2101809 (Refugee)

Case [2023] AATA 4853

2101809 (Refugee) [2023] AATA 4853 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr John Benjamin Vevers (MARN: 1067816)

CASE NUMBER:  2101809

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Fraser Robertson

DATE:12 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 December 2023 at 10:05am

CATCHWORDS
REFUGEE – protection visa – Fiji – small business owner and money lender – higher risk and financial failure – ostracism by family and community – multiple previous travel – vague claims and no supporting evidence – no pre-hearing statements or submissions, and consent to decision without hearing – country information – failed business owners not a particular social group – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AVQ15 v MIBP [2018] FCAFC 133; 361 ALR 227
BBK15 v MIBP (2016) 241 FCR 150
Chan v MIEA (1989) 169 CLR 379
CQG15 v MIBP [2016] FCAFC 146; 253 FCR 496
CSV15 v MIBP [2018] FCA 699
DQU16 v MHA [2021] HCA 10; 273 CLR 1
EIG17 v MICMA [2023] FedCFamC2G 804
ESD17 v MIBP [2018] FCA 1716
GLD18 v MHA [2020] FCAFC 2
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33; 210 FCR 505
MZAAJ v MIBP [2015] FCA 478
Selvadurai v MIEA [1994] FCA 301; 34 ALR 347
SZLPH v MIBP [2018] FCAFC 145; 266 FCR 105
SZLVZ v MIAC [2008] FCA 1816
SZTAL v MIBP [2017] HCA 34; 262 CLR 362
SZSPT v MIBP [2014] FCA 1245

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

INTRODUCTION

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. On 11 December 2023, the applicant sought this application be determined on the papers.

  3. For these reasons, the decision under review should be affirmed.

    BACKGROUND

  4. The applicant is a [Age]-year-old male from Fiji. The applicant lodged a protection visa application on 18 October 2020 (PV Application).

  5. The PV Application claimed, in summary, that:

    (a)the applicant was a small family business operator, which included a [business] and money lending. He claimed that the money lending business involved a high return because he could charge 20% interest. The applicant claims that the higher-risk nature of moneylending and the high unemployment rate in Fiji badly affected both businesses to the point that they had to close;

    (b)the failure of his businesses resulted in family problems and tension.…

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Details
AGLC
2101809 (Refugee) [2023] AATA 4853
Case
[2023] AATA 4853
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a protection visa to a national of Fiji. The applicant claimed to be a small business owner and money lender who faced risks of financial failure, ostracism by family and community, and potential harm in Fiji. The delegate had refused the visa, finding the applicant had not established a nexus to protected grounds, could obtain protection from family, and that economic conditions did not constitute significant harm. The applicant sought review by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa under s 36(2)(a) or the complementary protection criterion under s 36(2)(aa) of the *Migration Act 1958* (Cth). This involved assessing whether the applicant had provided sufficient particulars and evidence to establish their claims, and whether the claimed fear of harm was linked to one of the protected grounds. The Tribunal also considered whether failed business owners constituted a particular social group for the purposes of protection obligations.

The Tribunal applied the principle that the onus is on the applicant to specify all particulars of their claim and provide sufficient evidence, with no obligation on the Tribunal to assist in establishing the claim. The Tribunal noted the applicant's extensive travel history between Fiji and Australia. Despite being invited to provide submissions and attend a hearing, the applicant ultimately consented to a decision on the papers without a hearing and without lodging any pre-hearing submissions or statements. The Tribunal found that failed business owners were not a particular social group and that the applicant had not provided sufficient evidence to establish a real risk of significant harm on any of the protected grounds.

The Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant was not invited to attend an interview.DELEGATE'S DECISION On 27 January 2021, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa. The delegate noted that on 20 October 2020, the Department acknowledged the applicant's application and advised him that he could provide additional information in relation to his claims. By the time the delegate made her decision on 27 January 2021, the delegate noted that the applicant had not provided any further information. In refusing the applicant a protection visa, the delegate considered that:(a)she was not satisfied that the applicant's claimed fear of harm had a nexus to any of the reasons set out in s 5J(1)(a) of the Act;(b)the applicant could obtain protection from any harm he feared from "unnamed and unidentified individual/s (his own family)", which would result in the applicant not facing a real risk of significant harm; (c)that mental health care would be available to the applicant in Fiji, and he would not be denied access to such treatment for any one or more of the reasons set out in s 5J(1)(a) of the Act;(d)the economic conditions in Fiji did not amount to significant harm as it was not cruel or inhuman treatment or punishment as defined in s 5(1) of the Act and would not involve the intentional infliction of harm; and(e)the applicant was not a person in respect of whom Australia owed protection obligations by reason of either ss 36(2)(a) or 36(2)(aa) of the Act.REVIEW APPLICATION The applicant applied to the Tribunal for review of the delegate's decision on 17 February 2021. The applicant provided a copy of the delegate's decision record and a copy of the notification of the refusal to the Tribunal. Mr. Vevers, a registered migration agent, represented the applicant in the review application. On 16 November 2023, the applicant was:(a)informed that having considered the material before the Tribunal, the Tribunal was not in a position to make a decision favourable to the applicant on this information alone; and(b)requested to provide any submissions and statements by 11 December 2023; and(c)invited to attend an in-person hearing before the Tribunal on 18 December 2023. At the request of the applicant and his representative, the Tribunal modified the hearing to be conducted by Microsoft Teams because the applicant was working in Queensland. On 23 November 2023, the applicant, through Mr Vevers, provided a completed hearing response form which indicated that the applicant would participate in the hearing and that "pre-hearing submissions (incl. statement) will be lodged with the AAT". On 11 December 2023, the applicant, through Mr Vevers, advised the Tribunal that the applicant did not wish to attend the hearing on 18 December 2023 and sought a decision on the papers. Neither the applicant nor his representative lodged any pre-hearing submissions or statements.RELEVANT LAW The attachment to this decision includes a summary of the relevant law and an extract of key provisions of the Act.

Ratio Decidendi

Legal Principle Established

The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a) or the complementary protection criterion contained in s 36(2)(aa) of the Act.Consideration of the applicant's claims Section 5AAA of the Act provides that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[3] The Tribunal has no responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.[3] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J). When assessing the claims made by an applicant, I am not required to uncritically accept any or all of the allegations made by an applicant.[4] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.[5][4] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J). [5] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).Country of nationality The applicant claimed to be a national of the Republic of Fiji. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that the applicant is a Fijian national. I find that Fiji is the applicant's country of nationality and the receiving country.Resolution of claims The applicant appears to have an extensive travel history between Australia and Fiji. The PV Application claims that among other things:(a)the applicant was born in [Location], Fiji. Between [Year] and [Year], the applicant lived in [Town 1]. The applicant then moved to [Town 2], where he lived until December 2016;(b)between [December] 2016 and [January] 2017, the applicant lived in Queensland;(c)between [January] 2017 and [August] 2017, the applicant lived in [Town 2];(d)between [August] 2017 and [September] 2017, the applicant lived in New South Wales; (e)between [September] 2017 and [October] 2018, the applicant lived in [Town 2]; (f)between [October] 2018 and [November] 2018, the applicant lived in New South Wales; (g)between [November] 2018 and [March] 2019, the applicant lived in [Town 2]; (h)between [March] 2019 and [March] 2019, the applicant lived in New South Wales; (i)between [March] 2019 and [September] 2019, the applicant lived in [Town 2], and(j)between [September] 2019 and [October] 2020, the date of the protection visa application, the applicant lived in Western Australia.