1931599 (Refugee) - [2023] AATA 1132

1931599 (Refugee) [2023] AATA 1132 (6 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1931599
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Wayne Pennell
DATE:6 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 February 2023 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – freedom of expression – social media activities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 24 October 2019.
The applicants who claim to be citizens of Fiji applied for protection visas.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Fiji, there was a real risk they would suffer significant harm. The delegate refused to grant the visas[3] on the basis that the applicants were not refugees as defined by the Act[4] and therefore they were not persons in respect of whom Australia has protection obligations.[5]
[2]The applicant’s application was received by the Department of Home Affairs on 17 January 2019.
[3]The delegate’s refusal was made on 24 October 2019.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicants were unrepresented in relation to the review, and they filed an application with the Tribunal for a review of the delegate’s decision.[6] Accompanying that application was a copy of the delegate’s decision. At a subsequent time, the Tribunal wrote to the applicants advising them that it had considered all the material relating to their application but was unable to make a favourable decision on that information alone.[7]
[6]The applicant’s review application was filed with the Tribunal on 6 November 2019.
[7]The Tribunal advised the applicant on 6 December 2022.
The Tribunal invited the applicants to give oral evidence and present arguments at a hearing.[8]They subsequently advised the Tribunal that they would appear at the review hearing to give oral evidence and present arguments.
[8]The Tribunal’s review hearing was listed for 2 February 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the…

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 1931599 (Refugee)

Details

AGLC: 1931599 (Refugee) [2023] AATA 1132
Case: [2023] AATA 1132
Decision Date: 6 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the protection visa claims of two applicants originating from Fiji. The dispute centred on whether the applicants had established a real risk of significant harm or serious harm if returned to Fiji, thereby engaging Australia's protection obligations. The primary applicant alleged he could not express political opinions or criticise the Fijian government without facing reprisals such as arrest or victimisation by the police, and that this inability to speak out caused him to act aggressively towards his family.

The Tribunal was required to determine if there were substantial grounds for believing that the applicants would suffer significant or serious harm as a necessary and foreseeable consequence of their removal to Fiji. This involved assessing whether the applicants were persons in respect of whom Australia had protection obligations under the Migration Act 1958 (Cth). Specifically, the Tribunal had to consider the primary applicant's claims of persecution based on imputed political opinion and the alleged inability to express views on the Fijian government, as well as the claim that this situation led to aggressive behaviour towards his family and affected his eyesight due to stress.

The Tribunal reasoned that the applicants bore the responsibility to specify the particulars of their claims and provide sufficient evidence to establish them, and that the Tribunal was not obliged to make their case for them or accept allegations uncritically. While acknowledging Fiji's history of coups, the Tribunal noted that democratic elections had been held since the last coup in 2006 and that the country had a functioning parliamentary system. The Tribunal found that the primary applicant had not provided any tangible or probative evidence to validate his claims of persecution or the resulting harm. The Tribunal specifically rejected the claim that the inability to express political views led to aggressive behaviour towards his family, noting a lack of evidence of such behaviour or that the Fijian government's actions caused it. Similarly, the claim regarding eyesight being affected by stress was deemed vague, weak, and tenuous, lacking supporting evidence.

Consequently, the Tribunal concluded that there was no real chance of the applicants being subjected to persecution in Fiji for any of the reasons provided in the Act. The Tribunal found that the applicants had not satisfied the criterion that Australia should apply protection obligations to them. Therefore, the Tribunal affirmed the decision under review, meaning the protection visa applications were refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal is not required to make the applicants’ case for them. It is their responsibility to specify all particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of their claims, or to establish or assist in establishing the claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicants.[27] [26]Migration Act 1958 (Cth), s 5AAA.[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.APPLICANTS’ BACKGROUND [The primary applicant] and [the second applicant] originate from Fiji. They were married [in] October 2007, and they have three children aged [age], [age] and [age]. Both applicants completed year [level] of their education and they described themselves as Christians of the Uniting Church faith. The applicants were granted tourist visas on 1 October 2018, and they travelled to Australia for a three month holiday, arriving [in] October 2018. When they travelled to Australia, the applicants’ children did not travel with them, instead they were left in the care of their paternal grandparents. When the applicants lived in Fiji, the primary applicant worked as a [Occupation 1] and the second applicant was employed in [Industry 1]. Since their arrival in Australia, the primary applicant has been employed as a [Occupation 2] in a [workplace] and the second applicant is employed as an [Occupation 3] in [a different workplace]. APPLICANTS’ CLAIMS AND EVIDENCE TO SUPPORT THE CLAIMS In support of the applicants’ claims, the primary applicant provided a lengthy statement which outlined the particulars of the claims. It is noted by the Tribunal that the statement accompanied the applicants’ protection visa application when that application was lodged with the Department. The Tribunal recognises that contained within the application was an explanation that the applicants had the opportunity when lodging their application to provide all of the details of the protection claims relied upon. The Tribunal also notes that on 29 January 2019, the delegate wrote to the applicants and acknowledged the receipt of their application. In doing that, the delegate advised the applicants of the opportunity to provide additional information relating to their claims prior to the delegate making the primary decision. The Tribunal notes that at the time of the delegate making the primary decision, no further information or evidence was provided. In undertaking an assessment of the applicants’ application, the Tribunal notes that the second applicant does not have any claims. The claims relied upon are those advocated by the primary applicant. In respect to the primary applicant’s claims, he claimed that within Fiji, he was not able to speak out and express a political view or criticise the Fijian government. If a political opinion was expressed or criticism was made of the government, then there were reprisals by being arrested and victimised by the police. Although he does not claim that he was ever arrested or victimised by the police when he lived in Fiji, he said that not being able to express a point of view about the Fijian government caused him to act aggressively and violently towards his family. However, the Tribunal observes that he has not produced any evidence to support the claim that the Fiji government did anything in a way that caused him to be violent to his family, and nor did he provide any evidence that he actually displayed violent behaviour towards his family.

Evidence

Evidence Before The Court

When the applicants lived in Fiji, the primary applicant worked as a [Occupation 1] and the second applicant was employed in [Industry 1]. Since their arrival in Australia, the primary applicant has been employed as a [Occupation 2] in a [workplace] and the second applicant is employed as an [Occupation 3] in [a different workplace]. APPLICANTS’ CLAIMS AND EVIDENCE TO SUPPORT THE CLAIMS In support of the applicants’ claims, the primary applicant provided a lengthy statement which outlined the particulars of the claims. It is noted by the Tribunal that the statement accompanied the applicants’ protection visa application when that application was lodged with the Department. The Tribunal recognises that contained within the application was an explanation that the applicants had the opportunity when lodging their application to provide all of the details of the protection claims relied upon. The Tribunal also notes that on 29 January 2019, the delegate wrote to the applicants and acknowledged the receipt of their application. In doing that, the delegate advised the applicants of the opportunity to provide additional information relating to their claims prior to the delegate making the primary decision. The Tribunal notes that at the time of the delegate making the primary decision, no further information or evidence was provided. In undertaking an assessment of the applicants’ application, the Tribunal notes that the second applicant does not have any claims. The claims relied upon are those advocated by the primary applicant. In respect to the primary applicant’s claims, he claimed that within Fiji, he was not able to speak out and express a political view or criticise the Fijian government. If a political opinion was expressed or criticism was made of the government, then there were reprisals by being arrested and victimised by the police. Although he does not claim that he was ever arrested or victimised by the police when he lived in Fiji, he said that not being able to express a point of view about the Fijian government caused him to act aggressively and violently towards his family. However, the Tribunal observes that he has not produced any evidence to support the claim that the Fiji government did anything in a way that caused him to be violent to his family, and nor did he provide any evidence that he actually displayed violent behaviour towards his family. During the hearing the primary applicant was asked if he suffered a psychological condition because of the issues he complained about. His response was that his eye sight was affected because of the stress he had been placed under living in Fiji. When this evidence was explored further it seems that he consulted a doctor about his eyesight. He was then referred to a specialist who prescribed him spectacles to allow him to clearly see into the distance. There was no evidence provided by the applicants to validate the claim that the primary applicant’s circumstances in Fiji caused him to act aggressively or to suffer any related psychological symptoms or that it affected hi eyesight. The Tribunal does not accept this claim on the basis that it is vague, weak and tenuous.

