2010658 (Refugee)

2010658 (Refugee) [2023] AATA 4403 (10 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2010658

COUNTRY OF REFERENCE: Fiji
MEMBER:Katherine Harvey
DATE:10 October 2023
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 October 2023 at 9:17am

CATCHWORDS
REFUGEE – protection visa – Fiji – no Convention claims – harm from a previous partner – Australian citizen child – family separation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751
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 dependants.
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 12 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Fiji (Fiji) and is [age] years old. He arrived in Australia [in] October 2019 on a temporary [visa].
He applied for the protection visa on 13 December 2019.
A delegate of the Minister refused to grant the visa on 12 June 2020.
On 25 June 2020 the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 13 September 2023 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the applicant but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 October 2023 and to provide all documents he intended to rely on to support his case by 2 October 2023.
The applicant appeared before the Tribunal on 9 October 2023 to give evidence and present arguments. I exercised my discretion to hold the hearing by Microsoft Teams video. I determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay in the matter if the hearing was not to be conducted by video.
The applicant gave evidence about his background, his migration history and his claims for protection. I am satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf.
The applicant was not represented in relation to the review.
For the following reasons, I have concluded that the decision under review should be affirmed.
Material before the Tribunal
The applicant provided a certified copy of his passport with his application for protection.
In his application, he advised that he would be providing a copy of his birth certificate but a copy was not provided.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
Background
The applicant’s personal details are set out in his application for protection. He is [age] years old and was born in [Province 1], Fiji. He claimed that he was an Indigenous Fijian, a Christian and a farmer. He claimed he lived in [Village 1] in [Province 1] until December 2013, before moving to Lautoka in 2014 and Suva in January 2015. He provided details of his father, mother, [and specified family members].
The applicant visited [Country 1] from [November] 2016 to [July] 2017 and [Country 2] from [July] to [August] 2017 and [January] to [March] 2019 for [work]. At the hearing, he explained that he came to Australia [for occupation 1 work] for three months.
In Fiji, the applicant [did occupation 1 work] and worked as [an occupation 2] at [Employer 1] from 2014. In Australia the applicant [does occupation 1 work], currently for [Employer 2] in [a location in the] Northern Territory, and works for [Employer 3] undertaking [specified duties].
Country of reference
The applicant claims he was born in [Province 1], Fiji. He provided a certified copy of his Fijian passport with his application and at the hearing he claimed that he is citizen of Fiji.
The Tribunal is satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purposes of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in the application for protection.
The applicant claimed that he had to leave Fiji because of the ill treatment and harm he received at the hands of a woman he had a relationship with. She conceived and told him she was expecting twins and his family were overjoyed. She gave birth while he was in [Country 2] and she claimed one baby had a medical condition and had to remain in hospital. However, he discovered she had been lying and gave birth to a singleton. He claimed that she had been seeing someone else and her family had rejected him.
He claimed he would face harm and mistreatment from her relatives because he wanted the baby to be registered under his name also. He claimed they physically harmed him when he was seeking answers from her. He claimed the authorities had taken her side and seeking help seemed difficult because of the rights that protect women in Fiji and because she claimed to be the victim.
He claimed that he did not try to move or relocate because of financial constraints.
Evidence and findings
At the hearing, the applicant was forthright and direct. He explained that his cousin [named] encouraged him to apply for a protection visa and his cousin filled out the form. He said his cousin just made up the claims to put something in the application.
The applicant said that he had always wanted to come to Australia to [do occupation 1 work] and settle. He [did occupation 1 work] in Melbourne for three months then went to stay with his cousin in Sydney. He was thinking about another visa to extend his stay but he had no idea what to do. He said his cousin was the one who encouraged him to apply for a protection visa.
I asked if there was anything the applicant feared would happen to him if he returned to Fiji and he said, ‘to be honest, nothing at all’. He said it was just his cousin who made up the claims and ‘to be honest, I have no issue at all back home’. The applicant claimed, and I accept, that he does not fear of harm in Fiji.
Has the applicant experienced harm?
The applicant said he did not have a former partner in Fiji with whom he fathered a child, nor had he been beaten up. He said that his family are all safe. The applicant claimed, and I accept, that he has not experienced harm in Fiji.
Family in Australia
I asked the applicant if there were any reasons that he feared returning to Fiji. He said that his daughters are still young and they need him and that his work would really miss him. He said that there are not many people up there (in Darwin) who will do work and the business is desperate for [his role].
The applicant explained that he has a partner in Australia, [Partner A], who is originally from Fiji and a New Zealand citizen. [Partner A] is a manager at [Employer 4] and was sponsored to work in Australia by her employer. The applicant and [Partner A] have a daughter [named] who was born on [date]. [Partner A] works nightshift and the applicant works dayshift and they share the care of their daughter.
The applicant has an older daughter, [named], who was born on [date] to [Ms A], who is an Australian citizen. The applicant pays child support for [this daughter] and sees her on Wednesdays after work and on Fridays and Saturdays they meet at the park and play together.
I accept that the applicant has two daughters in Australia. I asked the applicant if he would take his daughters with him if he returned to Fiji and he said he did not think so as their mothers would not allow it. He said that they need their mothers too. I accept that the applicant’s daughters and their mothers would not accompany him to Fiji.
I asked the applicant how he would feel if he returned to Fiji without his daughters. He said that he would be so sad, that he would really miss them. He said his daughters need him especially because they are still young. He said his older daughter is always so happy to see him.
The applicant claimed, and I accept, that he would be distressed if he returned to Fiji and was separated from his daughters. I considered the non-exhaustive list of the type and level of harm that will meet the serious harm test set out in section 5J(5) of the Act. I am not satisfied that the distress that the applicant would experience reaches the threshold of serious harm. I note the judgments in SZRSN v MIAC[1] and GLD18 v MHA[2] confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A) of the Act. I am not satisfied that the distress the applicant would experience is significant harm as defined in s 36(2A).
[1] SZRSN v MIAC [2013] FCA 751 at [47]–[49].
[2] GLD18 v MHA [2020] FCAFC 2 at [36]–[58].
Does the applicant meet the refugee criterion?
Having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicant returns to Fiji now or in the foreseeable future that he faces a real chance of persecution for a refugee nexus reason.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 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.[3]
[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.
At the hearing, the applicant said he did not fear being harmed in Fiji. I find that the applicant does not have a subjective fear of persecution.
I considered whether there was a real chance of persecution if the applicant returned to Fiji now or in the foreseeable future. Based on the evidence before me, I find that there is no real chance that the applicant will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I find that the applicant does not have a well-founded fear of persecution because he does not have a subjective fear of persecution and there is no real chance that he will be persecuted. As the applicant does not have a well-founded fear of persecution, I find that he is not a refugee within the meaning of s 5H of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, I considered whether on the evidence before me there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
For the reasons set out above, I consider that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is internationally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. I am also not satisfied that there is a real risk that he will suffer arbitrary deprivation of life or the death penalty. I find no grounds that suggest he will be subjected to significant harm, for any reason, if he returns to Fiji.
Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk he will suffer significant harm.
Conclusion
For the reasons given above, 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 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.
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 4403

10 October 2023

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