1932654 (Refugee) - [2023] AATA 1347

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…

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 1932654 (Refugee)

Details

AGLC: 1932654 (Refugee) [2023] AATA 1347
Case: [2023] AATA 1347
Decision Date: 2 March 2023

CaseChat Overview and Summary

The applicant, a Fijian national, sought a protection visa in Australia, claiming fear of harm upon return to Fiji due to government policies, restrictions on freedom of expression, and the lack of recognition of Indigenous people's rights. The applicant also asserted that her mental health issues, including depression and suicidal ideation, would resurface if she were returned to Fiji, where she felt unsafe and unable to voice her opinions without fear of reprisal from the military and police. The applicant further contended that there were no adequate support services available in Fiji to address her trauma.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether she had established a well-founded fear of persecution based on a Convention ground, or alternatively, whether she met the criteria for complementary protection. This involved assessing the applicant's claims of discrimination, suppression of basic human rights, and the risk of significant harm as a foreseeable consequence of removal from Australia. The Tribunal also had to consider the relevance of country information and guidelines prepared by government departments in its assessment.

The Tribunal affirmed the decision under review, concluding that the applicant had not established a well-founded fear of persecution on a Convention ground. While acknowledging the applicant's stated concerns regarding government policies, freedom of expression, and the rights of Indigenous people in Fiji, the Tribunal found that these did not, in themselves, constitute a real chance of significant harm or persecution as contemplated by the Act. The Tribunal also considered the applicant's mental health claims and the availability of support services in Fiji, but ultimately determined that the evidence did not support a finding that she would suffer significant harm upon return.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.