2011922 (Refugee) - [2023] AATA 4487

2011922 (Refugee) [2023] AATA 4487 (20 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011922
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:20 October 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal does not have jurisdiction in relation to the first named applicant.
The Tribunal affirms the decision not to grant the second named applicant a protection visa.

Statement made on 20 October 2023 at 3:45pm

CATCHWORDS
REFUGEE – protection visa – Fiji – no claim of past harm by first applicant – medical treatment in Australia and claim of inadequate facilities in home country – now deceased, with no jurisdiction to review – second applicant’s preference to live in Australia with most of family and visit husband’s grave – separation from family in Australia not serious harm – own house and pension in home country – political instability – country information – recent peaceful change of government – medical facilities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
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 25 June 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of the Republic of Fiji (Fiji) and arrived in Australia [in] July 2018 as the holders of visitor visas.
They applied for the protection visas on 19 September 2019.
The delegate refused to grant the visas on 25 June 2020.
On 21 July 2020 the applicants applied for a review of that decision. They 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 21 July 2022 the second named applicant advised the Tribunal that the first named applicant had died [in] May 2022 and she provided a copy of his death certificate.
The second named applicant (the applicant) appeared before the Tribunal on 18 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 2011922 (Refugee) [2023] AATA 4487
Case: [2023] AATA 4487
Decision Date: 20 October 2023

CaseChat Overview and Summary

This case concerned a protection visa application made by a Fijian citizen, who was the second applicant, following the death of the first applicant, her husband. The first applicant had claimed he feared inadequate medical treatment facilities in Fiji for his diagnosed medical condition. The second applicant initially sought to remain in Australia to support her husband and, after his death, expressed a desire to live with her daughter and son in Australia, citing her preference for the ease of life there and the ability to visit her late husband's grave. She also raised concerns about inferior medical facilities and the political instability in Fiji.

The primary legal issues before the court were whether the second applicant met the criteria for a protection visa, specifically whether she was a refugee under section 36(2)(a) of the Migration Act 1958, or whether Australia had protection obligations towards her under section 36(2)(aa) due to a real risk of significant harm if removed from Australia. The court also had to determine its jurisdiction concerning the first applicant, who had died during the proceedings.

The court found that it lacked jurisdiction to review the decision in relation to the first applicant due to his death, as evidenced by his death certificate. Regarding the second applicant, the court accepted her evidence that she had not experienced harm in Fiji and did not fear harm if she returned. While acknowledging her preference to live in Australia with her family and her concerns about medical facilities and political instability, the court found these factors did not amount to a well-founded fear of persecution or a real risk of significant harm. The court noted that the applicant owned a house and was entitled to a pension in Fiji, and that recent country information indicated a peaceful change of government. The court concluded that the applicant did not satisfy the criteria for a protection visa.

Consequently, the Tribunal affirmed the decision not to grant the second applicant a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection. Background The first named applicant was a Fijian citizen who was born in [Island], Fiji. He was [an Occupation 3] before he retired in 2009. He died [in] May 2022 in Darwin. The applicant is a Fijian citizen who is [Age] years old. She was born in [Town], Vana Levu, Fiji. She was [an Occupation 4] for [Number] years and retired in 2007. She married the first named applicant in 1977 and she has five children. Her oldest son lives and works in Fiji, her daughter is an Australian citizen living in Darwin and her other three sons are working in Australia. At the hearing the applicant explained that she has [grandchildren]. Her daughter has [children] who live in Australia and between them her sons have [children] who live in Fiji. She has three daughters-in-law living in Fiji and one working in Australia. Country of reference The applicant claims that she was born in [Town], Fiji and is a citizen of Fiji. She provided a copy of the biodata page from her Fijian passport. I am satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act. Summary of claims In his protection visa application, the first named applicant claimed that he had not experienced harm in Fiji. He was diagnosed with [Medical condition] in Australia and was [receiving treatment]. He feared there were no proper facilities for [treatment] in Fiji and he would not receive the same treatment if he returned, which would severely impact his health. He claimed health promotion in Fiji was concerned with communicable diseases and people were dying for lack of affordable access to [treatment]. In the protection visa application, the applicant claimed that she did not experience harm in Fiji and she did not fear harm but she wished to remain in Australia with her husband to support and assist him with his [treatment]. After the first named applicant’s death, in her 21 July 2022 email the applicant claimed that she had no children currently living in Fiji and she would like to continue living with her daughter and one son in Darwin and not leave her late husband behind. In her letter of support dated 19 September 2019 the applicants’ daughter raised the inferior medical facilities and unstable government situation in FijiAssessment of claims and evidence The applicant has provided a copy of the first named applicant’s Northern Territory of Australia death certificate dated [June] 2022. As discussed at the hearing, based on the information before me, I accept that the first named applicant has died. For this reason, I find that the Tribunal does not have jurisdiction in relation to the first named applicant. In the protection visa application and at the hearing, the applicant claimed and I accept that she has not experienced harm in Fiji. In the protection visa application and at the hearing, the applicant claimed that no one would harm her. She said ‘I don’t really think there would be anything happen to me if I go back to Fiji’.

Evidence

Evidence Before The Court

In her letter of support dated 19 September 2019 the applicants’ daughter raised the inferior medical facilities and unstable government situation in FijiAssessment of claims and evidence The applicant has provided a copy of the first named applicant’s Northern Territory of Australia death certificate dated [June] 2022. As discussed at the hearing, based on the information before me, I accept that the first named applicant has died. For this reason, I find that the Tribunal does not have jurisdiction in relation to the first named applicant. In the protection visa application and at the hearing, the applicant claimed and I accept that she has not experienced harm in Fiji. In the protection visa application and at the hearing, the applicant claimed that no one would harm her. She said ‘I don’t really think there would be anything happen to me if I go back to Fiji’. Her son said that they all understand the main purpose of the protection visa and if she went back to Fiji nothing would happen to her. He said that they would worry about her living by herself in the village by herself and that she would not have the life that she enjoys in Australia, where she is able to go to her husband’s grave every week or every month and have her daughter’s family support her. Children currently living in Fiji At the hearing, the applicant explained that her oldest son is now [an Occupation] with [Employer] based in [Town], Fiji and he lives with his wife and [children] in [City]. Based on the applicant’s evidence, I do not accept that she does not have any children currently living in Fiji. Living arrangements The applicant claims, and I accept, that she would prefer to live in Australia with her daughter. She said that she is comfortable living here and life is much easier. She said she does not have to worry about anything like food or transport because her relatives provide everything. As confirmed at the hearing, the applicant and her late husband were covered by the Fiji National Provident Fund (FNPF).[1] The applicant explained that she and her husband took all of their money out of the FNPF when they retired and used it to build their home in the village on [Island]. She said they lived on [Island] when they married and they moved back there when they retired. She said that if she returned to Fiji she would be alone in that home and she is getting old. The applicant agreed that she can still take care of herself and still cook for herself. [1] DFAT, ‘DFAT Country Information Report Fiji’ (20 May 2022) 8. I discussed the country information that says that those on the social pension aged 70 years and above received a 25 per cent increase in monthly payments to FJD125 from August 2023.[2] I asked the applicant if she would be able to receive the pension in Fiji and she said ‘yes, I think so’.[2] Vijay Narayan, ‘Social pensions increase and 1,500 FNPF pensioners who had their rates reduced will also be covered ‘ Fiji Village (30 June 2023).

Decision

Reasons for decision

For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that she is also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.DECISION The Tribunal does not have jurisdiction in relation to the first named applicant and affirms the decision not to grant the second named applicant a protection visa.Katherine HarveySenior MemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection. Background The first named applicant was a Fijian citizen who was born in [Island], Fiji. He was [an Occupation 3] before he retired in 2009. He died [in] May 2022 in Darwin. The applicant is a Fijian citizen who is [Age] years old. She was born in [Town], Vana Levu, Fiji. She was [an Occupation 4] for [Number] years and retired in 2007. She married the first named applicant in 1977 and she has five children. Her oldest son lives and works in Fiji, her daughter is an Australian citizen living in Darwin and her other three sons are working in Australia. At the hearing the applicant explained that she has [grandchildren]. Her daughter has [children] who live in Australia and between them her sons have [children] who live in Fiji. She has three daughters-in-law living in Fiji and one working in Australia. Country of reference The applicant claims that she was born in [Town], Fiji and is a citizen of Fiji. She provided a copy of the biodata page from her Fijian passport. I am satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act. Summary of claims In his protection visa application, the first named applicant claimed that he had not experienced harm in Fiji. He was diagnosed with [Medical condition] in Australia and was [receiving treatment]. He feared there were no proper facilities for [treatment] in Fiji and he would not receive the same treatment if he returned, which would severely impact his health. He claimed health promotion in Fiji was concerned with communicable diseases and people were dying for lack of affordable access to [treatment]. In the protection visa application, the applicant claimed that she did not experience harm in Fiji and she did not fear harm but she wished to remain in Australia with her husband to support and assist him with his [treatment]. After the first named applicant’s death, in her 21 July 2022 email the applicant claimed that she had no children currently living in Fiji and she would like to continue living with her daughter and one son in Darwin and not leave her late husband behind. In her letter of support dated 19 September 2019 the applicants’ daughter raised the inferior medical facilities and unstable government situation in FijiAssessment of claims and evidence The applicant has provided a copy of the first named applicant’s Northern Territory of Australia death certificate dated [June] 2022. As discussed at the hearing, based on the information before me, I accept that the first named applicant has died. For this reason, I find that the Tribunal does not have jurisdiction in relation to the first named applicant.