted … Thank you.
Country information
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2020, as relevant, including ‘Employment and welfare’ at 2.18 to 2.27 where at 2.21 the report states that:
Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
As to the ‘Political System’ the report at 2.28 to 2.29 states:
Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.
There are 14 provinces and one dependency (Rotuma, a group of islands about 500 kilometres north of the main Fiji islands, about halfway between Fiji and Tuvalu) as well as 13 municipal councils. Provincial councils for iTaukei residents also exist in some places, sometimes with the input of traditional village headmen. Provincial and local governments are appointed, not elected.
‘Security Situation’ which is outlined at 2.34 of the Report and provides that:
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).
‘Political Opinion (Actual or Imputed)’ at 3.25 to 3.39 where it states at 3.25 and 3.30 that:
The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act. Media outlets and platform owners may also be subject to consequences, if they are judged to have broken the law (see Media).
‘Opposition parties’ at 3.31 to 3.39 at which at 3.32 it is reported that:
Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.
And ‘Conditions for returnees’ at 5.28 where it is reported that:
DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.
Review hearing – 10 November 2022
The Tribunal hearing was conducted at the Brisbane Registry in the English language. The applicant who appeared in person informed the Tribunal that his representative had informed him that he (representative) would not be appearing in person or by via video link or telephone. In reply to the Tribunal’s questions as to his representative the applicant confirmed that his representative continued to act for him in his application notwithstanding their non-appearance before the Tribunal at the hearing.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal confirmed that he understood the relevant statutory framework and concepts as to the refugee and complementary protection criterion which had earlier been explained to him by his representative.
The applicant confirmed his claims as those that had been outlined in his application for the visa; see paragraph 13 above. The applicant’s evidence as relevant (in summary) was that:
·He was presently living in [City 1], where he was working in [an] industry conducting [specified work]. He was earning about [amount] a year. He had been working for this company for the past four months and had previously worked for [Employer 2] for about three years doing the same type of work. Prior to working for [Employer 2] he had worked for [specified] Services at [Employer 2] for about 12 months. He explained that after arriving in Australia in 2019 he was initially employed as [occupation] until he obtained employment at [City 1] in [a specified] industry.
·He explained that prior to arriving in Australia in 2019, he had been living with his parents and his two siblings in [a] Village which is located nearby to [a city]. He informed the tribunal that his mother was a retired [occupation] and his father had worked in [a field] and was now also retired. He further explained that his sister was married and had children and looked after them whilst his brother was presently [studing]. He explained he spoke to his family two times a week and that none of his family had ever been members of a union. He explained that he had completed tertiary studies at [a university] and had later completed a [course] in [Country 1].
·He had been employed by the [Employer 1] since 2017 but his employment was terminated in April 2019. He had joined the union in 2017 when he started at [Employer 1]. He explained that he had been terminated from his employment in April 2019 together with another 1000 workers at [Employer 1]. In replying to the Tribunal, he explained that his termination letter which he retained a copy of but had not provided same to the Tribunal did not indicate a reason for his termination. When further questioned by the Tribunal as to the reason for his and the other 1000 workers having had their employment terminated, he agreed that they were so terminated during a restructure of [Employer 1]. He further agreed his termination of employment and that of the other 1000 workers was as a result of there not being sufficient work for those workers. The applicant also agreed that he was not terminated for his union membership but rather as a result of the restructuring of the [workplace].
·He explained that after his termination he had made a complaint to the union who indicated they would fight for his case. He explained that he had been terminated in April 2019 but that he could not recall the actual date but agreed that he departed for Australia on [date] April 2019. As to his travel to Australia he explained that he had booked his flight straight after his termination and within 4 to 5 days after his loss of employment and then later that month he flew to Australia.
·As to what efforts had made in seeking alternative employment prior to leaving Fiji he explained that he had attended one interview at [Employer 3] in relation to an advertised [job]. He explained that after the interview he was notified within a day that he had been unsuccessful. He explained that this was the only job application and interview that he had attended to prior to leaving for Australia. He agreed that he had made no other efforts to find alternative employment in Fiji. He further explained that since arriving in Australia he had made no attempts to enquire as to or seek out any employment opportunities in Fiji. He explained that he had copies of his application for employment at [Employer 3] but that he had not thought to bring same to the hearing.
·When questioned as to his claims the applicant explained that he believed that as he had been part of a union and had made a complaint about his termination that his name would have been put up to other government agencies and employers and that this denied him an opportunity to obtain work. He agreed that he was not a senior union member or an organiser or official of the union and had only joined because others had told him to do so when he was originally employed by [Employer 1]. When queried as to whether he had ever seen any such list in which he was nominated as a result of his union membership he agreed he had not seen any such list or been told of any such list but rather assumed that would be the case. He also agreed that when he was unsuccessful in obtaining employment with the [Employer 3] he had not been told nor was there any indication given that the reason that they did not offer him employment was his former union membership.
