1932654 (Refugee)

1932654 (Refugee) [2023] AATA 1347 (2 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932654

COUNTRY OF REFERENCE: Fiji
MEMBER:Brendan Darcy
DATE:2 March 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 2 March 2023 at 9:22am
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – family member in the Fijian military – political opinion – opposition to the government – indigenous people’s rights – fear of killing – freedom of expression – economic conditions – accessing retirement savings – corruption – return visits to Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
SZRSN (No.2) v MIBP [2014] FCCA 2482
SZRSN v MIAC [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 5 November 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 the Republic of Fiji (Fiji), applied for the visa on 15 July 2019. The delegate refused to grant the visa on the basis that the available country information did not support the applicant as having a well-founded fear of persecution for one of the five reasons mentioned under paragraph 5J(1)(a) or for a real risk of significant harm.
The applicant appeared before the Tribunal on 13 October 2022 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian (iTaukei) and English languages.
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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applcaint was born on [date] in the Fijian province of [Province 1].
A copy of the applciant’s current Fijian passport is on the departmental file ([number]). The passport expires [in] 2023.
The applicant first arrived in Australian [in] February 2015 and then departed [in] May 2015 while holding a [visitor] visa.
The applicant returned to Australia [in] November 2018 and departed [in] February 2018; and again, returned [in] February 2019 and departed [in] May 2019.
The applcaint last arrived in Australia [in] June 2019 while holding a visitor visa. She then applied for a Class XA Subclass 866 protection visa on 15 July 2019.
The applciant’s written claims for protection were provided in a written statement attached to her 866C application form at the time of application. Below is a summary of those claims:
·     Since 2006, the applicant has experienced increased pressure which goes against her moral and cultural values and the teaching which have been passed on to her by the elders and religious leaders in her community.
·     The applicant left Fiji due to the feeling that she is suppressed and that basic human rights are restricted, including that she is unable to openly voice her opinion on matters of concern. The applicant’s voice and opinion as a youth and individual is not valued. The applicant faces discrimination as a women and youth.
·     The applicant feels that she is unsafe in Fiji and her life is at risk.
·     While in Fiji, the applicant was depressed and had thoughts of suicide.
·     The applicant is concerned by government policies such as the Land Act, and the limitation on the freedom of expression as the media is controlled by the government.
·     In Fiji, people can report you to the military and police for criticising the government and the rights of Indigenous people are not recognised and this has led the applicant to feel depressed.
·     If the applicant were to return to Fiji her mental health issues will resurface, which may result in life “being taken”. The trauma will continue, and the aggressive behaviour, feeling of isolation and thoughts of suicide will return.
·     While in Fiji the applicant was aggressive and would resort to violence when angered. Her behaviour affected her family.
·     Being in Australia has helped alleviate the applicant’s fear and improve her health.
·     In Fiji, the applicant was unable to seek help as she was frightened of sharing information about the issues she was facing, as people may inform the government for which she would be reprimanded by the military and police.
·     There are no non-government organisations (NGO) or other organisations that would assist the applicant and those suffering from trauma. There is no access to counselling and advice. NGOs do not discuss issues and health risks due to their fear of damaging their relationship with the government. The NGOs may inform the government of individuals involved in certain issues.
·     The applicant had support from family, friends, and the church, however they are not qualified to counsel the applicant.
·     The applicant is unable to move to another part of Fiji as she requires the support of her parents and she will continue to face trauma and psychological depression.
·     Government policies are causing depression in the youth and the applicant’s life is under threat.
·     The applicant fears the uncertainty and instability that may result from the election outcome, which may be unfavourable to the current government. In Australia, the applicant is able to openly express herself and criticise the issues in Fiji.
In the submitted 866C, her application indicated that her Christian by religion and indigenous Fijian by ethnicity; and that she has never been married or been in a de facto relationship. The applicant’s family composition was detailed as her father being deceased, while [specified family members] reside in Fiji. Her educational attainment indicates the applicant reached the equivalent to [grade] in the Australian system, while employment included working in Fiji’s [specified] sector between 2008 and 208.
On 24 July 2019, the applicant was invited to provide additional information. At the time of the Department’s decision, no additional information has been received.
