2010653 (Refugee)

2010653 (Refugee) [2024] AATA 2286 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2010653
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Bryn Butler
DATE:22 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 March 2024 at 2:08pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – serious economic hardship – lack of detail about her current husband’s opinion about the applicant – subject of gossip for his background – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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
Background

The applicant is a [age]-year old man who is a citizen of Fiji. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Protection visa application
The applicant arrived in Australia on [date] December 2016 as the holder of a Subclass 600 visa. He applied for the protection visa on 4 December 2017.
In the visa application, the applicant set out his claims for protection. At the first hearing the applicant told me that his uncle prepared the visa application. The claims are summarised as follows:
·The applicant left Fiji because he was facing serious economic hardship. He had to seek financial stability.
·His mother left Fiji when he was[age] years old for a job opportunity in [Country 1] and he was raised by his uncle (his mother’s brother) since that time. His uncle got married in 2003 and he lived with his uncle and his uncle’s family since that time. His uncle is his role model and mentor, and was his main carer since early childhood. The absence of his biological parents caused him emotional pain. He was born out of wedlock. The applicant referred to the help and mentorship of his uncle, and that this helped him to endure struggles in life.
·He moved with his uncle and uncle’s family to Australia on [date] December 2016. His uncle is a church minister and took up a role as a pastor in a church in [City 1] at that time. The applicant saw coming to Australia as an opportunity of a lifetime because, even though he completed [a grade] in Fiji, there is a risk of experiencing long-term unemployment in Fiji.
·The applicant’s mother returned to Fiji in 2016 and got married in the same year. The applicant’s new husband loves his mother, but does not get along with the applicant and rejects him with deeds and tries to cover this up with good words.
·He referred to the "Vola ni Kawa Bula" (or Native Land Register) in Fiji which is commonly known as the VKB and is the official Fijian register of native landowners. He said that because he was born out of wedlock, he is labelled as "B" which means "Bastard" in the VKB. He said that to be labelled as a bastard is both offensive and insulting, and that he believes that all human beings are born with equal and inalienable rights and fundamental freedoms.
·He said that the protection he needs is to be given a chance to advance his education and be given employment opportunities. He said that in Fiji, despite the steady but slow economic improvement, unemployed workers including those leaving school are not finding jobs, and the government’s attempts at addressing the problem have been unsuccessful.
The applicant submitted to the Department of Home Affairs a number of documents in support of his application. These included news articles on child neglect in Fiji, the effects of political turmoil on children and children’s rights in Fiji, being labelled ‘b’ in the land registry, information about the cost of living in Fiji and unemployment for youth (although it notes people may be recorded as being unemployed when they are doing subsistence work), breakdown in family values, youth crime, police brutality including the death of youth detainees in police custody, the Fijian budget, and disputes between workers and the government. An extract of a land register was also provided. I have considered all the material provided by the applicant.
The applicant also provided a number of character references, and documents related to his mother, including a statutory declaration from his mother consenting to the applicant living with his uncle.
The applicant also wrote a letter to the Department in appreciation for being granted work rights and stating he had obtained employment at [Company 1].
The delegate refused to grant the visa on 2 June 2020 on the basis that they were not satisfied that the applicant was owed protection by Australia.
Application for review
The applicant applied to the Tribunal on 25 June 2020 for review of the delegate’s decision.
The applicant submitted a work reference letter from [Company 1], and a number of identity documents, with his review application.
Hearing
The applicant appeared before me on 14 February 2024 and 18 March 2024 to give evidence and present arguments. On 14 February 2024 I received oral evidence from Reverend [A], who leads the church the applicant attends, and Mr [B], who is the applicant’s manager at his current place of employment, [Company 1]. The applicant requested that both hearings take place by video. I exercised my discretion to hold the hearings by video. I determined it was reasonable to hold hearings by video, having regard to the individual circumstances of the applicant where he lived a long distance from the Tribunal and preferred to attend by video. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments as there were no connection difficulties and the applicant was able to respond to all my questions and express himself clearly.
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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Consideration of claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
For the following reasons, I have concluded that the decision under review should be affirmed.
Applicant’s personal background
The applicant discussed his childhood at the hearing. He said he was born in [City 1], Fiji and lived with his mother and grandparents until he was [age] years old. His mother went to [Country 1] when he was [age], and he then stayed with his grandparents, and also his uncle and aunt, until he came to Australia in 2016. When his grandparents were ill, he would move in with his uncle and aunt, and sometimes other relatives. He has a younger half-brother in Fiji (the applicant and half-brother have the same mother; the applicant’s mother’s current partner is not the father of the half-brother). The applicant said he does not know his father.
The applicant said he passed [a grade] in Fiji and failed [a higher grade], and that his plan (prior to coming to Australia) was to get a job in a hotel, because they lived in a tourism area, or study at a practical school. He received his [school] results around the same time his uncle decided to move to Australia. Following his attempt at [a grade], he came to Australia with his uncle and uncle’s family.
He said that he decided to come to Australia with his uncle because he wanted to be able to support his grandparents by working in Australia. He wanted to give back to them as they had supported him during his childhood. He recalled his living situation growing up when he had to share houses and rooms, and he didn’t always have food to eat when he came home from school.
Since being in Australia, he said he has stayed with his uncle and helped him with his ministry work. He has mainly lived with his uncle and uncle’s family who have settled in [City 1], and also spent time with his aunt’s older sister who lives in NSW. He couldn’t do paid work for a period of time because of his visa. When he was granted permission to work, he obtained a job at [Company 1] as a contractor. He now works there full-time [doing specified work]. He [does specified work]. He makes sure workers are fully engaged in their work. As part of his work, he has undertaken [training], and is currently completing a [qualification]. He said that he hasn’t been able to complete all units to date because of his visa status and the [course] required more units than he was allowed to study. He said that his employer provided funding for his training at TAFE, and that they have been investigating ways to sponsor the applicant for a visa.
He lives with his uncle and his uncle’s family in [City 1]. He attends church weekly and is involved in [sport] teams, including at a state level.
In terms of contact with relatives in Fiji, he said that he is in contact with his mother every few months and remains in contact with his younger brother on social media. He is also in contact with an aunt (his mother’s younger sister) and that he has helped her financially. He said that his younger brother lives with his mother. His grandparents have sadly passed away since he came to Australia.
Applicant’s fear of harm in Fiji
At the first hearing, the applicant said that his uncle is occupied with church work and so he has tried to take the burden of his visa application away from his uncle and so has recently taken charge of the application himself, but that his uncle was managing the application previously. He said he had recently come to understand the requirements of the protection visa.
I asked the applicant what he feared if he had to return to Fiji. He said his main concern about returning to Fiji is his living situation and obtaining employment, and whether he would have connections in Fiji because he has deactivated his social media accounts twice to avoid negative talk about his mother and brother, and people requesting financial assistance from him. He also said that apart from his mother, his half-brother, and aunt, he is not in contact with other family in Fiji and he doesn’t have many contacts there since he left in 2016 after [a grade]. He also said that he doesn’t know how to be something in Fiji, being a reference to finding employment in Fiji, and referring to an incident where he did one day’s work in the tourism industry and was not successful securing the job. He said that in Fiji he didn’t have plans for the future and sometimes struggled academically.
He said that he has an issue with his stepfather, because his stepfather doesn’t like him and he doesn’t know why this is the case.
He also referred to an incident in Fiji, told to him by his aunt and uncle, where a man who was a family friend was beaten up by police, and he came to church with bruises. He said that the man may have stolen something to eat and tried to run away. He said that his aunt and uncle told him not to be affected by peer pressure and that it wasn’t the man’s fault. The applicant said he remembered thinking he would have to endure this type of situation if he returned to Fiji and couldn’t get a job. The applicant said he doesn’t follow politics in Fiji and follows sport. He said he was aware of some headlines about police brutality, but he hasn’t paid a lot of attention to the news.
As the applicant had only recently come to understand the protection visa requirements, I invited the applicant to a second hearing to give him an opportunity to raise any further issues with me. At the second hearing, the applicant said that he had tried to contact his mother in Fiji after the first hearing but he had been unsuccessful (she hasn’t responded to his messages). He asked whether his mother could give evidence to the Tribunal, and I said that he can put forward any person as a witness and I would consider the request. I asked him what he would like his mother to give evidence about. He said he thought she could talk about the situation with her husband. I noted that I may accept that it wouldn’t be possible for him to live with his mother given that her husband has indicated he does not like the applicant. I gave the applicant further time (until 21 March 2024) to let me know if he intends to give further evidence, and/or if he would like me to contact his mother as a witness at a hearing. I said that if he didn’t contact the Tribunal by that date, I would proceed to a decision on the material before me. The Tribunal has not received any further correspondence from the applicant since the hearing of 18 March 2024.
Applicant’s mother’s husband
The applicant said that he first met his mother’s current husband a few years ago at a church conference, which was before his mother had married him. His mother married her current husband a year after the applicant came to Australia. He said that he heard from people, such as his grandmother, that his mother’s current husband doesn’t like him and they don’t know why. He said that when there was a heated argument in Fiji, his mother’s husband would throw in the applicant’s name, but he wasn’t sure what was said. His grandmother told him to avoid his mother’s husband and not think about it. He said that his mother was sorry about the situation.
The applicant said that his half-brother, who lives with his mother and her current husband, left the family home for a period of time because of issues with the current husband, and he has since returned to the family home. The applicant did not provide further details about this incident.
The applicant said that if he returns to Fiji, he doesn’t envisage being able to live with his mother and her current husband, and that it wouldn’t work out.
I accept that the applicant’s mother’s husband does not have a close relationship with the applicant. The couple married after the applicant had come to Australia and the applicant does not speak to him on the phone. The applicant’s grandmother, who informed the applicant that his mother’s current husband didn’t like him, passed away two years after the applicant arrived in Australia (which would have been in 2018/2019). Five years or so have passed since then. The applicant has not been threatened by his mother’s current husband, and his half-brother, while he left the family home for unknown reasons, returned and is currently living with his mother.
The applicant is now a [age]-year old man and largely grew up with his uncle and grandparents (not his mother). If he returned to Fiji, he would do so as an adult male and not a child reliant upon his mother (his economic situation is discussed below). I accept that his mother’s husband may not care for, or be fond of, the applicant, however, there is no indication that the applicant’s mother’s husband wishes to harm the applicant for any reason, or would wish to harm him for any reason in the future. Given the lack of detail about her current husband’s opinion about the applicant and because he has not been threatened by his mother’s husband, I do not accept that the applicant faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future from his mother’s current husband.
Financial situation in Fiji, including living arrangements
The applicant expressed that his main concern, if he had to return to Fiji, was in relation to how he would support himself and his living arrangements. I accept that, given the applicant has grown up with his uncle, and as part of his uncle’s family, that he would prefer to remain in Australia with them. The applicant said that he was included as part of his uncle’s visa application as a secondary applicant, but that the applicant’s application was refused. Following this, his uncle assisted him to apply for the protection visa. I accept that the applicant would prefer to remain in Australia given that he has spent most of his young adulthood in [City 1] as part of the community.
I accept that the applicant’s situation in Fiji if he had to return would require him to obtain employment and find a place to live. I put to the applicant that according to the DFAT Country information for Fiji, it is one of the most developed and connected economies in the Pacific Islands region and is defined by the World Bank as an upper-middle income country.[1] The information indicates that tourism dominates the economy and other industries include agriculture and natural resources, and that the overall unemployment rate in 2022 was 4.3 per cent.[2] The country information also indicates that poverty can be a problem in Fiji but that kin-based wealth distribution leads to lower rates of extreme poverty than might otherwise be expected.[3] Given the applicant’s skills in irrigation and management and the overall state of the Fijian economy, I put to the applicant that it appears he would be able to obtain employment if he had to return to Fiji. I also referred to the applicant’s relatives in Fiji, such as his aunt who he has supported from Australia, and whether they would be able to assist him upon return, noting the information about kin-based support in Fiji.
[1] Department of Foreign Affairs and Trade, Country Information Report – Fiji (20 May 2022), para 2.7.
[2] Department of Foreign Affairs and Trade, Country Information Report – Fiji (20 May 2022), para 2.8; ‘Unemployment, total (% of total labor force)’, The World Bank (Unemployment, total (% of total labor force) (modeled ILO estimate) - Fiji | Data (worldbank.org), undated, accessed 13 February 2024.
