2009792 (Refugee)

2009792 (Refugee) [2023] AATA 2388 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Christopher Parish (MARN: 9791199)
CASE NUMBER:  2009792
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:4 May 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 04 May 2023 at 4:20pm

CATCHWORDS
REFUGEE – Protection visa – Fiji –applicant did not claim to fear harm – Tribunal does not accept that the applicant has experienced physical harm – economic hardship –mental health– applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379

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 4 June 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 the Republic of Fiji (Fiji). The applicant is a [age]-year-old man, the second named applicant is a [age]-year-old woman. The applicant and second named applicant are married and they have two sons, a [age]-year-old born in Fiji and a [age]-year-old born in Australia.
On 7 October 2015, the applicant was granted a Temporary Work (Skilled) (subclass 457) visa.
The applicant last arrived in Australia on [date] January 2017 and the second and third named applicants last arrived in Australia on [date] February 2017.
On 3 October 2019, the applicants applied for protection visas.
On 4 June 2020, a delegate of the Minister refused to grant the visas.
On 9 June 2020, the applicants appointed an authorised representative.
On 12 June 2020, the applicants applied for a review of that decision. They 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 30 March 2023, the Tribunal wrote to the applicants 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 Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 19 April 2023 and to provide all documents he intended to rely on to support their case by 12 April 2023.
On 12 April 2023, the migration agent submitted a personal statement dated 7 April 2023, signed by him on the applicant’s behalf, and a partially legible copy of the front page of [a] newspaper (date obscured).
On 14 April 2023, the migration agent provided statutory declarations from the applicant and second named applicant advising that they had helped prepare the personal statement dated 7 April 2023 and declaring that its contents are true.
On 17 April 2023, the migration agent provided two incomplete articles about the applicant’s brother:
· [Title], [newspaper] [date] January 2007, page 1
· [Title], [newspaper], [date] March 2007, page 1.
On 18 April 2023, the migration agent provided statutory declarations from [a named person] dated 4 April and 11 April 2023 about her intention to offer the second named applicant a full-time position as an [Occupation 1] working for [Employer 1] in [Town 1] and support her to apply for a [Visa].
On 18 April 2023, the Tribunal wrote to the migration agent advising that a number of attachments referred to in the personal statement had not been provided.
On 19 April 2023, the migration agent emailed the Tribunal advising that ‘I have decided not to attach those documents as they were not relevant to the “persecution claims”. I could send later if requested/required. My regrets/sorry for not have “amended the relevant email letter”.’
The applicant and second named applicant appeared before the Tribunal on 19 April 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 applicants. 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 applicants were given a fair opportunity for evidence to be given and arguments presented on their behalf.
The applicants were represented in relation to the review and their representative attended the hearing by Microsoft Teams video.
On 26 April 2023, the representative emailed the Tribunal advising that Fiji’s retirement age is 60 years of age.
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, 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
The issue in this case is whether the applicants have a well-founded fear of persecution for a refugee nexus reason, or if they are owed complementary protection, or if they are 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 are 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 two children. The applicant first visited Australia from December 1996 to January 1997, he again visited from November 2015 to December 2016, and he last arrived in Australia in January 2017. He provided details of his brother living in Queensland and his siblings in Fiji and [Country 1]. He qualified as a [Occupation 1] and worked for [Employer 2] for 20 years before resigning to come to Australia on a 457 visa.
The second named applicant is [age] years old and was born in [Fiji]. She first visited Australia from December 2014 to March 2015, she again visited from December 2015 to March 2016, and she last arrived in Australia in February 2017. At the hearing, the second named applicant explained that in Fiji, her family are the landowners of a resort and she worked [at] the resort. In Australia, she has obtained [qualifications] and she works in [a field].
The third named applicant first visited Australia from December 2015 until March 2016, and he last arrived in February 2017. The fourth named applicant has not travelled outside Australia.
Country of reference
The applicant claims that he was born in [Fiji], the second named applicant claims that she was born in [Fiji] and the third named applicant claims that he was born in [Fiji]. The first three applicants provided copies of their Fijian birth certificates and the biodata pages from their Fijian passports with the application and claimed that they are citizens of Fiji.