A delegate acting on behalf of the applciant refused to grant the applciant a protection visa on 5 November 2019.
On 17 November 2019, the applicant validly applied to have the refusal decision not to grant the visa reviewed by the Tribunal with the delegate’s decision record attached.
As mentioned above, on 13 October 2022, the applicant appeared before the Tribunal to provide evidence and present arguments that she is owed Australia’s protection obligations.
In attendance at the hearing was as an observer, [named]. The applicant she was in a spousal relationship and that they were expecting to have a child in early 2023. The observer did not provide evidence as a witness.
At the end of the hearing, no post hearing submissions were required.
ASSESSMENT OF CLAIMS AND FINDING
Country of reference
The applicant claims that she is a citizen of Fiji and that she holds no citizenship of another country. The applicant does not claim to hold a right to enter and reside in a third country. There is no evidence that the applicant is not a citizen of Fiji, that she holds citizenship of another country, or that she holds a right to enter and reside in a third country.
Findings
Therefore, for the protection visa application assessment, the country of reference is Fiji.
Notwithstanding a number of additional claims raised in the scheduled hearing, the applicant’s written claims for were consistent with her oral evidence. The Tribunal finds the applicant to have been a credible and reliable witness of truth.
The Tribunal accordingly accepts the following personal aspects of the applicant to be credible:
·     The applicant was born in [year] in [Province 1], Fiji, as claimed;
·     The applicant is ethnically an indigenous Fijian and is Christian by faith tradition.
·     The applicant’s father is not deceased but was not known to the applciant, and that her mother who passed away in 2018, was a single mother, as claimed during the hearing;
·     The applicant was one of [specified family members], all living in Fiji;
·     The applciant has been the breadwinner for the family and had worked in Fiji’s [specified] sector for up to 7-9 years before coming to Australia, and has been sending remittances to her siblings in Fiji while working in Australia; and
·     The applciant was living in a de facto relationship with a fellow Fijian national, as claimed during the hearing. At the time of the hearing, the applicant was expecting her first child.
At the hearing, the Tribunal discussed the applicant’s visa and travel history. The applciant indicated that she had visited Australia three previous times before returning to Fiji. She said that in 2018, the applciant retuned to Fiji because her mother was dying. The applicant claimed that the life of her visa was coming to an end in mid 2018, and given, she could not afford a student visa, she had applied for a protection visa so as not to have to live a life of struggle as she had experienced in Fiji.
Political opinion claims
The Tribunal noted the applicant was unable to recall the specific political opinion claims during the hearing that had been outlined in some detail in her written claims. The applicant informed the Tribunal that a friend had assisted her in those claims. This has invited the Tribunal to consider that the written claims for protection had been substantially embellished to augment her otherwise genuine political opinions.
The Tribunal enquired whether the applicant had any difficulties with the police given her written political opinion claims, to which she had not. However, she did mention that the police had taken her to a station because of underage drinking when the applciant was around [age] years of age, and she had been admonished by the police for loitering with a rough crowd before being released. The Tribunal accepts this incident to have occurred, but it places no relevant weight on it as her being a person of interest for her political opinions
The Tribunal asked whether the applciant was a member of any political party or movement in Fijian, to which the applicant responded that she had not. When the Tribunal asked whether her freedom speech had been restricted, the applciant noted that online speech in Fiji is constrained and that members of the Opposition have been punished. She described the political environment as corrupt and that Fijians have no freedom of speech but admitted she had not contributed to any political opinions expressed through social media or online in general.
The Tribunal asked if the applciant has been a member of any political movement in Australia. Again, the applcaint responded that she had not and claimed that such groups were difficult to find. The Tribunal pointed out that they are, in fact, easily discoverable on the internet.
The Tribunal read out the following from the most recent DFAT report about online activities
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.
The Tribunal said this might indicate the applciant who is without anti-government opinions expressed online does not have a real chance of serious harm or a real risk of significant harm, if she returns to Fiji. The applicant did not respond.
