Background
Background to the litigation
Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Fiji and as such her protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.Background The applicant was born in [District 1], Fiji on [date] and has [number of children], two of whom were customarily adopted by her [relatives]. She has travelled to Australia previously on a [visitor] visa, first arriving [in] February 2017, then [in] April 2017 and finally [in] May 2019 after which she made her protection visa application.Applicant’s claims and evidence The applicant had filed a protection visa application on 9 August 2019 detailing claims of fear of harm from the Fiji military because of political opinion. That application was refused on the basis that the delegate was not satisfied the applicant had a political profile which would attract the adverse attention of the authorities. Prior to the Tribunal’s hearing, the applicant provided a detailed statement outlining her claims which involved a fear of return to Fiji because of the several years of domestic violence she had experienced at the hands of her husband. She attached supporting information to the statement. Given the apparently new claims, at the hearing, the Tribunal raised the issue of s 423A which relevantly provides that if an applicant raises a claim on review that was not made before the primary decision, the Tribunal must draw an inference unfavourable to the credibility of that claim. The applicant’s representative noted that the applicant had submitted a protection visa claim on 14 June 2019 involving her domestic violence claims. She later provided the relevant documentation. As it became clear, this visa application was deemed invalid by the Department because the applicant had failed to provide personal identifiers, having changed her address and not received the relevant Departmental communication. On 5 August 2019 the applicant had queried the progress of her application with the Department and on 7 August 2019 she was advised that her application was considered invalid, so on 9 August 2019 the applicant submitted the second visa application, which was refused by the delegate, as noted above. This is the application before the Tribunal. Arguably, s 423A does not apply to the applicant’s domestic violence claims because she did raise them with the Department before the primary decision was made, albeit in an invalid application. Alternatively, the Tribunal accepts as reasonable the applicant’s explanation that she has little understanding of English, is not computer literate and did not have a full understanding of the content of this second application which was hurriedly prepared for her by another person. In the circumstances, in respect of the applicant’s domestic violence claims, the Tribunal does not draw any adverse inferences.Initial protection visa claims In her originally-lodged protection visa application[1] the applicant claimed she left Fiji because her husband, from whom she had been separated for over 10 years, was physically violent towards her and she feared for her life. Although he has a new relationship, she said he lived close to her and she was in constant fear for her safety. He had seen her with a male friend and had stabbed him. She had reported his behaviour to the police and he had been jailed twice and has broken orders made against him. She said police in Fiji are not equipped to protect her. She claimed they are corrupt and that her husband has connections both within the police force and the military. [1] See preceding paragraphs.
Evidence
Evidence Before The Court
She has travelled to Australia previously on a [visitor] visa, first arriving [in] February 2017, then [in] April 2017 and finally [in] May 2019 after which she made her protection visa application.Applicant’s claims and evidence The applicant had filed a protection visa application on 9 August 2019 detailing claims of fear of harm from the Fiji military because of political opinion. That application was refused on the basis that the delegate was not satisfied the applicant had a political profile which would attract the adverse attention of the authorities. Prior to the Tribunal’s hearing, the applicant provided a detailed statement outlining her claims which involved a fear of return to Fiji because of the several years of domestic violence she had experienced at the hands of her husband. She attached supporting information to the statement. Given the apparently new claims, at the hearing, the Tribunal raised the issue of s 423A which relevantly provides that if an applicant raises a claim on review that was not made before the primary decision, the Tribunal must draw an inference unfavourable to the credibility of that claim. The applicant’s representative noted that the applicant had submitted a protection visa claim on 14 June 2019 involving her domestic violence claims. She later provided the relevant documentation. As it became clear, this visa application was deemed invalid by the Department because the applicant had failed to provide personal identifiers, having changed her address and not received the relevant Departmental communication. On 5 August 2019 the applicant had queried the progress of her application with the Department and on 7 August 2019 she was advised that her application was considered invalid, so on 9 August 2019 the applicant submitted the second visa application, which was refused by the delegate, as noted above. This is the application before the Tribunal. Arguably, s 423A does not apply to the applicant’s domestic violence claims because she did raise them with the Department before the primary decision was made, albeit in an invalid application. Alternatively, the Tribunal accepts as reasonable the applicant’s explanation that she has little understanding of English, is not computer literate and did not have a full understanding of the content of this second application which was hurriedly prepared for her by another person. In the circumstances, in respect of the applicant’s domestic violence claims, the Tribunal does not draw any adverse inferences.Initial protection visa claims In her originally-lodged protection visa application[1] the applicant claimed she left Fiji because her husband, from whom she had been separated for over 10 years, was physically violent towards her and she feared for her life. Although he has a new relationship, she said he lived close to her and she was in constant fear for her safety. He had seen her with a male friend and had stabbed him. She had reported his behaviour to the police and he had been jailed twice and has broken orders made against him. She said police in Fiji are not equipped to protect her. She claimed they are corrupt and that her husband has connections both within the police force and the military. [1] See preceding paragraphs.
Decision
Reasons for decision
Accordingly, the Tribunal is satisfied that the applicant is a refugee within the meaning of s 5H(1)(a) and that she is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Mary-Ann CooperMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
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 The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The Tribunal has considered the written and oral evidence and submissions provided as well as independent country information. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of nationality Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. The complementary protection provisions, at s 36(2)(aa), refer to a person being removed to a ‘receiving country’, which is defined at s 5(1) as a country of which the applicant is a national, to be determined solely by reference to the law of the country. The applicant travelled to Australia on a Fijian passport, a copy of which is contained on the Departmental file and was provided to the Tribunal. She has at all times claimed that she is a citizen of Fiji and she has been assessed on that basis by the Department. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Fiji and as such her protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.Background The applicant was born in [District 1], Fiji on [date] and has [number of children], two of whom were customarily adopted by her [relatives]. She has travelled to Australia previously on a [visitor] visa, first arriving [in] February 2017, then [in] April 2017 and finally [in] May 2019 after which she made her protection visa application.Applicant’s claims and evidence