·When questioned as to his union membership he indicated that he had been a member for two years. He was unable to indicate what the cost of his membership was, what the name of the union was, what type of worker the union represented, who his union representative was, or the names of any of the union executive or other senior members were. As to his union card he explained he had lost same. He explained to the Tribunal that he did not know whether the union had a magazine or newsletter and that he had lost all his details of his union membership and any correspondence from his union. He further explained that although he was a member of the union, he had only joined just for the sake of joining and had not had any involvement with the union but for his complaint to the union after his employment with [Employer 1] had been terminated.
·He explained that he had made his complaint to the union after he and the other 1000 workers have been terminated by [Employer 1] because he was concerned and anxious as to their not being many opportunities for alternative employment in Fiji. He explained he was concerned about the difficulties in getting another job in Fiji because of the poor economic state of the country. In reply to the Tribunal, he explained that he held concerns that if he was returned to Fiji it would be very hard to get any job because jobs are scarce. He further stated that lots of people were coming to Australia for work as there are no opportunities for employment in Fiji.
·When questioned by the tribunal as to the reason for his application for the Visa. He agreed he had done so because of his concerns that there were no job opportunities in Fiji. He further agreed that his fears were that if he was returned to Fiji he would not be able to find a job given the poor work opportunities in Fiji. Further he stated that it was this situation rather than his union membership which reduced his opportunities of employment and his ability to support himself in Fiji.
·As to his claim of experiencing psychological harm by way of mistreatment through his employment termination and the resultant economic and financial distress. He explained that as his termination of employment was without notice and it had come through with the termination of many other workers, this had caused him anxiety as to his future employment prospects. However, now with his employment in Australia he was able to provide assistance to his family as he had been doing when employed by [Employer 1], and so he was now in a good frame of mind. He explained if he was to return to Fiji, he would again become anxious as to his employment prospects and his ability to assist his family financially. In that regard he told the Tribunal that he presently sends about $800.00 to $1,000.00 to his family on a monthly basis.
·He explained that if he returns to Fiji, it will not be a case of being refused employment interviews due to his union history but rather there are no employment interviews as there are no jobs in Fiji. He agreed with the Tribunal that it is the case that it is not that he is a unionist but rather that there are no jobs in Fiji and that is the issue as to his ability to obtain employment and sustain himself.
·The Tribunal put to the applicant that his evidence seemed to indicate that he was not being persecuted by the government because he was a unionist and that he didn’t wish to return to Fiji because of a fear of persecution due to his union membership but rather because there were no jobs in Fiji. It was further put to the applicant that his fears were that if he returned to Fiji he would be unable to obtain employment and assist his family or support himself and this was due to the economic situation in Fiji and not any other reason. The applicant agreed with these propositions stating that it was not about his union membership but that there are no employment opportunities in Fiji. He further agreed that he was seeking Australia’s protection not because he had been mistreated due to his union membership but rather to enjoy the better employment opportunities available in Australia.
·The Tribunal put to the applicant (given his understanding of the refugee criterion) that he was, on his evidence, not a refugee, to which the applicant agreed replying; Yes. The Tribunal queried whether the applicant understood the proposition and explained that what the Tribunal was asking was whether he was someone who had fears of persecution or rather someone seeking a better life through better employment opportunities, to which the applicant replied; Yes.
·The Tribunal then discussed Country information in accordance with the information outlined above at paragraph 19. As to ‘Employment and Welfare’, ‘Political System’, ‘Security Situation’, ‘Opposition parties’ the applicant replied; No comment. In relation to the information as to ‘Political Opinion (Actual or Imputed)’, the applicant’s reply was to the effect that it is not just those in senior positions but also the public don’t have freedom to speak out for fear of being persecuted. In reply to the Tribunal’s request for further information, the applicant explained that he had not himself made comments adverse to the Government of Fiji but that was his opinion. In relation to ‘Conditions for returnees’ the applicant agreed that returnees did not face any official or societal discrimination.
·The Tribunal also asked the applicant whether he was aware of any unionist having been arrested or detained and questioned as to their membership to which the applicant replied; He was not sure. He was also asked whether any of his family had ever been questioned by Fijian authorities as to his union membership to which he replied; No.
FINDINGS AND REASONS

The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be citizen of Fiji and provided a copy of his passport, based on this material the Tribunal finds that the applicant is who he says he is, and a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal; required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
Denied right to work and not allowed to work due to Union membership
As to the applicant’s claim that he was being denied the right to work and earn a living because he was involved with a union and that he would not be allowed to work if he returned to Fiji. The Tribunal notes that the applicant’s evidence was that he had joined the union for no particular reason when he had obtained his employment with [Employer 1]. He had not been a leader or official within the union and had had no involvement or engagement with the union but for his complaint to the union as to his termination of employment. The applicant was unable to provide any details as to his union membership and could not recall the name of the union, the name of his union representative or that of any officials or leaders of the union. The applicant could not identify the amount of his union dues or any details relating to union correspondence such as journals and newsletters. The applicant indicated to the Tribunal that he did not have any correspondence from the union, and he had lost his union membership card. Notwithstanding the applicant’s vague account of his union and his membership with same the Tribunal accepts that the applicant had been employed by [Employer 1] and whilst so employed was a union member. The Tribunal also accepts that the applicant together with another 1000 employees of [Employer 1] had had their employment terminated in April 2019.