The Tribunal then cited the following from the same source regarding the risks facing Fijians who dissent from the government:
DFAT understands that rank and file and low-profile opposition party members would be much less likely to experience interference. Those involved or perceived to be involved in opposition parties who facilitate DFAT Country Information Report FIJI May 2022 16 high-profile criticism (for example, journalists or social media users) may be questioned by police, but DFAT understands that this is not a widespread problem affecting low-profile party members.
Politics and parliamentary tactics can be energetic and robust. Opposition political parties and figures are public with their views, and efforts to discipline them are in accordance with the law. DFAT assesses that opposition political parties and their members experience a low risk of official violence but notes that discrimination in the form of questioning or restriction on activities is possible.
The applicant did not comment to this information with any comment.
The Tribunal enquired if she had difficulties with corruption. The applicant claimed that she had saved around 8000 Fijian dollars which could have assisted her with educational purposes. The applciant explained that when she was unemployed in the past, she was not allowed to access it. Like Australia, Fiji has a government-mandated contribution pension scheme. It is managed by the Fiji National Provident Fund scheme whereby local employers and/or employees are required to contribute.[1] Under the current scheme, FNPF members are allowed to withdraw part of their pension savings before retirement with the evidence of qualified life events. The qualified events include education, medical, unemployment, funeral, migration, and housing purchase.[2] According to the FNPF website, members can partially withdraw funds from their account with provident fund provided they have sufficient funds. The Tribunal acknowledges there are rumours that the government force workers to use the FNPG because the government corruptly mismanages the scheme.[3] However, according to the FNPF’s recent annual reports, the investment portfolio of the providential fund grew from 7.8 billion dollars in 2020 to close to 8.7 billion Fijian dollars in 2022.[4]
[1] Making the Fiji National Provident Fund Work for Worker, ITF Briefing Paper, August 2022, IMPT Working Paper - Self-insurance Against Natural Disasters: The Use of Pensions Funds in Pacific Island Countries, by Sui Guo and Futoshi Narita, WP/18/155, April 2018.
[3] Stop the Rorting at USP!, Truth for Fiji, June 2020, The FNPF annual reports for 2021 and 2022,.>
The Tribunal also notes that the most recent DFAT report states that corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
This country information in not supportive of the applicant’s arguments she was corruptly prevented from accessing her retirement savings under the early access conditions and the Tribunal does not accept she was corruptly impacted upon, as claimed.
The Tribunal further notes that should the applicant return to Fiji in the near future, she will be returning to a country whereby the previous government led by Josaia Voreqe (Frank) Bainimarama was defeated in a general election on 14 December 2022.
After the votes were counted in the general election, Fijians endued a few tense days that saw attempted to open old wounds as well as rising fears that a peaceful transition of power would be marred by fraud or military intervention. No one party a clear majority in the 55-seat parliament. However, a coalition of three pare the applicant - the People’s Alliance Party (PA), the National Federation Party (NFP), and the Social Democratic Liberal Party (SODELPA)—formed a government, with 29 seats. On December 24 2022, as constitutionally required, members of parliament (MPs) held a secret ballot to select Fiji’s new prime minister. Sitiveni Rabuka received 28 votes and won by a margin of one vote,
Rabuka’s new government has reportedly wasted no time in reversing numerous vestiges of Bainimarama’s long tenure. This includes the release of withheld funding for the University of the South Pacific, which is critical to not only Fiji but the wider Pacific, as well as permitting the return of the institution’s exiled vice chancellor. Monetary payments were also announced for 200,000 low-income Fijian families to assist with schooling costs, as well as an infusion of funds for Fiji’s beleaguered school system. MPs were given another pay cut, bringing their earnings down 30 percent from pre-pandemic levels. Rabuka’s government has also signalled its intent to roll back media restrictions that were one of the most egregious features of the Bainimarama era. Alongside these popular measures, Rabuka’s government has exercised its prerogative to overturn appointments made by the previous government to diplomatic missions, government agencies, and institutions.[5]
[5] A new era in Fijian politics by Patria O’Brien, Centre for Strategic & International Studies, 7 February 2023. type="1">
These recent liberalisation reforms led by members of the former Opposition whom the applicant claimed to support further indicates to the Tribunal that she will not be a person of interest to the authorities on return and that she will be able to express her political opinions without official interference. In short, the new political environment in Fiji further reduces the chances of serious harm or the risk of significant harm to the applicant based on her political opinion, imputed or otherwise, or any associations with the former opposition.