Decision

Reasons for decision

It is accepted by the Tribunal that Fiji’s history reveals that there have been coups, with the last coup in 2006. The history of Fiji also shows that since the last coup there have been democratic elections, with the most recent elections held in December 2022. Although Frank Bainimarama became Fiji’s Prime Minister after the last coup, the Tribunal does not accept that Fiji had been under any type of dictatorial leadership during that period. The DFAT report provides that: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.[53] [53]The DFAT Country Information Report, Fiji, dated 20/05/2022, page 9, paragraph 2.28.Conclusion In assessing the applicants’ claim in respect to them having an imputed political profile, it is the Tribunal findings that they have not provided any tangible or probative evidence to validate their claims and the evidence does not support the hypothesis that a real risk exists whereby they will suffer significant harm or there is a real chance that they would suffer serious harm if they were to return to Fiji. The Tribunal is of the view that any reasonable assessment based on all the claims raised by the applicants and the evidence they used to support those claims would conclude that there is not a real chance of them being subjected to persecution in Fiji for any of the reasons provided in section 5J(1)(a) of the Act. Therefore, the Tribunal does not accept that the applicants are refugees as defined in section 5H of the Act, and nor have the applicants satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to them.Refugee findings The Tribunal has carefully considered the applicants’ claims that they have a well-founded fear that if they returned to Fiji, they will be persecuted because they cannot outwardly express their opinions about the Fijian government; and they had attended political protests which raised their imputed political profiles. They also claim that they cannot relocate within Fiji for protection because the issue they complained of exists all over Fiji. They claim that they could not be protected within Fiji, and even if they did relocate to another locality within Fiji, they would still experience harm because the matters they complain of are spread all across Fiji. The Tribunal was told by the applicants that they had lived and worked in Fiji, and they had not experienced any harm when living there. The Tribunal finds that these claims are vague, weak and tenuous and they were not accepted, and the Tribunal rejects them.

Ratio Decidendi

Legal Principle Established

Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[23][23]Migration Act 1958 (Cth), s 36(3).MANDATORY CONSIDERATIONS In accordance with Ministerial Direction No. 84 made under the Act,[24] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (‘the Department’), and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[24]Migration Act 1958 (Cth), s 499.CONSIDERATION OF APPLICANTS’ CLAIMS AND THE EVIDENCE The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Fiji, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[25] [25]Migration Act 1958 (Cth), s 36(2). The mere fact that the applicants claim they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicants claim they 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 applicants to satisfy the Tribunal that all the statutory elements are made out. The Tribunal is not required to make the applicants’ case for them. It is their responsibility to specify all particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of their claims, or to establish or assist in establishing the claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicants.[27] [26]Migration Act 1958 (Cth), s 5AAA.[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.APPLICANTS’ BACKGROUND [The primary applicant] and [the second applicant] originate from Fiji. They were married [in] October 2007, and they have three children aged [age], [age] and [age]. Both applicants completed year [level] of their education and they described themselves as Christians of the Uniting Church faith. The applicants were granted tourist visas on 1 October 2018, and they travelled to Australia for a three month holiday, arriving [in] October 2018. When they travelled to Australia, the applicants’ children did not travel with them, instead they were left in the care of their paternal grandparents.