However, given the applicant had been terminated together with 1000 other workers and that in evidence the applicant agreed that such termination had occurred in the context of a restructure of [Employer 1] and the subsequent redundancy of workers. The Tribunal finds that the applicant’s termination of employment with [Employer 1] was not as a result of his union membership.
As to the applicant’s claim of being denied the right to work the Tribunal notes that the applicant’s evidence was that within 4 to 5 days of his termination of employment with [Employer 1] he had booked an airfare to Australia. Further that between the time of his termination of employment in April 2019 on a date that the applicant could not recall but that was prior to his arrival in Australia on [date] April 2019, the applicant had made only one application for employment, that being for a [job]. Although he was unsuccessful in obtaining employment, he agreed that he was not informed that the reason he was unsuccessful was due to his union membership. The applicant in evidence agreed with the Tribunal that he had applied for the Visa because of the poor prospects of employment in Fiji and not because of any fears of persecution arising from his union membership.
For the reasons above the Tribunal finds that there is no real chance that the applicant will be denied a right to work and/or not be allowed to work if he was to return to Fiji in the reasonably foreseeable future for reasons of his unionism and/or any actual or imputed political opinion or through his membership of a particular social group being a union member. Therefore, the Tribunal finds that the applicant’s fears as to these claims are not well-founded.
Psychological harm
As to the applicant’s claims of psychological harm, his evidence was that as his termination of employment was without notice he had become anxious and worried about his prospects of obtaining alternative employment in Fiji, and his ability to sustain himself and assist his family. He explained to the Tribunal that if he was to return to Fiji he would again become anxious due to the poor employment prospects in Fiji and the likelihood that he would not be able to assist his family financially. The applicant also in evidence explained to the Tribunal that he had not sought or received any form of medical or psychological treatment or counselling and that his anxiousness as to employment prospects in Fiji was something that many in Fiji felt due to the current poor employment prospects in Fiji. For the reasons above and with reference to the relevant Country information as outlined above at paragraph 19 and noting the employment participation of males in Fiji. The Tribunal finds that the applicant does not face a real chance in the reasonably foreseeable future of suffering psychological harm amounting to serious harm as a result of his employment prospects in Fiji. The Tribunal finds that the applicant’s fears as to this claim are not well-founded.
Mistreatment
As to the applicant’s claims that he will be mistreated by way of being refused any employment he agreed in evidence that his fears in this regard were that due to the poor employment prospects in Fiji he was unlikely to obtain employment and that was not as a result of his union membership but rather the current economic situation in Fiji. In this regard the Tribunal again notes that the Country information as outlined above, and although the Tribunal accepts there have been challenges experienced by Fijians in obtaining employment the information provides that there has still been labour force participation by more than 70% of the male population.
Noting that the applicant applied for the Visa not because of any actual fears of persecution but rather because of the poor employment prospects in Fiji and the applicant’s own assessment with respect to the refugee criterion was that he was not a refugee. The Tribunal finds that the applicant does not face a real chance of persecution arising from his fears of mistreatment in the reasonably foreseeable future as a result of his employment prospects in Fiji.
The applicant’s fears of mistreatment arising from being denied the right to work, experiencing psychological harm as a result of such denial of work and in being refused any employment opportunities in Fiji are not well-founded.
Failed Asylum seeker
Although not claimed by the applicant the Tribunal has also considered the applicant’s position as a failed asylum seeker. The Tribunal notes that the applicant did not experience any difficulties in departing Fiji on his own passport and when considering the relevant Country information as outlined above at paragraph 19, the Tribunal finds that the applicant does not a face a real chance in the reasonably foreseeable future of being persecuted as a failed asylum seeker, as the Tribunal does not accept any of the applicant’s claims in this regard due to the vague nature of this claim, the lack of detail provided, and that it is contrary to the relevant available Country information. As such the Tribunal finds that the applicant fears as to persecution arising from being a failed asylum seeker are not well founded.
Refugee criterion
The Tribunal having considered all the applicant’s claims both individually and cumulatively does not accept any of the applicant’s claims and is not satisfied that there is a real chance of serious harm for reasons of his membership of a particular social group being a unionist, being economically prejudiced due to limited employment opportunities which are faced by the population generally in Fiji, and/or being a failed asylum seeker. The Tribunal is not satisfied on the evidence before it that there is a real chance the applicant will suffer serious harm amounting to persecution for any other reason either. The Tribunal finds that the applicant’s fear of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complimentary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2022] AATA 4886

17 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Appeal