[3] Department of Foreign Affairs and Trade, Country Information Report – Fiji (20 May 2022), para 2.9.

I took evidence from [Mr B] of [Company 1] who has known the applicant since August 2022. He said that the applicant is [a] supervisor and the scale of the operation is large and he is instrumental to the [role]. He said that the applicant completes the job with diligence and is committed to the role. He noted that [work] can be exhausting and that the applicant’s commitment has been strong. He said that the applicant’s character is good and that he has strong morals, and that he boosts the mood of any room. These characteristics mean that the applicant is highly relied upon at [Company 1].
I accept that the applicant was not successful in securing a job in the tourism industry in Fiji prior to coming to Australia. As I discussed with the applicant, this was prior to him coming to Australia and he was younger at the time with limited work experience. He is now a [age]-year old man, and has worked in Australia since 2019, including in a management role. The evidence before me indicates that the applicant is now a highly dependable and diligent employee. His current employer is exploring options for him to be sponsored by the company and remain in Australia, which is testament to his contribution to the company and his work ethic. At the second hearing, he said that the company will look into options in more detail once the current busy period ends. There is also no indication that the applicant would be denied employment for one of the refugee reasons in Fiji. I find that, as the applicant has matured since he was in Fiji and has work experience in Australia, he would be able to find employment if he returned to Fiji, potentially in [a field] given his skills developed at [Company 1] or he may now be successful in securing work in the tourism industry particularly given his work ethic and management skills. This employment would allow him to live, and subsist, in Fiji, and while the standard of living would be below that in Australia, I do not accept that his financial situation in Fiji, where he would be able to find gainful employment, would amount to serious harm or significant harm.
In terms of the applicant’s living arrangements, I accept that he may not be able to live with his mother if he returns to Fiji. This is because the applicant does not think he could live with his mother’s current husband and that it has been indicated that his mother’s husband does not like the applicant. I do not accept that the applicant’s mother’s husband would harm the applicant, but accept that the applicant would not live with her because of the presence of her husband and that it may not be an acceptable arrangement to his mother’s husband. I accept that the applicant has limited his contact with some relatives and friends in Fiji since being in Australia. He has remained in contact with his aunt, and has assisted her financially from Australia when she recently married. Referring to the kin-based support system in Fiji, I find that the applicant would be able to reside with his aunt for a time upon his return while he settles into life in Fiji. After obtaining employment, he would be able to secure alternative accommodation, with may be with other people or independently. The is no information to suggest that the applicant would be refused accommodation for any of the refugee reasons. The applicant’s uncle in Australia may also assist him reintegrate into Fiji, and the applicant said that his uncle may know people who could pick him up from the airport. Given the applicant’s circumstances (that is, having an aunt who is in contact with in Fiji and his uncle in Australia who the applicant said may know people in Fiji) I do not accept that he would be homeless if he returned to Fiji. I do not accept that the applicant’s living arrangements I have found the applicant would find in Fiji amount to serious or significant harm.
Other matters
According to the applicant, the visa application was prepared with the assistance of his aunt and uncle, which includes news articles submitted on politics, police brutality and the situation for those labelled as ‘b’ in the Native Land Register. At the hearing, when asked what he feared about returning to Fiji and the political situation, he referred to police brutality and a fear that he might end up like the family friend who was beaten by the police.
I accept that a family friend was beaten by the police after he stole food, and that the applicant fears that this may happen to him if he doesn’t get a job (meaning he may also have to steal food and be confronted by the police). As I have found above, the applicant is a diligent employee with an exemplary record. Given his experience and demeanour, I have found that he would secure employment if he returned to Fiji. As he would secure employment, he would not be in a position where he would need to steal food or come to the police’s attention. He has not been politically active in the past and I do not accept that he would be politically active in the future, given his focus has been on playing sport and working, and I find this would continue if he returned to Fiji. Accordingly, I do not accept that there is a real chance, or a real risk, that the applicant would come to the attention of police, and as such he would not be the victim of police brutality.
When I asked the applicant about being labelled as ‘b’ (meaning bastard), he spoke about having to fill out forms in Fiji which asked for his father’s name and/or where his father was from. He said he might be embarrassed if he said he didn’t know where his father was from, so he would put his grandmother’s village. He said at the time he didn’t understand the culture in Fiji but now understands that people put labels on others and gossip. He did not further discuss being labelled as ‘b’ and noted that his uncle had completed the application form. He also said that if he returned to Fiji, people would gossip and note that he was returned from Australia despite his spiritual hard work.
I have to consider whether such treatment amounts to serious or significant harm. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. For the purposes of complementary protection criterion, ‘significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. For instance, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
I accept that people who were born when their parents were not married are labelled as ‘b’ (meaning bastard) in the Native Land Register. The term is derogatory and relies upon the parents’ status at the time of a person’s birth and has nothing to do with the applicant’s character or abilities. However, while the ‘b’ marker in the register is unfortunate, I do not accept that it is intended to cause extreme humiliation and to bring about suffering, rather it is the use of language which is no longer considered acceptable. I do not accept that the label amounts to serious harm or significant harm, having regard to the non-exhaustive list of what may constitute serious harm, and the definition of significant harm. Further, based on the information before me it does not interfere with the applicant’s ability to be on the register. Accordingly, I do not accept being labelled ‘b’ in the Native Land Register amounts to serious harm or significant harm.
I have also considered the situation where the applicant had to insert his grandmother’s village or make up details to avoid embarrassment at not knowing his father’s name or village. I accept that this situation in Fiji was difficult for the applicant, and that he has come to understand that people may have put a label on him or gossiped about him because of his family background. The applicant was able to continue to play [sport] without incident. I do not accept that past embarrassment, or being the subject of gossip for his background, amounts to serious or significant harm. I have also considered whether people talking about his return to Fiji would amount to serious or significant harm. I accept that, if the applicant returned to Fiji, some people may ask about the circumstances of his return and why he had come back. It would be open to the applicant to explain his circumstances to people, if they asked or gossiped, or he could remain silent on the matter. While it may be uncomfortable, there is no indication that he would be discriminated against for any reason, including because he had returned from Australia. I do not accept that being talked about because he had returned to Fiji after a number of years would amount to serious or significant harm.
I have also considered the claim that the applicant’s uncle is his mentor and he faced emotional turmoil in Fiji, as a reason why he wishes to stay in Australia and not return to Fiji. As I explained to the applicant, I have to consider whether he would face a real chance of serious harm, and that the harm has to be directed at him for one or more of the five refugee reasons in s 5J(1)(a), and as noted above, in terms of the complementary protection assessment, ‘significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). The definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’ refer to ‘an act or omission’, which means that only an action or a failure to act would fall within the definition, which may be distinguished from a consequence of an act or an omission. I accept that the applicant would prefer to remain with his uncle and family in Australia, and that he experienced a difficult childhood in Fiji, and that returning to Fiji now may be difficult for him, including having to move away from his uncle and uncle’s family. However, the emotional situation, where he is no longer living with his uncle and uncle’s family, and where he has suffered previous emotional turmoil during childhood in Fiji, would not be directed at him for any of the five refugee reasons in s 5J(1)(a), and I also do not accept that it amounts to serious harm. There is no act or omission on the part of another person in relation to his emotional situation in Fiji after leaving his uncle and his uncle’s family in Australia. Separation from family in Australia, where the claimed harm arises from the act of removal itself, will not meet the definition of ‘significant harm’.[4] In terms of the previous emotional turmoil in Fiji, as a result of his upbringing, while I accept his upbringing with his uncle and grandparents in Fiji was difficult for him, the complementary protection criterion is a forward-looking one of reasonable foreseeability and the act or omission (from which the relevant harm arises, i.e. his childhood suffering) must take place, or continue to take place, in the future. An act or omission that is wholly in the past is not capable of engaging the complementary protection criterion.[5] Accordingly, I find that the applicant’s difficult childhood in Fiji and any turmoil resulting from it would not amount to significant harm.
Conclusion
[4] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
[5] BVT20 v MICMSMA (2020) 283 FCR 97 at [86].
Given my findings above, I do not accept that the applicant will face a real chance of serious harm, or a real risk of significant harm, for any reason now or in the reasonably foreseeable future if he returned to Fiji.
Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Bryn Butler
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.
…

[2024] AATA 2286

22 March 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction