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2103132 (Refugee)

2103132 (Refugee)

Case [2024] AATA 3861 28 June 2024

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2103132 (Refugee) [2024] AATA 3861 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sunny Pratap Chandra (MARN: 0959742)
CASE NUMBER:  2103132
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Lisa Lo Piccolo
DATE:28 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2024 at 3:19pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – political opinion – a SODELPHA supporter – political affiliations including his involvement, support and association with Sodelpha – mild PTSD – does not accept that the applicant was an active supporter of the SODELPHA party – applicant had provided inconsistent and contradictory information – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 425, 417, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 16 February 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the protection visa currently under review on 25 November 2019 and was granted an associated bridging visa A.[1] The delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2) of the Act.
[1] Department delegate decision, Tribunal file 2103132, Doc ID no: 8204600.
The applicant appeared before the Tribunal on 23 April 2024 by video link (first hearing), and in person on 8 May 2024 (second hearing) to give evidence and present arguments. The Tribunal also heard evidence from [Mr A].
The applicant was represented in relation to the review.

The applicant’s personal background

The applicant is a [age]-year-old indigenous Fijian man from [town] in Fiji.
In his Protection visa application, the applicant claims to speak, read and write Fijian and English, and to speak Hindi. He undertook his primary and secondary education in Fiji. He states that he has no relatives in Australia or overseas including parents or siblings who are not included in his protection visa application. He also states that he has one aunt in Australia as a personal contact. However, he told the Tribunal that he has parents, and two sisters live in Fiji, and his uncle [Mr A], who lives in [City 1 Australia] with his family.
The applicant arrived in Australia on a Tourist FA 600 Visa on [date] September 2019 which ceased on [date] December 2019.[2]
[2] Ibid.
The applicant gave evidence that since arriving in Australia…

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.

Continue reading 2103132 (Refugee)

Details

AGLC: 2103132 (Refugee) [2024] AATA 3861
Case: [2024] AATA 3861
Decision Date: 28 June 2024

CaseChat Overview and Summary

The applicant, a citizen of Fiji, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to fear persecution due to his political opinion, specifically his alleged support for the SODELPHA party. The delegate of the Minister had found that the applicant had not established a well-founded fear of persecution, citing credibility concerns arising from inconsistent and contradictory information provided by the applicant. The matter came before the Federal Circuit and Family Court of Australia.

The central legal issue before the Court was whether the applicant had discharged the onus of proving that he held a well-founded fear of persecution for reasons of his political opinion, as required for the grant of a protection visa under the *Migration Act 1958* (Cth). This involved assessing the applicant's credibility and determining whether his claimed political affiliations and the alleged consequences of those affiliations met the threshold for persecution.

Her Honour, Judge Lo Piccolo, affirmed the delegate's decision. The Court found that the applicant had provided inconsistent and contradictory information regarding his involvement with the SODELPHA party. These credibility concerns led the Court to conclude that the applicant had not established that he was an active supporter of the party, nor that he held a genuine fear of persecution on that basis. Consequently, the Court was not satisfied that the applicant had a well-founded fear of persecution for reasons of his political opinion. The decision under review was affirmed.

Orders