Background
Background to the litigation
The applicants have provided copies of their passports to the Department and the Tribunal, which shows that they are Fijian citizens. The Tribunal finds, based on the applicants’ passports, that they are nationals of Fiji and have assessed their claims on this basis. There is nothing to suggest that the applicants have a right to enter and reside in any other country, and the Tribunal finds that s 36(3) does not apply.Background The first-named applicant (hereafter called ‘the applicant’) is a [age]-year-old Fijian national who was born in [Fiji]. The second-named applicant is a [age]-year-old Fijian national who is the applicant’s daughter (hereafter called ‘the second-named applicant’ or ‘the applicant’s daughter’). In the protection visa application, only the applicant made claims for protection. At the review stage, both applicants stated they were making their own claims for protection. The applicants’ immigration history is set out in the delegate’s decision record. The applicants visited Australia on visitor visas on [date] May 2012 and departed on [date] June 2012. They visited again on visitor visas on [date] November 2013 and departed on [date] January 2014. They arrived in Australia on [date] March 2016 and have not departed since. The applicants applied for Subclass 835 Remaining Relative visas on 10 May 2016. The visas were refused and the refusal was affirmed by the Administrative Appeals Tribunal (differently constituted) on 3 January 2017. The applicants sought Ministerial intervention under s 351 of the Act and the matter was not referred on 2 February 2017. The applicants applied for the protection visas on 23 February 2017. In her protection visa application, the applicant provides the following background information:· She was previously married. Her relationship started on 8 June 2002 and she married on 28 June 2004. She is now divorced. · Her daughter was born in [year].· She completed high school and then completed a [course] in June 2013. · Her mother and sister live in Australia and are Australian citizens.· Her father and one brother live in Fiji.· In Fiji she lived in [City 1] until she left for Australia. An order for child maintenance indicates the applicant divorced her ex-husband in 2011/2012.Protection visa claims The applicant’s protection visa claims are set out in her application and in an undated statement provided with the application. These are summarised below:· The applicant claims to fear harm from her ex-husband if she returns to Fiji.· The applicant witnessed and experienced domestic violence at the hands of her father between the ages of [age] and [age] years. · Due to the violence, she left her home at [age] years, went to her cousin’s place and worked at her cousin’s [business], where she met her ex-husband.· After marriage, his behaviour started to change and he became physically abusive towards her. · The violence escalated and he attempted to kill her with a knife but she managed to run away with some injuries.· One time after an incident, she went to the police station for help and from there she was taken to the hospital for a medical examination. · She decided to divorce him due to the violence and applied for a divorce. He refused to sign the divorce papers and she returned to court several times before they were finally divorced. · Due to the divorce he got very angry and threatened to kill her. She reported this to the police and he was imprisoned for a few days. · After the divorce she began working again but lived in constant fear of her ex-husband. He attempted to harass her a few times after the divorce and sent threats through friends. · She lived in a room with her daughter at her next door neighbour’s property. · Her ex-husband attempted to break into her house late one night but she informed the local authorities and tried to escape to save herself. · She did not attempt to move to any other part of the country as she did not have a job, money or any accommodation. · Her mother lived in Australia during this time and advised her to come to Australia for a short time to relieve her stress. · She is worried that if she returns to Fiji, that her life and her daughter’s life will be in danger because of her ex-husband’s threats. · During her stay in Australia, she contacted her Fijian family friends and told them she had decided to return to Fiji. They told her that her ex-husband was saying to everyone that she had run away with her daughter and he was still furious and angry about this. He warned her through friends that if she were to return to Fiji he would kill them both.
Evidence
Evidence Before The Court
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 OF CLAIMS AND EVIDENCE The issues in this case are whether there is a real chance, that if the applicants return to Fiji, they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Fiji, there is a real risk they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Country of nationality The applicants have provided copies of their passports to the Department and the Tribunal, which shows that they are Fijian citizens. The Tribunal finds, based on the applicants’ passports, that they are nationals of Fiji and have assessed their claims on this basis. There is nothing to suggest that the applicants have a right to enter and reside in any other country, and the Tribunal finds that s 36(3) does not apply.Background The first-named applicant (hereafter called ‘the applicant’) is a [age]-year-old Fijian national who was born in [Fiji]. The second-named applicant is a [age]-year-old Fijian national who is the applicant’s daughter (hereafter called ‘the second-named applicant’ or ‘the applicant’s daughter’). In the protection visa application, only the applicant made claims for protection. At the review stage, both applicants stated they were making their own claims for protection. The applicants’ immigration history is set out in the delegate’s decision record. The applicants visited Australia on visitor visas on [date] May 2012 and departed on [date] June 2012. They visited again on visitor visas on [date] November 2013 and departed on [date] January 2014. They arrived in Australia on [date] March 2016 and have not departed since. The applicants applied for Subclass 835 Remaining Relative visas on 10 May 2016. The visas were refused and the refusal was affirmed by the Administrative Appeals Tribunal (differently constituted) on 3 January 2017. The applicants sought Ministerial intervention under s 351 of the Act and the matter was not referred on 2 February 2017. The applicants applied for the protection visas on 23 February 2017. In her protection visa application, the applicant provides the following background information:· She was previously married. Her relationship started on 8 June 2002 and she married on 28 June 2004. She is now divorced. · Her daughter was born in [year].· She completed high school and then completed a [course] in June 2013. · Her mother and sister live in Australia and are Australian citizens.· Her father and one brother live in Fiji.· In Fiji she lived in [City 1] until she left for Australia.
Decision
Reasons for decision
As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.DECISION The Tribunal remits the matter for reconsideration with the following directions:(i) that the first-named applicant satisfies s 36(2)(a) of the Migration Act; and(ii)that the second-named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named applicant.Suseela DurvasulaMemberATTACHMENT - 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
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether there is a real chance, that if the applicants return to Fiji, they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Fiji, there is a real risk they will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Country of nationality The applicants have provided copies of their passports to the Department and the Tribunal, which shows that they are Fijian citizens. The Tribunal finds, based on the applicants’ passports, that they are nationals of Fiji and have assessed their claims on this basis. There is nothing to suggest that the applicants have a right to enter and reside in any other country, and the Tribunal finds that s 36(3) does not apply.Background The first-named applicant (hereafter called ‘the applicant’) is a [age]-year-old Fijian national who was born in [Fiji]. The second-named applicant is a [age]-year-old Fijian national who is the applicant’s daughter (hereafter called ‘the second-named applicant’ or ‘the applicant’s daughter’). In the protection visa application, only the applicant made claims for protection. At the review stage, both applicants stated they were making their own claims for protection. The applicants’ immigration history is set out in the delegate’s decision record. The applicants visited Australia on visitor visas on [date] May 2012 and departed on [date] June 2012. They visited again on visitor visas on [date] November 2013 and departed on [date] January 2014. They arrived in Australia on [date] March 2016 and have not departed since.