2007462 (Refugee)
[2024] ARTA 524
•29 October 2024
2007462 (REFUGEE) [2024] ARTA 524 (29 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2007462
Tribunal:General Member J Ermert
Date:29 October 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 29 October 2024 at 2:52pm
CATCHWORDS
REFUGEE – protection visa – Fiji – divorced woman – single mother – emotional abuse – fear of attack by ex-husband – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2020 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 national of Fiji, applied for the visa on 17 June 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 25 October 2024 to give evidence and present arguments.
On 14 October 2024, the Administrative Appeals Tribunal (‘AAT”) became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant is [age] year old iTaukei Fijian woman of the Methodist faith who was born in Suva, Fiji. Prior to coming to Australia, the applicant had worked for over 30 years as [an occupation 1] in Fiji before retiring from the role in 2015.
The applicant is divorced. She has [number] children [number] of whom are in Fiji, [detail deleted], and another one who is in Australia. The applicant has weekly contact with all her children. She has other relatives in Fiji but has only ad hoc contact with them.
The applicant last arrived in Australia [in] February 2019 on a Class FA Subclass 600 Visitor visa, and she has not departed Australia since. Prior to that, the applicant had visited Australia twice, once in late 2011 until early 2012 for a conference, and once in 2017 for a holiday with [family].
Evidence before the Department
The claims included in the applicant’s protection visa application can be summarised as follows. Her ex-husband [left] her and her children for another woman. Although she did not experience any physical violence from her ex-husband, she endured mockery and emotional abuse from her ex-husband and his family which lasted for many years before and after the divorce and which drained her emotionally and physically.
On her last visit to Australia in 2017, a friend advised her that Australia is a good country that can offer protection for women at risk. That is why she returned to Australia 2 years later seeking protection. Being in Australia makes her happy, and she fears returning to Fiji where she would again be mistreated by her ex-husband and his family, and where she would receive no protection from authorities or family members who never once supported her with the issues she experienced. Relocation would not assist as Fiji is a small country.
In support of her protection visa application, the applicant has provided to the Department various documents including, relevantly, a copy of a Fijian certificate of marriage, which has been annotated by the Suva Magistrates’ Court as being superseded due to divorce dated [in] May 1999, and a letter from the applicant’s children dated 11 May 2019 supporting her application for a protection visa on account of their mother being emotionally and mentally abused by their neglectful father over many years in the past.
The delegate refused the applicant’s protection visa application without inviting the applicant to an interview. In summary, although the delegated accepted on face value that the applicant has in the past in Fiji suffered incidents of emotional and verbal abuse, there are protective legislative framework and support services available for women experiencing family violence in Fiji that the applicant could avail herself of, such that there is not a real chance or real risk that the applicant would suffer serious or significant harm in the reasonably foreseeable future if she returned to Fiji.
Evidence before the Tribunal
Pre-hearing submissions
Before the hearing, the applicant submitted the following documents in support of her review application:
· A statement from the applicant outlining the training she has undertaken in Australia to obtain [occupation 3] qualifications and the places she has been working with to apply her training and passion for [occupation 3], and her hope for the opportunity to remain in Australia to contribute to [occupation 3] particularly in remote communities.
· Evidence of completion of [occupation 3 qualifications] and completion of Mental Health First Aid certificate.
· Various other supporting documents, including but not limited to reference letters from her current and previous [occupation 3] employers and [Church 1], rental receipt, etc.
Evidence at hearing
At the hearing, the Tribunal asked the applicant why she applied for a protection visa. The applicant claimed that she wanted to extend her stay in Australia after arriving on a visitor visa because she wanted to learn more about Australia, and she was advised by the friend who helped her complete the visa application to do so, opining that protection visa was probably the only visa option the friend knew.
However, the applicant also spoke candidly and emotionally about her past experiences in Fiji, particularly in relation to her separation and divorce from her ex-husband (which he initiated) and her subsequent struggles as a single mother. For years and years, she was made by her ex-husband and others around her to feel that her failed marriage and single motherhood were entirely her fault, even though it was her ex-husband’s infidelity, abandonment and neglect that caused the marriage breakdown. Despite a court order after their divorce that she and her ex-husband were to alternate on an annual basis in looking after their children, her ex-husband only did it for one year before leaving her to raise the children entirely on her own forever after, and he did not financially support her at all until she mustered up the courage 6 years after the divorce and took her ex-husband to court to demand payment of child maintenance. Despite the emotional trauma inflicted upon her as a result of the breakdown of her marriage, the applicant confirmed that she did not experience physical violence or other serious harm from her ex-husband or others in Fiji.
The Tribunal asked why she fears returning to Fiji and what she believes would happen if she returned. The applicant claimed it is not so much persecution she fears. Rather she fears being re-traumatised by returning to Fiji where she feels she would not be understood or accepted, and that she would again face malicious gossips and judgement from the community about her marriage breakdown and divorce and how it was her fault all along. The applicant claimed that learning about and working in [occupation 3 industry] in Australia and connecting it to her spirituality has given her strength and made her feel emotionally healed and fulfilled, and she fears that returning to Fiji would leave her spiritually empty and without purpose in life.