The Tribunal accepts the applicant held genuine political opinions which were in opposition to the long-standing Bainimarama led government and that the former government’s restrictions on open political debates and dissent chilled the applicant’s confidence to express her views against corruption without self-censoring herself.
However, the applicant was not a person of interest to the authorities in the past and is of no adverse interest to the newly elected government. Furthermore, the Tribunal does not accept that these was victim of corruption, as claimed, or that she could openly raise the issue of corruption on her return to Fiji under a more liberal political environment.
Having considered all the applicant’s claims about being a person of interest to the authorities based on her actual and imputed political opinion, the Tribunal finds the applicant does not face a real chance of serious harm arising from her political membership or opinion, imputed or otherwise, or for any related nexus reasons mentioned in section 5J(1)(a).
Based on the same considerations about the applicant’s political opinions, the Tribunal finds there are no substantial reasons for it to believe that the applicant will face a real risk of significant harm as a politically active, interested or motivated individual as a necessary and foreseeable consequence of her removal from Australia for Fiji.
In this regard, the applicant does not satisfy s.36(2)(a) or s 36(2(aa).
Economic claims
The Tribunal asked whether there are any other reasons the applicant would face a real chance of serious harm or a real risk of significant harm by returning to Fiji. The applcaint claimed that her and her child will face poverty and there was a difference between the lifestyles between Australia and Fiji and that she would have to work hard in Fiji. She also mentioned that she was the only breadwinner of her family and the only one earing an income and that she and her family were from a poor background, and she wanted ‘to be strong’.
The Tribunal accepts the applicant genuinely worries that the opportunities for her in Fiji are limited compared to those in Australia and that has a personally held fear of disadvantage in returning to Fiji, as well as general lifestyle preference to remain in Australia.
However, the country information indicates that the applicant does not face a real chance or a real risk of severe economic hardship by returning to Fiji. According to the most recent DFAT report from 20 May 2022, the World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’. About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
The Tribunal notes the applicant did not advance reasons to do with her race, religion, nationality, membership of a particular social group or her political opinion that she would be denied any access to basic rights or denied of her capacity to earn a livelihood of any kind, where the denial threatens her personal capacity to subsist or that she would face significant economic hardship that threatens her capacity to subsist or any other serious harm as non-exhaustively listed under s 5J(5) or as required under s 5J(4)(b).
Neither is it supported by the country information that the applicant will face significant economic hardship or any other serious harm because of her ethnicity as an Indigenous Fijian. The most recent DFAT report states that iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against Indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.
Furthermore, she admitted in the hearing that she does not any disabilities, either physically or psychologically. She has worked in Fiji and Australia on a more or less continuous basis as an adult. In Fiji she has worked in the [specified] sector for many years. She is a highly motivated person with capacity to earn money in the Fijian economy, but she is somewhat - but not significantly, hindered by her lack of educational attainment. The Tribunal accepts that she has a number of close relatives in Fiji have been somewhat or partially reliant on her income. However, she has no legal or moral obligations to assist them, especially when they have the capacity to earn income themselves and a family of her own. The Tribunal also notes that the Fijian Government provides for a Poverty Benefit Scheme, a Rural Pregnant Mothers Food Voucher Program and a Care and Protection Allowance which are social protection schemes aimed at vulnerable children, mothers and Fijian families through providing cash allowances and food vouchers.[6] Should the applicant return to Fiji with her child, this will assist her in those challenges in resettlement. While the applicant will face challenges in returning to Fiji and finding work or the support she needs as a mother, the Tribunal does not accept the applicant faces a real chance of serious harm for any of the reasons mentioned in s 5J(1)(a), should she return to Fiji.
[6] Care and protection allowance program assists more than 9,000 fmailies, Fiji Governemnt, media release, 18 January 2022,>
The Tribunal has considered if there are any substantial reasons to believe the applicant will face a real risk of significant harm arising from the applicant’s overall economic circumstances, as contemplated by s 36(2)(aa). Significant harm is different from the concept of serious harm as required by s 91R(1)(b)/s 5J(4)(b) in the context of s 36(2)(a). The Tribunal has already made a finding that the applicant has the capacity and inclination to find remunerative employment anywhere in Fiji and that she does not face a real chance of serious harm based on these specific claims.
