2010665 (Refugee)
[2022] AATA 4401
•14 September 2022
2010665 (Refugee) [2022] AATA 4401 (14 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Christopher David Parish (MARN: 9791199)
CASE NUMBER: 2010665
COUNTRY OF REFERENCE: Fiji
MEMBER:Nora Lamont
DATE:14 September 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 September 2022 at 11:00am
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and political opinion – indigenous Fijian – investigation and torture by police and military after accidental disappearance and presumed death of friend – returned failed asylum seeker – no further harm to applicant or any zto family – no evidence of anti-government profile – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(5), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a citizen of Fiji, applied for the visa on 22 November 2017. The delegate refused to grant the visa on the basis that the applicant would not be persecuted by the Fijian authorities if he were to return to Fiji and therefore was not a person against whom Australia had protection obligations. Following is a summary of the delegate’s decision: [1]
[1] [Reference number]
In their decision the delegate accepted that:
· The country information for Fiji was indicative of on going police brutality and harassment of those who held opposing political views against the Fijian government.
· It was plausible that the applicant was detained and accused of killing his friend.
· Indigenous Fijians were under-represented in certain industries and employment sectors in Fiji.
However, the delegate did not accept that:
· The applicant has an adverse on-going profile with the Fijian authorities. In arriving at this conclusion, the delegate considered the country information available at the time and the applicant’s statement that the then Police Commissioner was taking steps to investigate into matters of police and military brutalities which indicated to the delegate that the applicant could seek protection from Fijian police.
· The applicant will suffer serious harm and persecution because of his indigenous Fijian heritage. The delegate made this finding relying on the country information available to them at the time of the decision which indicated that indigenous Fijians are engaged in all aspects of the community and the government.
· The applicant will suffer harm and persecution at the hands of the Fijian authorities if we were to be returned to Fiji as a failed asylum seeker. The delegate relied on the country information available on this matter and the fact that many failed Fijian asylum seekers have previously returned to Fiji and the Department is not aware of them being harmed or persecuted by the Fijian government. The delegate also relied upon the fact that Protection visa applications in Australia are processed with utmost confidentiality and because of this the chances of the Fijian government becoming aware that the applicant is a failed asylum seeker were remote.
Cumulatively the delegate found that:
· The applicant did not meet the definition of refugee as defined in s 5H(1) of the Act and therefore is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act; AND
· The applicant will not suffer serious harm as defined in s5J(5) of the Act as a result of him being removed to Fiji and therefore is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
3. The applicant appeared before the Tribunal on 30 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
4. The applicant was represented in relation to the review however the representative did not participate in the hearing on 30 August 2022.
5. Post-hearing the applicant was allowed for a further time till 13 September 2022 to make submissions. He sent in a letter he wrote, a letter from his GP, and a [Social media] post he made. [2]
[2] AAT Folio
6. Based on copies of the applicant’s passport which was provided to the Department and to the Tribunal, the applicant’s oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Fiji and has assessed his claims against that country in relation to s.36(2(a) and s.36 (2) (aa) of the Migration Act.
7. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
8. There are no non-disclosure certificates on the applicant’s file.
Criteria for a protection visa
9. 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 OF Claims and evidence
The issue in this case is whether the applicant will suffer harm and or will be persecuted by the Fijian authorities, if he were to return to Fiji and therefore, he is a person against whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s background details are as follows:
· The applicant is a [Age]-year-old male national of Fiji who was born in the island of [Island] in Fiji on [Date].
· The applicant arrived in Australia on a Visitor visa (Subclass-600) [in] September 2017 and has remained onshore since.
· He applied to the Department for a Protection visa (Subclass-866) on 22 November 2017 and the Department refused him the visa on 19 June 2020. The decision to refuse the Protection visa was made by the Department without offering the applicant an interview.
· In his visa application, the applicant stated that he is married, and his wife and children at the time of visa application were residing in Fiji with whom he was in regular contact via social media daily. He also claims that he is a follower of the [Church] faith and can read, write and speak in Fijian and English languages.
