2009526 (Refugee) - [2023] AATA 2563

2009526 (Refugee) [2023] AATA 2563 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009526
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:29 June 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 June 2023 at 3:16pm

CATCHWORDS
REFUGEE – protection Visa– Fiji – burglary report to the Fiji Police Force was ignored – subject to accentuated prejudice – a member of the Fiji Armed Forces – significant economic hardship – burglary was opportunistic – separation from his father’s grave does not constitute significant harm –no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65, 411, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Fiji and is [age] years old. He most recently arrived in Australia on [date] August 2019, travelling on a Fijian passport as the holder of a visitor visa.
On 18 October 2019, the applicant applied for a protection visa.
On 14 May 2020, a delegate of the Minister refused to grant the visa.
On 8 June 2020, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 31 March 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The applicant was scheduled to appear before the Tribunal on 24 April 2023. Due to circumstances beyond its control, the Tribunal rescheduled the hearing to a date that the applicant and his support people were available.
The applicant appeared before the Tribunal on 11 May 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The Tribunal 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 applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant…

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 2009526 (Refugee)

Details

AGLC: 2009526 (Refugee) [2023] AATA 2563
Case: [2023] AATA 2563
Decision Date: 29 June 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Fijian citizen. The applicant claimed to have experienced harm in Fiji, including psychological and financial hardship, and alleged that a burglary at his home was not adequately investigated by the Fiji Police Force. He also expressed concerns about potential prejudice against members of the Fiji Military Forces. The case was heard by Katherine Harvey.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for a refugee nexus reason, or if he was owed complementary protection. The Tribunal was required to assess the applicant's claims of harm, including the impact of the burglary, economic hardship, and societal attitudes towards military personnel in Fiji, in light of relevant country information and protection guidelines.

The Tribunal reasoned that the burglary, while distressing, appeared to be opportunistic and did not establish a well-founded fear of persecution. The financial hardship claimed was not considered to be of a severity that would engage protection obligations, and the separation from his father's grave was not deemed significant harm. The Tribunal concluded that the applicant had not demonstrated a well-founded fear of persecution or a claim for complementary protection. Consequently, the Tribunal affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. Background The applicant’s personal details were set out in his application for protection. He is[age] years old and was born in [Fiji]. At the time he made his application, he stated that he was married with [children]. He had studied a [degree] in Queensland and worked as an [occupation] in Fiji. He provided details of his wife and children in Fiji and his Australian-citizen sister, who was a support person at the hearing.Country of reference The applicant claims that he was born in [Fiji] and is a citizen of Fiji. He provided a copy of the biodata page from his Fijian passport. The Tribunal is satisfied that the applicant is a citizen 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. The applicant claimed that he left Fiji to visit his parents, especially after his father was diagnosed with [a medical condition]. He also wanted to discuss how to settle his father’s hospital bills, to look for work in Australia to pay the bills, and to look for opportunities for his family to live in Australia. He claimed that he had experienced harm in Fiji. He claimed he experienced psychological harm when his father was admitted to hospital as a private patient and the family was responsible for his hospital bills. He claimed he experienced financial harm with the weakening Fijian currency and sending money to Australia and when two offers to buy one of his properties fell through. He claimed in 2015, thieves broke into his house and stole $10,000 worth of contents and he was hurt to see his military belongings, including his medals, lying everywhere. He claimed he experienced self-neglect when, despite reporting the break-in to police, no police report was provided. He claimed that there is no freedom of the press or free speech in Fiji and they are worried about losing their job. He claimed the majority of people in Fiji hate the Fiji Military Forces and any military personnel, whether they took part in the military coup or not. He claimed that when he returned from a one-year military tour he began to feel hatred, feeling of ‘negligent’ at work and even at church. He claimed they became a target for people as proved by the burglary. He claimed he did not seek help as the harms involved the Fiji Government and there is a culture of silence as people fear what could happen if they make comments about the government. He claimed they reported the burglary the next day and followed up after a few weeks and saw the commanding officer, but nothing was done and they gave up. He claimed that it would make no sense moving to another part of Fiji as you would still be facing the same harms that are government related. He claimed that returning home will not assist settling his father’s hospital bill. He claimed that Fiji is experiencing a financial crisis with the price of basic food items increasing without an increase in wages and salaries.

Evidence

Evidence Before The Court

On 16 April 2023, the applicant provided:· a hearing submission from the applicant dated 13 April 2023:oabout the break-in and their treatment by the Fiji Police Forceothat he was facing significant economic hardship that threatens his ability to survive, and he mapped his progress on a 10-point scale from 2004 to 2019, when he claimed he hit zero and he could not advance any further and if he was still in Fiji it would have been minus 10 and continued with ‘negative’ putting him into severe distress or even death ohe claimed that as a result of the economic hardship, his sister and brother-in-law decided to move him to Australia as the only solution in overcoming these significant harmsohe claimed that returning to Fiji would be extremely harmful for him due to:· being a victim of unaccepted behaviours while the previous military government was in power because he was a member of the Fiji Army while working for a private company. He claimed that things would get worse for him as a result of the election loss. He would be in a more disadvantageous position and more vulnerable to unethical behaviour against him and in a less favourable position when seeking employment and government assistance if required· unemployment has increased and Fiji’s high debt has put the country in tough times ahead, which will cause him financial harm· he cannot pay the outstanding hospital bills without employment in Australia because he would be working in Fiji at a lower pay rate and $15,800 remains of the bill· three years of being separated from his family is not easy and he hopes that one day they will be able to take full advantage of the opportunities in the Northern Territory. His wife has recently completed her [Certification] and has extensive experience over the years and would be able to access the vast employment opportunities in the Territoryohe is grateful for the opportunity to study and work in Australia and further his education. It would be more stressful if he could not work. ohe sees similarities between him and Belinda Checkley and claimed that he has no life back in Fiji and is a hardworking, law abiding and productive member of Australia society. · a letter dated 11 April 2023 from [name], Fiji Police Force, certifying that on 3 January 2016 the applicant lodged a report that his house was broken into, listing the items stolen· an undated letter from [a] JP, about the applicant’s wife’s character, experience and training· a [university] certificate of attainment and transcript for a [course] completed by the applicant’s wife from 27 February to 10 March 2023· a [College] statement of attainment for the applicant’s wife for provide first aid completed on 14 March 2023.· a letter dated 15 April 2023 from the applicant’s wife about the applicant being ‘stressed out’ in 2019 and suffering from severe headache, body pains, asthenia and blood coming out of his ears. Despite seeking treatment at four hospitals there was no improvement until the applicant went to Darwin where, after a few months, his health drastically improved and he decided to stay. She said that she sought his medical records from the four hospitals but only one record was located at [a] Hospital· a letter dated 13 April 2023 from [a doctor], [Health Centre 1] stating that the applicant was seen on 19 February 2019 for headache and body pains. [He] was treated with paracetamol for his above presentation· an article from Daily Mail Australia dated 11 April 2023, ‘Breakthrough for British woman who faced being deported in Australia despite living Down Under for 11 years as Immigration Minister makes dramatic intervention, and· an article from Felix Chaudhary in The Fiji Times dated 5 April 2023 ‘PM: Tough times ahead – ‘Coalition government has achieved much.Assessment of claims and evidence

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

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 The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. Background The applicant’s personal details were set out in his application for protection. He is[age] years old and was born in [Fiji]. At the time he made his application, he stated that he was married with [children]. He had studied a [degree] in Queensland and worked as an [occupation] in Fiji. He provided details of his wife and children in Fiji and his Australian-citizen sister, who was a support person at the hearing.Country of reference The applicant claims that he was born in [Fiji] and is a citizen of Fiji. He provided a copy of the biodata page from his Fijian passport. The Tribunal is satisfied that the applicant is a citizen 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. The applicant claimed that he left Fiji to visit his parents, especially after his father was diagnosed with [a medical condition]. He also wanted to discuss how to settle his father’s hospital bills, to look for work in Australia to pay the bills, and to look for opportunities for his family to live in Australia. He claimed that he had experienced harm in Fiji. He claimed he experienced psychological harm when his father was admitted to hospital as a private patient and the family was responsible for his hospital bills. He claimed he experienced financial harm with the weakening Fijian currency and sending money to Australia and when two offers to buy one of his properties fell through. He claimed in 2015, thieves broke into his house and stole $10,000 worth of contents and he was hurt to see his military belongings, including his medals, lying everywhere. He claimed he experienced self-neglect when, despite reporting the break-in to police, no police report was provided. He claimed that there is no freedom of the press or free speech in Fiji and they are worried about losing their job. He claimed the majority of people in Fiji hate the Fiji Military Forces and any military personnel, whether they took part in the military coup or not. He claimed that when he returned from a one-year military tour he began to feel hatred, feeling of ‘negligent’ at work and even at church. He claimed they became a target for people as proved by the burglary.