While the Tribunal acknowledges the applicant will face a real risk of difficulties and challenges arising from finding work and meeting the costs of living, if removed from Australia, it does not accept, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s 36(2A). Furthermore, the Tribunal finds there is no intention on the part of the governance of the Fijian economy or Indigenous-owned lands in combination with market forces, to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference. The Tribunal, accordingly, does not have substantial reasons for believing she faces a real risk of significant harm, as a necessary and foreseeable consequence of being removed from Australia to Fiji, including being subjected to cruel or inhuman treatment or punishment or being subjected to degrading treatment or punishment, based on the applicant’s economic circumstances.
In this regard, the applicant does not satisfy either ss 36(2)(a) or 36(2)(aa).
Mental health claims
The Tribunal notes the applicant raised mental health issues in her statement, which she admitted her friend had largely written on her behalf. Her written claims about her mental health included trauma, aggressive behaviour, suicidal ideation and feelings of isolation. The Tribunal enquired with the applicant had any physical disabilities or mental health conditions or been treated for anxiety, to which the applicant response no to each of the enquiries. The Tribunal enquired whether the applicant had any incidents with the Fijian military, to which she responded ‘no’.
The applicant’s written claims about behaviour problems and mental health conditions were clearly and substantially embellished by the applicant to augment her claims for protection. The Tribunal holds no weight on these written claims. Instead, it accepts the applicant’s oral evidence that she has not disabilities or mental health conditions.
While the Tribunal accepts the applicant will face a real chance or a real risk of encountering stress in returning to Fiji, it does not accept she has a real chance of serious for one of the five reasons mentioned under s 5J(1)(a) arising from severe or significant mental health conditions, should she return to Fiji.
Neither does the Tribunal has any substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk of significant harm arising from mental health conditions or behavioural difficulties as claimed in the applicant’s written claims or arsing from her accepted and foreseeable encounters with stress in returning to Fiji.
In this regard, the applicant does not satisfy s.36(2)(a) or s 36(2(aa).
Residual claim: being separated from family
The Tribunal discerned that the applicant has a residual claim for protection, namely being separated from husband, with whom she is expecting a child, should she be returned to her country of nationality and reference.
The Refugees Convention – and by extension, the operation of s.36(2)(a) – is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality.
The Tribunal is not satisfied that the applicant’s overall set of circumstances amounts to holding a well-founded fear of persecution for any nexus reason mentioned under s 5J(1)(a). This including not being satisfied that the applicant having any membership of a particular social group as either a parent or spouse or de facto partners in a spousal relationship. There is no systematic and discriminatory conduct towards the applicant on behalf of the State or other actors in this regard. For this reason, the Tribunal finds that the applicant does not have a well-founded fear of persecution on the basis of being separated or estranged from loved ones residing in Australia, if they return to their country of nationality, as this basis does not amount to being one of the five nexus reasons outlined in the Refugees Convention or, more relevantly, under section 5J(1)(a) of the Act.
In this regard, the applicant does not satisfy s.36(2)(a).
With regards to the Act’s complementary protection provisions, the Tribunal has considered SZRSN v MIAC [2013] FCA 751 in which the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A). The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought. Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.
Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.
Lastly, the Court in SZRSN v MIBP had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, two adult children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of any applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.
For the reasons given, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for the purpose of the complementary protection criterion as a result of being separated from family members foreseeably residing in Australia, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji.
Cumulative findings
There are no more residual claims to consider in this application for review.
Based on the applicant’s accepted circumstances and having assessed all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that she does not face a real chance of serious harm, now and in the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the Convention nexus reasons, if they are returned to the Republic of Fiji, and they do not satisfy the criterion in s.36(2)(a).
Having assessed all of the applicant’s claims, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk of significant harm, including she will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, pursuant to s.36(2)(aa) of the Act.
Conclusion
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
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.
…

[2023] AATA 1347

2 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice