2006964 (Refugee) - [2024] AATA 1811

2006964 (Refugee) [2024] AATA 1811 (18 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006964
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Victoria Price
DATE:18 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 36(2)(aa) of the Migration Act.

Statement made on 18 March 2024 at 4:02pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political and economic situation – member of trade union – financially supporting family by working in Australia – previously violent husband now chronically unwell and unable to harm – claims on political and union grounds discontinued – new claim of fear of harm from neighbour raised in response to tribunal’s questions – longstanding dispute, verbal and physical abuse – application completed by friend and no interview with department – reasonable explanation and no adverse inference drawn – direct and detailed evidence – complementary protection – financial hardship and harm from neighbour not for refugee reasons – real chance of violence intentionally inflicted by neighbour – inconsistent police response and neighbour has son in police force – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(1)(a), (4)(c), 36(2)(a), (aa), (2A)(e), (2B)(b), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
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

The applicant is a woman, [Age] years of age, a citizen of Fiji and follows the Christian faith.
The applicant arrived in Australia [in] March 2019 on a tourist visa. On 19 July 2019 she lodged an application for a protection visa with the Department of Home Affairs (the Department).
On 9 April 2020 the delegate of the Minister refused to grant the visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act), finding she did not satisfy the requirements of s.36(2) of the Act. This is an application for review of that decision.
CLAIMS AND EVIDENCE
The Tribunal has before it: the Department file, including the visa application; and the material the applicant gave the Tribunal which included a copy of the delegate’s decision record and supporting material.
The applicant made the following claims in her protection visa application:
·There is poverty in Fiji, and she sees people urging their children to study hard. This is what she did with her family.
·She left the country due to their economic and political situation. As a single woman, moving to Australia would give her a better life.
·The applicant stated that it may be that nothing would happen to her on return to Fiji, but she would not be happy as her family have moved…

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 2006964 (Refugee)

Details

AGLC: 2006964 (Refugee) [2024] AATA 1811
Case: [2024] AATA 1811
Decision Date: 18 March 2024

CaseChat Overview and Summary

This matter concerns an application for review of a decision by the Minister to refuse to grant a protection visa to the applicant, a national of Fiji. The applicant claimed she feared harm upon return to Fiji due to the country's political and economic situation, her former trade union membership, and threats from a neighbour. The Tribunal considered the applicant's evidence, including her financial support of her family in Fiji and her husband's chronic illness.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth). Specifically, the court was required to determine if Australia had protection obligations towards the applicant under the "refugee" criterion, as defined by section 5H(1)(a) of the Act, or under the "complementary protection" criterion, as defined by section 36(2)(aa) of the Act. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or whether there was a real risk of significant harm upon removal from Australia.

The court found that the applicant did not meet the definition of a refugee, as there was no well-founded fear of persecution for any of the specified reasons. While acknowledging the applicant's financial hardship and the poverty faced by her family in Fiji, the court determined that these circumstances did not amount to "significant harm" as defined by the Act. The court also noted that claims related to political and union grounds had been discontinued, and the applicant's husband was no longer capable of causing her harm. However, a new claim regarding fear of harm from a neighbour, stemming from a longstanding dispute involving verbal and physical abuse, was raised. The court found that there was a real chance of intentionally inflicted violence from this neighbour, exacerbated by an inconsistent police response and the neighbour's son being in the police force.

Consequently, the court remitted the decision for reconsideration, indicating that the applicant's claims regarding harm from her neighbour warranted further assessment under the complementary protection provisions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. At the hearing the applicant confirmed her identity and familial and biographical information. She also provided further details regarding her claims for protection. This evidence is discussed below.Applicant’s background The applicant grew up in a village with her parents, and [siblings]. Her father passed away from an illness and the applicant left school at form 4 (the equivalent of year 9 in Australia)[1] to help support her mother and siblings. Contrary to statements in the protection visa application, she has never worked in a [Workplace 2]. Rather, she undertook [Job tasks], in [Specified places].[1] School-year-equivalents-CAT-AMC.pdf (amt.edu.au). The applicant’s mother is in her [Decade] and continues to live in the village with two of the applicant’s [Siblings] and their respective families. Her [other siblings] are all married and remain in the village with their families. The applicant was married to her first husband when she was [Age] years of age. They had one son and separated about two or three years after their marriage. Her son was one year old when she married her second, and current, husband. They have two children together, a son who is now [Age] years old and a daughter who is [Age]. The applicant does not have contact with her son from her first marriage, he was informally adopted by another woman and resides with her. The applicant’s son is not married and does not have any children. Her daughter has one son, from her first marriage, [named], who is now [Age] and two children from her second marriage, one aged [Age] and one who is [Age] years old. The applicant’s husband, children and her grandchildren all reside together in the applicant’s home. Her daughter’s husband does not live with them. The applicant is currently employed as [a] worker at a [Workplace] in [City]. Her current accommodation is sparce, a one room rental in which the power is often turned off. She takes an uber to work and catches the bus home. She speaks, reads, and writes Fijian and English. Evidence relating to applicant’s protection claims. The applicant clarified matters made in the protection visa application, confirming that she is not a member of a Union in Fiji and has not has any problems for that reason. She has never been involved in politics and has never had any fights with her extended family or relatives. The applicant’s husband was [an Occupation] by trade. However, he has a disability and cannot work. He has been physically violent towards her in the past, but he is unable to hurt her now due to his illness, and he would not harm her on return to Fiji. The applicant is financially responsible for her family. She is paying for their rent in Fiji, for her son and daughter to undertake [courses], and the education for all her grandchildren. They are living in poverty and if she returns to Fiji she will be unable to find employment as the retirement age in Fiji is 55 and then her family could not survive. Her goal to earn enough money to buy some land and a small house, in Fiji, that is big enough for she and her family to live comfortably.

Evidence

Evidence Before The Court

On 9 April 2020 the delegate of the Minister refused to grant the visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act), finding she did not satisfy the requirements of s.36(2) of the Act. This is an application for review of that decision. CLAIMS AND EVIDENCE The Tribunal has before it: the Department file, including the visa application; and the material the applicant gave the Tribunal which included a copy of the delegate’s decision record and supporting material. The applicant made the following claims in her protection visa application: ·There is poverty in Fiji, and she sees people urging their children to study hard. This is what she did with her family. ·She left the country due to their economic and political situation. As a single woman, moving to Australia would give her a better life. ·The applicant stated that it may be that nothing would happen to her on return to Fiji, but she would not be happy as her family have moved to other places. ·She is tired of the culture where relative interfered in her life and they ended up fighting. The authorities cannot protect her because the workers and trade unionists have been routinely targeted, harassed and physically assaulted and she cannot relocate within Fiji. In a statement to the Tribunal dated 24 January 2024, the applicant stated the following: applicant provided the following evidence to the Tribunal: ·Her husband has a chronic illness and has been in and out of work for the duration of their relationship. He has been unable to work at all in the last two years. He was not eligible for a disability pension and the applicant had to financially support them both. ·Their [Relative] resides with the applicant and her husband, and they are responsible for his care and education. ·She can work here in Australia and financially support her family. The applicant provided the following supporting material: ·A copy of the applicant’s birth certificate, and certificate of marriage.·Numerous receipts for the applicant’s financial transactions here in Australia, including western union transfers to her family in Fiji, Australia Post services, and for expenses here in Australia (chemists, supermarket, and other needs).·A letter from the payroll manager at her current employer, stating the applicant has been employed full time as [a] worker at their [Workplace 1] since August 2022.·Photographs of the applicant’s family members in Fiji, including her daughter, her son, her husband, and her son, and photographs of their residence in Fiji.·An ex-ray examination request dated 17 February 2017 for the applicant’s husband. ·Reminder notices for payment of rent on the applicant’s residence dated 10 March 2022 and 7 November 2023, and a receipt for payment of the rent dated 17 December 2023. ·Receipt for payment of a [Course] for the applicant’s son dated, January 2024, and a certificate confirming he completed a National Certificate in [Subject] at [Institution] on 19 January 2024.

Decision

Reasons for decision

For the reasons set out above, I find that the applicant does not meet the requirements of the definition of refugee in s.5H(1) of the Act. Refugee: 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).Complementary Protection Assessment Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative, complementary protection, criterion in s 36(2)(aa). 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 Court has confirmed that ‘real chance’ and ‘real risk’ involve the same standard.[17][17] MIAC v SZQRB (2013) 210 FCR 505. 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. Relevantly, a person will suffer ‘significant harm’ if: ·the person will be arbitrarily deprived of his or her life ·the death penalty will be carried out on the person ·the person will be subjected to torture ·the person will be subjected to cruel or inhuman treatment or punishment, or ·the person will be subjected to degrading treatment or punishment. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.Assessment of significant harm on return to Fiji The Tribunal found above that there is no real chance of harm arising to the applicant in Fiji for reasons relating to politics, union membership, or from her husband or extended family. As real chance and real risk involve the same standard, I similarity find that she does not face a real risk of harm within the meaning of s.36(2)(aa) for these reasons on return to Fiji. I have found that the applicant can obtain employment on return to Fiji, but given the low wages and economic situation, I have accepted that the applicant and her family face poverty and significant economic hardship which threatens their capacity to subsist. However, having regard to the country information above, I find that these matters do not rise to the level of significant harm as defined in the Act: it does not amount to an arbitrary deprivation of the applicant’s life; the death penalty; or torture. Nor am I satisfied that it arises from any conduct intended to cause extreme humiliation, or that it amounts to severe pain of suffering that is intentionally inflicted, or pain or suffering that is cruel or inhuman in nature.

Ratio Decidendi

Legal Principle Established

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.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case there is a real chance the applicant will be persecuted on return to Fiji or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to Fiji. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of reference, area of return and s.36(3) The applicant provided her birth certificate and a copy of her Fijian passport. I accept that the applicant is a national of Fiji. The applicant’s husband, children, and grandchildren, with whom she lived and remains in contact with, reside in [Town] on the [island] of Viti Levu. I find that this is the area to which the applicant would return in the future. There is no evidence before me to indicate that the applicant has a right to enter and reside in any other country apart from Fiji. I find that s.36(3) of the Act does not apply in this case. Refugee Assessment 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.Applicant’s overall credibility