2004434 (Refugee)

2004434 (Refugee) [2023] AATA 4207 (6 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2004434

COUNTRY OF REFERENCE: Fiji
MEMBER:Katherine Harvey
DATE:6 October 2023
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 October 2023 at 3:28pm

CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions – employment – marital status – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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 dependants.
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 12 February 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Fiji. The first named applicant (the applicant) is [an age]-year-old man and the second named applicant is [an age]-year-old woman. The applicants are married.
The applicants applied for the visas on 30 April 2019.
The delegate refused to grant the visas on 12 February 2020.
On 10 March 2020 they applied for a review of that decision. They provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.
The applicants appeared together before the Tribunal on 3 October 2023 to give evidence and present arguments. I exercised my discretion to hold the hearing by Microsoft Teams video. I determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay in the matter if the hearing was not to be conducted by video.
The applicants gave evidence about their background and claims for protection. I am satisfied that the applicants were given a fair opportunity for evidence to be given and arguments presented on their behalf.
The applicants were not represented in relation to the review.
For the following reasons, I have concluded that the decision under review should be affirmed.
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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Material before the Tribunal
The applicant provided several documents to support his application for a protection visa, including a certified:
·   copy of the biodata page of the applicant’s Fijian passport issued [in] 2018
·   copy of the biodata page of the second named applicant’s Fijian passport issued [in] 2007 and a passport extension to [2027]
·   copies of the applicant’s and second named applicant’s birth certificates
·   copy of the applicants’ certificate of marriage
·   copies of the birth certificates for the applicants’ children: [names and dates of birth]
·   copy of the applicant’s Fijian [Agency 1] report on the [qualifications] for [occupation 1] dated [in] November 2003
·   copy of the applicant’s [vocational training certificate] for [occupational] studies dated [in] November 2003
·   copy of the applicant’s [Agency 2] certificate of attainment for [course 1] held [between specified dates]
·   copy of the applicant’s [Agency 2] certificate of attainment for [course 2] held [between specified dates]
·   copy of the applicant’s [Agency 2] certificate of excellence [Award]
·   copy of the applicant’s [Agency 3] attendance certificate for Modules I & II in [Course 3] held [between specified dates]
·   copy of the applicant’s [Agency 2] certificate of participation for in-house induction training [date]
·   copy of the applicant’s [Agency 2] certificate of attainment for [Course 4] from [between specified dates]
·   copy of the applicant’s [Agency 2] certificate of acknowledgment for 2015 [deleted] Industry Training Centre Staff of the Year Award
·   copy of the applicant’s [Agency 2] certificate of attainment for [Course 5] from [date], and
·   copy of the applicant’s [Agency 2] certificate of participation for [Course 6] held [between specified dates].
CONSIDERATION
The issue in this case is whether any of the applicants meet the refugee criterion and, if not, whether any are entitled to complementary protection.
Background
The applicant is a Fijian citizen who is [age] years old. He was born in Suva, Fiji. His parents live in [Town 1], Fiji, his brother lives in Suva and his sister, the holder of a work visa, lives in Perth, Australia. His most recent qualification in Fiji is in [occupation 2] and he worked as a [specified role] for [Agency 2]. In Australia, he works full time [in specified occupations].
The second named applicant is a Fijian citizen who is [age] years old. She was born in Suva, Fiji. Her brother is an Australian citizen who lives in New Zealand and her [sisters] live in Suva. The applicants’ [children] live with her mother in the applicants’ home in Suva. The applicant completed an [occupation 3] course in Fiji in 2016 and worked in a [business 1] from 2017 to 2019, until she came to Australia. In Australia she works as [an occupation 3], having completed [an occupation 3 course]. She is currently studying a [different course].
Country of reference
The applicants claim that they were born in Suva, Fiji and are citizens of Fiji. They provided certified copies of the biodata pages from their Fijian passports.
I am satisfied that the applicants are citizens of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in the application for protection and an undated statement that was submitted with the application.
The applicant claims that he is his family’s sole breadwinner and his wages of $180 per week make it really hard to survive. He claims he resigned from his job as a [specified role] with [Agency 2] and it will be hard for him to find a job. He claims that he is an unestablished worker and for the last 14 years his hourly rate has not changed. He claimed that he built a small house in a squatter settlement as he is unable to pay for proper housing for his family. He claims he works in Suva, the capital of Fiji, which is the place you can find more jobs. He claims that he has nothing against the authorities in Fiji, and he sent the children to live with his mother-in-law in [a named village] while he and his wife came to seek shelter in Australia where jobs are plentiful with good rewards.
The second named applicant did not make any claims for protection.
Assessment of claims and evidence
At the hearing, the second named applicant said that to be honest she was given the wrong advice on applying for a protection visa. She said that after applying she got to read about the conditions but she could not do anything about it because she had already applied. She said when they were rejected, they were told they could apply to the Tribunal and she had hoped that the Tribunal hearing would happen in 2024. She said she could not do anything to change to another visa. She was hoping to get qualified and sponsored before the Tribunal hearing occurred.
The second named applicant said that they stayed in touch with their children by telephone and one of the things they did was to pray together as a family, and she asks her children to pray she gets sponsored. She said they are planning to bring their [children] to Australia, and to adopt and bring two of her sister’s [children] with them as her sister’s new husband does not get along with [these children].
The second named applicant said that they had spoken to a migration agent in Sydney.
Have the applicants experienced harm?
At the hearing both applicants advised, and I accept, that they have not experienced harm in Fiji.
Employment in Fiji
In the application, the applicant claimed that his wife had not worked in Fiji and he was the family’s sole breadwinner. At the hearing, she confirmed that she had worked at a [business 1] from 2017 to 2019 after completing an [occupation 3] course in 2016.
At the hearing, the applicant said that it would be hard for him to look for work and hard for him to start again and support his family if he returned to Fiji. He explained that the cost of living is going up and the return from working is low and he is concerned that work is not secure in Fiji.
We discussed that both applicants are of working age, that they have qualifications from Fiji and Australia and that they have worked in Fiji and Australia. The applicants agreed that they would be able to find work if they returned to Fiji. The second named applicant said that she knows they are qualified with Australian qualifications so she is sure they can get a job, but she does not know if they could then come back to Australia.
I asked who was living in their house in Suva and the second named applicant explained that her mother, their three children and two of her sister’s [children] live there. She advised that since they came to Australia, the settlement where they live has been subdivided and she provided their address. She confirmed and I accept that they would have somewhere to live if they returned to Fiji.
Based on the evidence before me, I find that the applicants would be able to live in their house in Suva and find employment. I find that if the applicants were to return to Fiji now or in the foreseeable future, their economic circumstances on their return would not threaten their capacity to subsist or otherwise amount to serious harm or significant harm.
Marital status
The applicant said that the applicants’ marriage had broken up and they had lived separately for three years in Fiji from 2016 until they came to Australia. He said he is worried that if they go back to Fiji they will be separated again. The applicant did not provide any other evidence to support this claim. The second named applicant did not provide any evidence to support this claim and instead spoke of the couple’s future plans to bring their children and her nieces out to Australia.
Based on the evidence before me, I find the applicant’s claim to be speculative. I accept that the future of any marriage is somewhat uncertain given that marriage involves two people whose interests may diverge however I do not accept that if the applicants returned to Fiji now or in the foreseeable future and their marriage broke down that the applicant or the second named applicant would experience serious harm or suffer significant harm a result of their marriage breakdown.
Do the applicants meet the refugee criterion?
Taking into account the findings set out above and having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicants returned to Fiji now or in the foreseeable future that the applicants face a real chance of persecution for reasons of being unemployed and needing to look for work, whether they remain together or separated.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[1]
[1] Chan Yee Kin v MIEA (1989) 169 CLR 379.
At the hearing, the applicants said they did not fear being harmed in Fiji. I find that the applicant and second named applicant do not have a subjective fear of persecution.
I considered whether there was a real chance of persecution if the applicants returned to Fiji now or in the foreseeable future. Based on the evidence before me, I find that there is no real chance that the applicants will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I find that the applicants do not have a well-founded fear of persecution because they do not have a subjective fear of persecution and there is no real chance that they will be persecuted. As the applicants do not have a well-founded fear of persecution, I find that they are not refugees within the meaning of s 5H of the Act.
Do the applicants meet the complementary protection criterion?
Having found that the applicants do not meet the refugee criterion, I considered whether on the evidence before me there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[2]
[2] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180].
Based on the evidence before me, considering the applicants’ claims individually and cumulatively, I find that there is no real chance that the applicants will experience serious harm and for the same reasons find that there is no real risk that the applicants will suffer significant harm on their return to Fiji now or in the foreseeable future.
Conclusion
For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Katherine Harvey
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.
…

[2023] AATA 4207

6 October 2023

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