The fourth named applicant claims that she was born in [Australia] and is a citizen of Fiji. As discussed at the hearing, under s 8(1) the Citizenship of Fiji Decree 2009, children born outside the Fiji Islands on or after 10 April 2009 are eligible to acquire Fiji citizenship by registration if at the date of the child’s birth either one of the child’s parents was a citizen. As both of the fourth named applicant’s parents are citizens of Fiji, the Tribunal finds that the fourth named applicant is eligible to acquire Fiji citizenship by registration.
The Tribunal is 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 his application for a protection visa.
The applicant claimed that if he returned to Fiji, he would be deprived of the right to work and receive income, and without income his family cannot survive and they will be reduced to poverty.
He claimed that if he returned to Fiji he would be denied work and the ability to support his family. He claimed that having once returned and left for Australia on a 457 visa he will never be employed again.
He claimed that he would experience harm by being denied the ability of having an income because of his family history following the murder of his brother by the military and also he went to Australia to work.
He claimed he was told that there was no point in submitting job applications.
He claimed that he did not try to move because in Fiji, when having been past employed in [a field], there is nowhere one can go without your history being known. He claimed that the sad family history follows everywhere and the knowledge that he went to Australia for work.
He claimed that he would be harmed by being denied work and income that will harm himself and his family.
He claimed that in Fiji the government authorities all lock in together and that once a person has been blacklisted it stays that way.
He claimed that he could not relocate because the knowledge of the past follows all over Fiji island. Fiji is a small island population.
He provided copies of the first three applicants’ birth certificates and passport biodata pages, the applicant and second named applicant’s marriage certificate, the fourth named applicant’s birth certificate and documents relating to his 457 visa and employment.
The other applicants did not raise their own claims for protection.
Assessment of claims and evidence
At the hearing, the applicant said that his Australian employer told him that the company was not willing to pay for his permanent residency and he said that he could not afford to pay $18,000. He said that his 457 visa was going to expire within days and that was the moment for him to jump to the protection visa application.
The Tribunal discussed the criteria for a protection visa in some detail. The applicant said that he did not want to go back to Fiji because even though the government has changed it is still tough living there now.
At the hearing, the applicant was asked if he stood by his protection visa application claims. He said ‘yes’. He was asked if there were any claims that he wanted to change. He said ‘no’.
Has the applicant experienced harm?
In his personal statement, the applicant stated that he was a key witness to his brother having been taken away by military officers on the morning of [date] January 2007. He claimed that his brother was murdered and he knows the officers who took his brother away but he could not fight for his brother’s innocence because the judicial and government systems were compromised by the Bainimarama government. He claimed that military personnel implementing such crimes had been granted immunity from prosecution. The applicant claimed that the military officer was proven guilty of murder but only served one month in jail. He claimed that his objections to the jail term were well known in Fiji and made it impossible for him in the work environment.
In pre-hearing submissions, the representative provided the front pages of [a] newspaper for [date] January 2007 and [date] March 2007 that reported the applicant’s brother’s death.
At the hearing, the applicant said that on a Friday morning in January 2007, six or seven soldiers came and took his brother [for] questioning, and he died in military custody. He said that in 2007, the High Court in Fiji found one of the soldiers guilty of murder and he was sentenced to only six months’ jail.
The applicant was asked what had happened to his family since then. He said that in 2007, the soldiers were patrolling every night after his brother was killed and he did not feel secure. He said that it was hard for him to go to town and see the police and the soldiers. He said that after 2007, his family has been left alone.
At the hearing, the applicant said that from that time, his life changed completely. He claimed he decided that he would stay and look after his father and, once his father died, he was going to get married and then leave Fiji and not go back.
The Tribunal accepts that the applicant’s brother was murdered, and that the murderer was tried and convicted through the Fiji justice system. As discussed at the hearing, the applicant continued working at [Employer 2] after his brother’s death up until he resigned to come to Australia. The applicant did not provide any corroborative evidence that his objections to the jail term were well known in Fiji and made it impossible for him in the work environment. The applicant did not provide any evidence that the media coverage caused him any problems. The Tribunal does not accept that the applicant’s objections to the jail term made it impossible for him in the work environment.