The Tribunal put it to the applicant that although it understood the emotional and mental toll her past experiences had taken on her, and although it acknowledged and appreciated her desire to leave her past behind her and not to be re-confronted with it, her evidence suggested that she may not meet the definition of refugee or the complementary protection criterion. In response, the applicant stated that she believes the harm she fears might have a nexus to religious persecution. The Tribunal asked the applicant to explain in what way she believes the harm she fears is religiously-based. The applicant responded to the effect that religion is equated with one’s spirituality, and she fears that the judgement from others would harm her spirituality.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because she is either a refugee or a person who satisfies the complementary protection obligations.
For the reasons discussed below, the Tribunal has concluded that the decision under review should be affirmed.
Assessment of refugee status
As outlined earlier in this Statement of Reasons, to be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Fiji, and owing to that fear, is unable or unwilling to avail herself of the protection of Fiji. This requires the Tribunal to be satisfied that there is a real chance the applicant would suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.
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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal has considered the applicant’s claims and evidence. The Tribunal accepts the applicant was verbally taunted and emotionally abused by her ex-husband. The Tribunal accepts as plausible that in a traditionally patriarchal and male-dominated society like Fiji, even though the applicant was forced to separate from her ex-husband because of his infidelity and because he effectively abandoned her and their children by moving to his family with his new partner and subsequently initiating the divorce, it was she who was made to feel at fault over the marriage breakdown and it was she who bore the brunt of community judgement and malicious gossips.[1]
[1] See, for example, the following article on gender inequality in Fiji and how traditions and customs are strongly linked to gender-inequitable beliefs, and how sociocultural factors impose on women experiencing self-effacing emotions and passive acceptance of lower status and contribute to the persistence of gender inequality; Candauada A Saliya, Exploring gender inequality and sociocultural factors in Fiji: unveiling the “pink unicorns”, International Journal of Sociology and Social Policy, January 2024.
Moreover, the Tribunal accepts that the years of having to raise her children as a single mother without support or assistance and having to forcibly extract child maintenance from her ex-husband through the court system, all the while enduring the negative comments from her ex-husband, his family and the community generally, deeply hurt the applicant emotionally and mentally.
However, as understandable as the applicant’s desire to move on with her life and not return to Fiji where she has had painful memories and experiences is, the Tribunal finds there is not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future because of her marriage breakdown and divorce from her ex-husband if she returned to Fiji. The divorce happened 25 years ago. Her children have since all grown up. The Tribunal expects that any real chance of disdain or mockery from her ex-husband or his family, and any real chance of judgemental comments or gossip from the community, would have diminished over that time.
In any event, to the extent that there is a remote possibility that the subject matter of her separation and divorce might still be dredged up, the Tribunal accepts that it would be upsetting and triggering for the applicant, but the Tribunal does not consider that it is serious harm amounting to persecution.
The Tribunal has also had regard to the applicant’s statement at the hearing to the effect that the judgement of other people would harm her spirituality and thus cause her religious harm. The Tribunal does not cavil with this view which the applicant is entitled to hold. However, this is the effect of the judgement that the applicant fears, which should not be confused with, and is distinguishable from, judgement directed to the applicant because of religion. Even if it is arguable that there is a religious basis to the community’s judgement towards the applicant in relation to her perceived failings arising from the marriage breakdown, nothing turns on this given the Tribunal’s finding that there is not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future.
As the Tribunal has found there is not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future from her ex-husband, his family or members of the Fijian community on account of her marriage breakdown and divorce from 25 years ago and subsequent single motherhood, it follows that the applicant does not have a well-founded fear of persecution in Fiji qualifying her for the definition of ‘refugee’. Therefore, the applicant does not meet s 36(2)(a) of the Act.
For completeness, the Tribunal accepts on the applicant’s evidence and on the basis of the reference letters from her employers in Australia (past and present) and her church that she has actively involved herself in [occupation 3] and provided spiritual guidance to young people, and that her work is much valued and appreciated. The Tribunal accepts that the applicant has derived enormous satisfaction and spiritual fulfilment from her work. Whilst these factors help to paint a picture of why the applicant does not wish to return to Fiji, they are not relevant considerations for the purpose of determining whether the applicant has a real chance of being seriously harmed in the reasonably foreseeable future for one of the enumerated reasons, such that she could be said to have a well-founded fear of persecution in Fiji.
Complementary protection assessment
Having found the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether in the alternative, the applicant is able to meet the complementary protection criterion in s 36(2)(aa) because there are substantial grounds for the Tribunal to believe that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
Given the Tribunal’s finding that there is not a real chance the applicant would suffer serious harm in Fiji in the reasonably foreseeable future because of her marriage breakdown and divorce from 25 years ago and subsequent single motherhood, it must follow that the applicant does not have a real risk of significant harm as a necessary and foreseeable consequence of her removal from Australia to Fiji. Therefore, the Tribunal also finds that the applicant does not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.
Other criteria – member of the same family unit
Finally, as the applicant has not claimed to be a member of the same family unit as another person in respect of whom Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, and given there is no evidence before the Tribunal to suggest the contrary, the Tribunal also finds that the applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 25 October 2024
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.
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