· The applicant applied for a merits review of the Department’s decision to refuse him the Protection visa on 26 June 2020, which is the current case in consideration.
Following is a summary of events in chronological order related to this review application:
| Events | Description |
| Sometime in [Year] | Applicant goes fishing and his boat capsizes and the person he was fishing with does not make it to onshore Fiji. |
| Sometime in 2014 | The appointed Police commissioner in Fiji starts investigating into the assault cases where the police and military have been involved. |
| 30 August 2015 | In a news article the Prime Minister of Fiji issues a verbal warning to those who hold views against the Fijian government. |
| [September] 2017 | Applicant first arrived in Australia on a Visitor visa (Subclass-600). |
| 22 November 2017 | Applicant applied for a Protection visa (Subclass-866) |
| 19 June 2020 | Department refuses the applicant the Protection visa. |
| 26 June 2020 | Applicant applies for a merit’s review of the Department’s decision to refuse him the Protection visa. |
The applicant’s protection claims are summarised in his visa application and the Department’s decision. He claims that:
· He claims that sometime in [Year] he was fishing in Fiji with a person named [Mr A] and around [Time 1] their boat capsized. The applicant was able to swim back to the shores but [Mr A] did not make it out.
· When the police started investigating [Mr A]’s disappearance the military got involved and the applicant was accused of killing [Mr A].
· The military officers who were involved in the investigation took the applicant to their military camp and started torturing the applicant by kicking and making him do military exercises.
· The military officers also cuffed the applicant’s hands and feet and threw him into a pod of water.
· In 2014 the applicant was happy that the then Police Commissioner in Fiji started investigating into the conduct of Fiji police and military involving assaults and torture of people.
· The applicant claims that since coming to Australia claims that he has expressed his concerns on social media regarding the torture and infringement of indigenous rights of Fijians at the hands of the government at the time.
· The applicant claims that the Prime Minister of Fiji – Mr Vorege Bainimarama made a public statement warning those who opposed the government that they would not be spared.
· He claims that because Fiji is a small country those who speak against the government cannot relocate or hide and the Fijian government has informers all over the places in Fiji.
Tribunal Hearing
I asked the applicant to tell me what happened to him in [Year]. He said he was going fishing with [Mr A] and they left at [Time 2]. They reached the fishing grounds around [Time 1] and he dropped the anchor. After he dropped the anchor three waves came. The first wave broke the anchor, the second wave caused water to go onto the boat and the third wave capsized the boat.
He said the boat was a [boat] that used to be his father’s boat. It had no motor just oars and he went frequently to the fishing grounds as he sold some of the fish and some of the fish was for his family. I asked how he knew [Mr A] and he said he was married to someone he knew and that he had come and asked to go fishing with him.
After the boat capsized, he tried to loosen the anchor to make the boat adrift, but it was stuck, and it took about 20 minutes. During this time [Mr A] started swimming away from the boat. He knew he needed help so he shouted three times but there was no response. One person was fishing about 300 metres away, but he didn’t respond, and he pulled up his anchor and went away. When that person reached town, he called the police and told them he heard shouts for help, but the police did not respond. The applicant said he then made attempts to bring his boat to shore and he clung onto the boat and used it as a way to get to the shoreline.
The boat capsized at [Time 3] and he reached an uninhabited island, and his Uncle was there checking on his fishing net. He explained to him what had happened, and he took him to the village. When he got home his wife was shocked to see him and she called his brother who was a prison officer, and he called the police.
The man who heard his screams for help was able to confirm to the police that he was the one he heard screaming for help, and he apologised to him. At the police station they took his statement and took him to the jetty and the police and coast guard went out searching for his friend. They looked around a two-mile radius to the fishing ground. The police took him back to the station and told him to go to the naval base and when he arrived, they took his statement. Then he went back to the fishing grounds and naval divers came looking for the body. By now it was sunset again and he had not had any sleep. They took the applicant home and told him that there would be an investigation. The following morning the police and the military arrived, and they took him to the military camp.
When he reached the military camp, they took him and put him in a cell. Why he was taken he does not know. After 20 minutes they took him out of his cell and made him run around doing jumping and put him in a [vehicle] and accused him of murder. The victim’s younger brother was in the military. They threatened that he was going to face a penalty and he denied he had committed murder. They drove him around and went near the prison but in between there was a [location]. They forced him out and told him to run/ They told him to take all his clothes off there was an accusation I had murdered someone. He was fully naked, and he had to crawl into the [location] and while he was crawling, he could feel kicks and they wanted me to admit that I killed him. This assault went on for quiet awhile. They made him walk naked and then hosed him off. He slept that night in the camp cell. The following morning, they took him to the market, and they bought chilis and they handcuffed both his feet they made him take his clothes off and took him to the edge of a pool and told him hew was going to die. They covered his body in chilli and even out it in his bottom then they threw him in the pool with his feet handcuffed. He thought he was going to die.
They did this three times. They continued to use a baton on him and the butt of a gun—they wanted him to confess. They took him back to the military base and transferred him to the military police. He only had underwear on and they told him to take it off and made him walk around women to embarrass him. This was the second day of this treatment and his elder brother found out he was at the military camp and came and found him.
Questions
I told the applicant I did not understand why they would treat him so badly after the boat had capsized. He said they were adamant that he confesses to murder. I asked if it was because [Mr A]’s brother was in the military. He said he knew his brother well. I said then why would they think you had murdered him? He said he failed to understand as they went to the same church.
I asked him if he had been in trouble with the military or the police before? He said that he had been arrested for assault five or six years prior when he went into someone’s house and assaulted them.
I told the applicant I had a [news source] that states they were looking for [Mr A] but it says nothing about him being accused of murder. I asked him if he got some legal help after he was assaulted by the military and he said he didn’t have the money to have a lawyer.
I asked him what happened after this? This happened in [Year] and that he came to Australia in 2017 so what happened during those [years]? He said an acquaintance of his from the military said he should be alert. He also said sometimes the military would come around and he doesn’t know why.
He said he had to save money to come to Australia and it took him [years]. He said he expresses his concerns on social media and he posts about his plight.
I read the applicant DFAT that states:[3]
Conditions for returnees
5.28 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.
[3] DFAT Country Information Report Fiji 20 May 2022
29. The applicant responded that these are people who failed their claims unlike me who has a real claim. I have a real claim where people like me have real cases. I don’t agree with this statement.
30. I asked him why he was frightened to return to Fiji when in the five years he lived there after the assault nothing happened to him? He said he did fear them, he didn’t lose that. He also said he has recorded opinions now. I asked him for documentation of his social media.
31. I asked him what he thought would happen to him if he was to return to Fiji. He said he is convinced that it will be worse, and he will lose his life.
Country Information
Country information on Fiji by Department of Foreign Affairs and Trade (DFAT) (May 2022) provides the following information which has been considered by the Tribunal for this review application:
Military
The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.
The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.
Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.
Police
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.
Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.
According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.
Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.
Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses. In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident.
A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest.
With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube. Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them.
Judiciary and access to law
Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021.
The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.
Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.
The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. It provides services in family, criminal and civil law and may file out briefs to private lawyers who may volunteer their time and expertise. Eligibility criteria apply, with an annual income threshold of FJD15,000 (about AUD10,000). The Commission has recently increased its geographic outreach and more people, including in rural and maritime areas of the country, are now able to access its services. There may be few other lawyers practising in more remote areas, which may in practice mean that people cannot access representation, especially where Legal Aid is already acting for the other party. The quality of legal services provided by legal aid is variable.
Treatment of returnees
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.
A report prepared by Department of Home Affairs: Common Claims for Fiji (28 February 2022) provides the following information which has been considered for this review application:
Police
The Fiji Police Force is generally seen as capable and impartial but has been involved in the adverse treatment of opposition activists. Fiji has a police-to-population comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific. The Fiji Police Force is generally a professional, albeit under-resourced, law enforcement organization. It is generally seen to be impartial and has some ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible. However, there have been credible allegations of police involvement in beatings and assaults and impunity is a problem in cases with political implications. DFAT reported in 2017 that credible contacts had also made allegations to it that the Police Intelligence Bureau was routinely involved in monitoring and occasional harassment of opposition activists.
Judiciary
The judiciary in Fiji is not fully independent and, as a result, it does not provide protection to high-profile opponents of the government. DFAT reported in 2017 that the government retains influence over judicial appointments, and the judiciary appears to display partiality in the exercise of its authority. In low-level civil and criminal cases, the courts generally appear competent and even-handed, but partiality may emerge in politically sensitive cases. A shortage of prosecutors and judges has resulted in the slow processing of cases. The judicial system has been assessed as not being capable of providing protection to high-profile opponents of the government. For low-profile and non-political matters, however, it is generally capable of providing effective state protection.
Findings
I found the applicant to be spontaneous and unrehearsed in his evidence. I accept that the applicant went with his friend fishing and his friend swam away, drowned and was never found. Both oral and written evidence points to this occurrence.
Further I accept that the applicant was taken by the military and was subjected to beatings and humiliation before being let go. However, I do not accept that after the applicant was released from custody that he was in anyway targeted or suffered any further from the military.
I do not know why the military did what they did to the applicant, perhaps he had something in his background prior to this incident that made him a target but, in the end, he was not charged with murder and he did not suffer any further consequences after the event. He was able to stay in Fiji and work and support his family whilst he was saving money to come to Australia. Whilst he said an acquaintance told him to watch his back and he said the military would come around I do not accept that the applicant had a genuine fear as he continued to live and work for another five years in his home area after the incident.
Further, the applicant did not move away from his home area to avoid his fear and he left his family –wife and children in the village and nothing negative has happened to them as a consequence of their relationship with him.
The applicant sent in a [Social media] post about an assault that had occurred that he had commented on. I accept that this is a post the applicant commented on. However, there is no evidence that the applicant has an anti-government or military profile that would lead authorities to persecute the applicant.
The applicant sent in a letter from his GP which states that the applicant told him he was assaulted in [Year] and suffered injuries. There is no other written evidence of any sustained injuries or ongoing injuries from this incident in [Year].
I do not accept that based on one incident in [Year] the applicant has a political profile that would lead to his arrest, detention, or persecution upon return to Fiji. Whilst the applicant claims the government will not accept failed asylum seekers there is no current country information to indicate that this would be the case. Indeed, many Fijians travel in and out of Fiji on a regular basis and the relationship between Australia and Fiji is a strong one.
Conclusion
For these reasons, I am not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he returns to Fiji for any reason. I am not satisfied that the applicant has a well-founded fear of persecution for one or more of the five reasons mentioned in s.5J(1)(a) if he returns to Fiji.
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk he will suffer significant harm.
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Fiji, there is a real risk that the applicant will suffer significant harm from the military, the police or their associates. I am therefore not satisfied that the applicant meets the alternative provisions in 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.
Nora Lamont
Member
| Document List-2010665-[the applicant] |
| Tribunal File-2010665 |
| 1. Application for review dated 26 June 2020 |
| 2. Department of Home Affairs: Decision Record dated 19 June 2020 |
| 3. Copy of applicant’s passport |
| 4. Pre-Hearing Submissions dated 27 August 2022 |
| 5. Post-Hearing Submissions dated 13 September 2022 |
| Department File - [Reference number] |
| 1. Visa application dated 22 November 2017 |
| 2. Submission to the Department by the applicant’s representative dated 27 November 2017 |
| 3. Copy of applicant’s passport |
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
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
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.
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.
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.
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.
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.
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
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.
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.
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Protection visas – criteria provided for by this Act
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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