Denied employment
In his personal statement, the applicant claimed that he would have no hope of sourcing sustainable employment. He claimed that by being denied work, he will not be able to support his family. He claimed that he will never be employed because Fiji is a small country and in his specialised field as a [Occupation 1] he would be known everywhere. He claimed that once his attitude to the government was known there was no way he would be given employment in [this] field. He claimed that it was made known to him that there was no point submitting applications. He claimed that being denied work and income would make it impossible to care for his family and educate his children, which would put them at risk of being a displaced or persecuted family. He claimed it would be devastating for him as father and breadwinner and against society’s interests.
At the hearing, the applicant said he thought it would be hard to go back because he did not know how he would fit into the work environment in Fiji and he would have to go and stay in the village and do full-time farming, which is a hard life in Fiji.
When asked why he thought he would not find a job in Fiji, the applicant said that he had been gone seven years and he did not know if he can get back into a job as a [Occupation 1]. He said he did not know if there were vacancies for him in [this field], but he also said that he had not looked for jobs. He said that the only job for him now is a security job at FJD2.86 an hour and he does not think he could survive on that income.
When asked who had told him that there was no point submitting job applications, the applicant said that he thought there was no way he was going to get employment because he resigned and because of his age. At the hearing, his migration agent claimed that Fiji’s retirement age was 50 years of age and he undertook to provide evidence. On 26 April 2023, the migration agent advised the Tribunal that Fiji’s retirement age is 60 years of age. As discussed at the hearing, the applicant said that he could get a job as a security guard or on the farm.
At the hearing, the second named applicant said that her family in Fiji are the landowners of [a] Resort. Three of her four siblings work at the resort and she worked there [before] coming to Australia, where she trained in [a specified field].
At the hearing, it was put to the applicants that they were both qualified with extensive work histories in Fiji and Australia and that there was no corroborative information before the Tribunal that they would not be able to obtain employment if they returned to Fiji. The applicant said that he would need to start all over again and that he did not know what he was going to do. When asked if anyone would deny him the opportunity to get a job, he said that he did not know whether it is easy for him to go back and fit in there, that the only option is to go back and stay in the village and to farm. When the second named applicant was asked if anyone would deny her the opportunity to work, she said that she was not sure.
At the hearing, the country information from the report of a March 2023 International Monetary Fund (IMF) visit to Fiji that said ‘after a sharp contraction due to the COVID-19 pandemic, the economy is experiencing a strong recovery driven by the return of tourism’[1] was put to the applicants. The applicant responded that the Prime Minister’s message for Easter told them to brace for hard times ahead. The Tribunal places greater weight on the country information from the IMF.
[1] IMF Media Release ‘IMF staff completes 2023 Article IV Mission to Fiji’, 21 March 2023.
The Tribunal notes that, absent other considerations, economic circumstances are circumstances of general application in a country and lack the degree of particularity required to give rise to protection obligations under the refugee[2] or complementary protection criteria.[3] As discussed at the hearing, there is no information before the Tribunal that suggests the applicant and second named applicant would not be able to secure employment that allowed them to subsist. There is no corroborative evidence before the Tribunal that the applicant’s objections to the soldier’s jail term impacted him in the work environment in the past or that it would in the future. The applicant has not researched job vacancies in [a sector] and the Tribunal finds his claim that he ‘does not know if I can get back into that job or not’ is purely speculative. Based on the information before it, the Tribunal finds that no one would deny the applicant or the second named applicant the opportunity to seek and gain employment. Based on the applicant’s evidence, the Tribunal finds that the applicant could find work as a security guard or on his family farm, if he did not find employment in the [sector]. Based on the second named applicant’s evidence, the Tribunal finds that the second named applicant could find work at [a] Resort. The Tribunal does not accept that there is a real chance that the applicants will face significant economic hardship that threatens their capacity to subsist or that the applicant and second named applicant will be denied the capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist.
Psychological and physical harm
[2] Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 (at [99] per McHugh J); and SZTAL v Minister for Immigration [2016] FCAFC 69.
[3] MIMIA v VFAY [2003] FCAFC 191 at [60]; and BBK15 v MIBP [2016] FCA 680 (Buchannan J 8 June 2016) at [32].

In his personal statement, the applicant claimed that he has been psychologically traumatised over the murder of his brother and the related following court cases. He claimed that such psychological trauma amounts to physical damage being persecution of a person. He claimed that psychological distress covers a wide spectrum ranging from normal feelings of vulnerability, sadness and fear to problems that can become disabling, such as depression, anxiety, extensive worries, negative thoughts and social isolation. The applicant claimed that the overall effect has of course been inherited into his wife and children.
At the hearing, the applicant said that he knew the murder happened 15 years ago but the pain and trauma are still within him and they have not gone away. He said bringing up issues about soldiers and the military is really painful because it hurts him too much. The Tribunal discussed with him that, while not discounting the grief from his brother’s death, he had been able to continue working in Fiji from the time of his brother’s death until he left for Australia in 2017, and then subsequently in Australia. The Tribunal asked the applicant if he had ever sought treatment for his mental health and he said no. He said that in Fiji ‘we don’t have that thing’. When asked whether he had sought treatment in Australia, he said that feelings he had in Fiji he does not have in Australia. When asked if he would be able to get mental health care in Fiji if he needed it, the applicant said that it is there, but we do not use it. When asked if anyone would stop him from using it, the applicant said that nobody is stopping him from using it.
At the hearing, the Tribunal asked the applicant what physical harm he had experienced. After considerable time thinking about his answer, the applicant said that he thought sometimes because of the psychological trauma he had accidents. He said that he ended up staying in hospital for two months from December 2011 to January 2012 because his mind was not with him. When asked to explain what he meant, the applicant said that he fell off a roof that he was cleaning because, as he was coming down off the roof, he was thinking about something else and there was a makeshift ladder and he fell. He said he was thinking about what was going on with him. As discussed at the hearing, the example given was about being distracted rather than physical harm associated with his brother’s death. Based on the information before it, the Tribunal does not accept that the applicant has experienced physical harm.
The Tribunal accepts that the death of the applicant’s brother caused him to suffer grief. The applicant did not provide any evidence that he had sought or obtained professional support for harm arising from his brother’s death. Nor did the applicant provide any evidence that he had been prevented from receiving professional support by his family or anyone else. There is no corroborative information before the Tribunal to support the applicant’s claim that he has been psychologically traumatised amounting to physical damage or that he experiences ‘disabling’ mental issues including depression, anxiety, extensive worries, negative thoughts and social isolation. There is no corroborative information before the Tribunal that the overall effect of psychological trauma has been inherited by the applicant’s wife or children. Based on the information before it, the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm or a real risk that he will suffer significant harm due to his mental or physical health if he returns to Fiji now or in the foreseeable future.
Failed asylum seeker
In his personal statement, the applicant claimed that the Bainimarama government made it clear that people returning following failed protection claims would be deprived of any employment opportunities and this entrenched attitude and policy will remain effective for some time. He claimed that news of the past and his protection claim would follow him and his family everywhere, especially amongst the military forces, and there will be no sanctuary.
At the hearing, the country information about the treatment of and conditions for returnees was discussed.
DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[4]
[4] Department of Foreign Affairs and Trade, DFAT Country Information Report – Fiji 20 May 2022, 25.
At the hearing, the applicant said that the government has changed but he is not sure what he is going to face, that it is something he really does not know. When asked if he feared harm, the applicant said he will just end up in the village and what is he going to do there? The applicant was asked if there was any evidence to suggest that he had been put on a blacklist. He said that there was no evidence.
The Tribunal gives greater weight to the information from DFAT about the treatment of returnees. The Tribunal finds that there is no evidence the applicant’s name has been put on a blacklist. The applicant did not provide evidence that the media coverage or his objections to the jail term affected his work environment. The Tribunal finds that there is no real chance or a real risk that the applicant and his family would experience serious harm or suffer significant harm as failed asylum seekers if they returned to Fiji now or in the foreseeable future.
Unable to relocate
In his personal statement, the applicant said that he would be unable to relocate in Fiji as his past and protection claim would follow him and his family everywhere, especially amongst the military forces and there will be no sanctuary. Having found that there is no real chance or real risk of serious or significant harm to the applicant or his family, the Tribunal finds that the need to consider relocation does not arise.
At the hearing, the applicant said he did not know if his children would fit back into the community in Fiji. He said that they would need to go to the village and start over again and change their lifestyle. He said they are being good in school here. The Tribunal accepts that there will be a period of adjustment for the children and that they will have to adjust schooling and make friends in Fiji. The Tribunal accepts that this may be difficult for them. The Tribunal considered whether there was a real chance or a real risk that the children would experience serious harm or suffer significant harm if they return to Fiji now or in the foreseeable future. The Tribunal finds the adjustments that the children would have to make would not be and have not been characterised as harming or causing damage to the children so serious as to elevate that harm to the level of serious or significant harm. The Tribunal is satisfied that there is no real chance or real risk that the children will experience serious harm or suffer significant harm if they return to Fiji now or in the foreseeable future.
Brother’s asylum in [Country 1]
In his personal statement, the applicant advised that his brother [had] been granted asylum in [Country 1]. The Tribunal wrote to the representative advising that information about this asylum had not been provided to the Tribunal. As discussed at the hearing, no information was provided about when the brother got asylum, who was in government in Fiji at the time and what his claims were.
At the hearing, the applicant said that one brother had been granted asylum because of the killing. The Tribunal explained that the protection visa application related to the applicant’s claims. The applicant said that the pain and trauma had not gone away.
Based on the information before it, the Tribunal gives no weight to the applicant’s brother being granted asylum in [Country 1].
Amnesty International 2016 Report
In his personal statement, the representative provided a summary of a 2016 Amnesty International Report ‘How Fijian security forces get away with torture’, claiming that despite Fiji’s commitment to upholding human rights, extrajudicial punishment is often meted out by security forces, the police and military officers resulting in severe injuries and sometimes death.
At the hearing, the Tribunal asked how this report related to the applicant’s claims. He said that the government has changed but he is not sure what he is going to face, that it is something he does not really know.
The Tribunal finds that the Amnesty International Report is a historic report of the situation in Fiji in and prior to 2016 under the previous government. The Tribunal notes the applicant’s evidence that the government has changed and he is uncertain of the future. The Tribunal notes that the applicant did not claim to fear harm. Based on the information before it, the Tribunal does not accept that there is a real chance or a real risk that the applicant will experience serious harm or suffer significant harm from the security forces if he returned to Fiji now or in the foreseeable future.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal 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 it, the Tribunal finds that here is no real chance that the applicants would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that there is no real chance that the applicants will be persecuted. As the applicants do not have a well-founded fear of persecution, the Tribunal finds that the applicants are not refugees within the meaning of s 5H.
Having concluded that the applicants are not refugees, the Tribunal has considered whether there is a real risk that the applicants will suffer significant harm. Considering all of the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk they will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicants for the reasons specified in paragraphs (a)-(e) of the definition of torture in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that they will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicants will suffer arbitrary deprivation of life or the death penalty.
Conclusion
For the reasons given above the Tribunal is 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.
Ministerial intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The applicant and second named applicant work in [Town 1]. [Employer 1] in [Town 1] wants to offer the second named applicant an opportunity to be sponsored to work full-time as a [Occupation 1]. To be offered this sponsored position, the second named applicant would need to demonstrate that she has worked for a minimum of two years as an [Occupation 1] and to successfully meet the criteria for the skills assessment by the Designated Area Migration Agreements (DAMA) Team along with being nominated for a [Visa].
The Tribunal has considered the case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ but has decided not to refer the matter. As discussed with the applicant and migration agent, the Tribunal notes that the applicant can still make a request directly to the Minister.
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 2388

4 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction