2109502 (Refugee)

2109502 (Refugee) [2023] AATA 2370 (28 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2109502
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:28 April 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 28 April 2023 at 9:21am

CATCHWORDS
REFUGEE – protection Visa– Fiji – fear harm from ex-husband – relationship breakdown and domestic violence – a single mother and sole breadwinner – effective protection measures are available to the applicant in Fiji – wants to work in Australia to support her family –no well-founded fear of persecution –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65,499
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 on 1 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Fiji (Fiji) and is [age] years old. She arrived in Australia on [date] May 2019, travelling on a Fijian passport as the holder of a visitor visa, which expired on [date] August 2019.
On 9 October 2019, the applicant applied for a protection visa
On 1 July 2021, a delegate of the Minister refused to grant the visa.
On 27 July 2021, the applicant applied for a review of that decision. She provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 8 March 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The applicant appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The applicant’s infant daughter also attended the hearing. The Tribunal was mindful of the applicant’s claims that her experiences had affected her mental health. The applicant was articulate at the hearing and, to the minimal extent it was required, was not distracted by caring for her daughter. The Tribunal is satisfied that she was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant was unrepresented in relation to the review.
CRITERIA FOR A PROTECTION VISA
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 has a well-founded fear of persecution for a refugee nexus reason, or she is owed complementary protection, or she is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details are set out in her application for protection. She is [age] years old and was born in [City 1], Fiji. At the time she made her application, she stated that she was separated and unemployed.
The applicant provided the names of her daughter, son and mother, who are living in Fiji, and her father and uncle, who are living in New South Wales, in her application.
Country of reference
The applicant claims that she was born in [City 1], Fiji and is a citizen of Fiji. She provided a copy of her Fijian passport with her application.
The Tribunal is satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purposed of s 36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in the application for protection.
The applicant claimed that she left Fiji because of the continuous threat and humiliation and criticism that she faced every day.
She claimed that the same threat will happen again if she returned to Fiji.
She claimed that she had experienced humiliation and mental attack from her ex and that the threat of making her disappear is scary for she knows he can do it.
She claimed she sought help but there was nothing done as her ex was in the police department.
She claimed that in her country nearly everyone knew each other but the humiliation and being embarrassed over and over again was what she felt.
She claimed that she will be harmed or mistreated if she returns because he’s always there, with phone calls and messages being passed through to friends and family.
She claimed that the authorities would not protect her because her ex is in the police department and they all hid every complaint that she brought into the department amongst themselves.
She claimed that she could not relocate within Fiji because she has tried going to [workplaces] to work but she could not. Fiji is a very small country and he will know her location.
The applicant provided:
· a statement dated 4 October 2019 in support of her claims as a single mother and sole breadwinner who has always worked to fully support her family. She claimed that she made complaints to the police department about her son’s father and they would take her report down and tell her they will deal with him directly but nothing was actioned. She also claimed that she does not want to return to Fiji yet and she wants to live her life freely and get a better job and support her children back home.
· a letter from Mrs [A] in support of the applicant living and working in Australia. Mrs [A] is the [manager] at [Workplace 1], where the applicant worked.
She claimed that she was trying to get more supporting documents from Fiji that she will submit once they arrive.
On 2 June 2021, the applicant provided a copy of her son [name]’s birth certificate.
On 1 July 2021, the applicant provided a Fiji Times article from 18 May 2021 ‘A single mum’s struggle’ about a single mother raising her children with courage and fortitude.
On 4 August 2021, the applicant provided a 4-page undated and unsigned statement that responded to the decision record and claimed that Fiji is in lockdown with increasing COVID-19 cases daily, the government is broke, more people are living in poverty, and the government is about to start a civil war by pushing through Bill 17 of 2021 that will remove the rights of landowners so it can sell Nadi airport to a foreign buyer.
On 13 March 2023, the applicant provided:
·   two copies of her daughter [Miss B]’s birth certificate
·   a letter dated [date] April 2022 from the Courts [enclosing] a Final Intervention Order from the [court] naming the applicant as the protected person and the defendant as [Mr C] ([Miss B]’s father), and
·   a copy of an order from the Fiji Family Court dated [March] 2023 confirming that the applicant filed an order for maintenance [in] November 2016 and her son’s father was ordered to pay $80 per fortnight for child maintenance [in] June 2018.
Assessment of claims and evidence
The applicant arrived in Australia on a visitor visa on [date] May 2019. The visa expired on [date] August 2019 and she was unlawfully onshore until she was granted a Bridging E visa on 1 October 2019 and applied for a protection visa on 9 October 2019.
The applicant has three children:
·   a daughter [Miss D], who was born in Fiji on [date]
·   a son [name], who was born in Fiji on [date]. His father is [Mr E], and
·   a daughter [Miss B], who was born in Australia on [date] and is residing with the applicant in Australia. Her father is [Mr C], a Fijian national.
At the hearing, the applicant explained that her daughter [Miss D] and son [live] with her mother in [City 1], Fiji in the home where she grew up. The applicant’s sister and her sister’s partner and two children also live with her mother. The applicant’s other sister, her husband and five children live in [City 1] near her mother.
At the hearing, the applicant explained that after she gave birth to her son, she was living with her mother for four months. Then she moved into her son’s father’s house with his mother and his two sisters, about 10 to 15 minutes from her mother’s house. At the hearing, she agreed that this would have been about December 2017. She said that when her son was [age], she came back one afternoon and was told by [Mr E]’s mother that [Mr E] did not want the applicant to stay and live with them because she was too old for him. The applicant said that she was told to go back to her house and all [Mr E] needs is his son. She said that she packed and went back to her mother’s house with her son that same day. At the hearing, she agreed that this would have been about June 2018.
The applicant said that [Mr E] kept calling her saying that he wants his son back. She replied that ‘if you’re not wanting me, why should I send my son to you?’ The applicant said that her son’s father would telephone her once a week between June 2018 and May 2019, when she came to Australia.
When asked what [Mr E] said during the telephone calls, the applicant said he would ask where she was and what she was doing. If she said that she was at home or at work, he would say, ‘where is my son?’ He would ask if she could bring him home and say, ‘I want my son back’.
When asked what she said in response, the applicant said that she just said that she needed to look after her son and asked why he was wanting to take her son away from her, as he had told his mother that he did not want her.
The applicant said during one telephone call, [Mr E] said that ‘if I’m going to see you, I’ll kill you.’ The applicant could not remember when he made that telephone call. The applicant said that she did not report the threat to the police and that she did not tell anyone else that he had made a threat to kill her.
The applicant was asked if she reported the calls to the police and she said no. When asked why she had not reported him to the police, the applicant said because he was just calling her on the phone. She then said that she did not want to report it to the police because they might not help her.
The applicant said that the telephone calls stopped when she came to Australia. She said that she last spoke with him just before she came to Australia in May 2019.
At the hearing, the applicant said that she is living in fear because she thinks [Mr E] wants to take her son and have her son stay with him. She said she thinks he is trying to get her son away from her. She said that she does not really know what is going to happen but she is really scared to go back to Fiji because he might do something to her. She thought that he might beat her up or he might do something bad to her. The applicant said the only reason this will happen was because he wants his son.
The applicant said that nothing is happening to her family in Fiji. She said that [Mr E] has not been in contact with her mother. She said that there has been no contact with [Mr E] except when he came to his [sister’s] home two years ago on their son’s birthday with a birthday present. When he came to the door, their son did not want to see him, so he left again.
The applicant was reminded that the decision record, a copy of which she provided to the Tribunal, records that she claimed that a month before the protection interview with the delegate, [Mr E] had gone to her mother’s house to take her son on a two-day visit. At the hearing, she said that was just one time and that he had come and asked her mother if [the son] could spend a day or two with him and the mother said yes. She said she did not know that this had happened until later and told her mother not to send her son again. She said that this happened before [Mr E]’s last contact, which was [in] July 2021.
The applicant said that [Mr E] continues to pay FJD80 per fortnight in maintenance as ordered by the Fiji Family Court. She said that he is with someone else now and she is not sure if they have children. The Tribunal explained to the applicant that it did not appear that there was a current threat, given that [Mr E] has not contacted the applicant or anyone in her family for more than two years. The applicant did not respond.
In her application, the applicant claimed that the authorities would not protect her because her ex ([Mr E]) is in the police department and the police all hid every complaint that she brought into the department amongst themselves. In her statement, she claimed that she made complaints to the police department about her son’s father and they would take her report down and tell her they will deal with him directly but nothing was actioned. At the hearing, the applicant said that there was not much help from the police because he was a police officer. She said that when she tried to file for maintenance, she had to look for him and go everywhere to give the summons. She said that the only time she needed help from the police was when she was trying to serve a summons on [Mr E] relating to the maintenance hearing and, when she went to the police station to serve him, they always said that he was not there and they did not help her.
At the hearing, the applicant was asked if she would be able to get help from the courts if she needed it, such as an intervention order. She said that if she applied for it, she thought so.
In her application, the applicant said that she had faced ‘continuous threat and humiliation and criticism’ every day. At the hearing, the applicant was asked to explain this threat and humiliation. She said that this was the humiliation and criticism she received from [Mr E] during the weekly telephone calls. She said that she had also received calls from his family. She said his mother called her when she gave birth to her son to complain about [Mr E] naming their son after his father. She said his mother asked the applicant why the child had been named after her husband and the applicant explained that it was [Mr E]’s idea. She said she then changed the child’s name to her father’s name and registered the new name on his birth certificate.
When asked at the hearing what [Mr E]’s mother and sisters did after the mother’s phone call, the applicant said that they did not do anything, there was nothing again.
The applicant was asked about her mental health. She said it was affected. She said that she was not eating well, could not concentrate fully and forgot things easily. She said that she did not go to the hospital or have a medical check. She did not tell her family, she kept it to herself. She said that she was carrying a lot of burdens as a single mother. When asked when her mental health was affected, she said it was while living with [Mr E]’s mother and afterwards as well and that it is continuing. She said that she ended up in hospital because her daughter [Miss B]’s father [Mr C] beat her up. When asked whether the people in hospital talked to her about her mental health, the applicant said that they were just advising her that if she needed a counsellor to talk to, to go and have a chat with them. The applicant did not speak with the counsellor. She said that she did not have time and she thought she would just try to handle it by herself. As discussed at the hearing, there is no corroborative evidence before the Tribunal from a medical practitioner or anyone else to support the applicant’s mental health claims, and nor have any mental health issues affected the applicant’s ability to work in the past.
At the hearing, the applicant said that she would like to add her relationship with [Mr C] to her application. The applicant said that with [Mr C] it was really bad and now they are not living together. The applicant confirmed that the intervention order was still in place. The intervention order details that:
·   [Mr C] must not assault, threaten, harass or intimidate the applicant
·   he must surrender any firearm, ammunition or part of a firearm in his possession and surrender any licence or permit authorising such possession, and
·   any licence or permit authorising such possession is suspended and he is disqualified from holding or obtaining such a licence or permit, and
·   he is prohibited from possessing a firearm, ammunition or part of a firearm in the course of his employment.
The applicant said that [Mr C] sees his daughter. He is supporting her and her daughter but he is not paying formal child support. The applicant explained that, since 2019, she had worked in Australia [until] the birth of her daughter, and that she had been on leave from her job for the last eight months. The applicant said that she needs to go back to work to support her two other children.

As discussed at the hearing, a protection visa is about harm that the applicant may face in Fiji. The applicant confirmed that [Mr C] is a Fijian citizen and that he has applied for a protection visa in Australia. She said that he is from an eastern island of Fiji and he lives in [a city]. She agreed that she could get an intervention order against [Mr C] in Fiji if he returned to Fiji.
At the hearing, the applicant said that she did not want to go back to Fiji because she would not earn enough to support her three children. She said that she wants to be financially independent. She said that she is the only one supporting them but she agreed she also received FJD80 a fortnight in maintenance. The applicant said that she had mostly worked in the tourism industry. She worked at [Workplace 1] from 2005–06 and 2011–16, and most recently at [another workplace]. Her breaks in employment were when she had children. The applicant was asked whether she could get a job in tourism, now it is back after COVID-19. She agreed that she could get a job in tourism if she returned to Fiji and that she could live with her mother and children while looking for work. She was concerned that it may take more time to find a job because she had been away. As discussed at the hearing, the Tribunal accepts that the applicant can earn more money in Australian than in Fiji, but there was no evidence before the Tribunal to suggest that the applicant would not be able to subsist in Fiji. Based on the information about her previous employment provided at the hearing, the Tribunal does not accept the applicant’s claim in her application that she tried going to [workplaces] to work but she could not.
The Tribunal asked about the applicant’s claim about Bill 17 and a possible civil war. The applicant said that her concern was that something might happen before the Fijian election. She agreed that since the election that concern has gone away.
Country information
As detailed in the protection visa decision record, a copy of which the applicant provided to the Tribunal, while there is little discrimination against women in law and official policy,[1] domestic violence is prevalent:
Domestic violence remains a problem in Fiji, and perpetrators who are convicted of the crime often receive light sentences. The Fiji Women’s Crisis Center estimates that 64 percent of women who have been in a relationship have been victims of violence committed by their partner. Sexual violence and assault rose in 2019 and rape is a serious issue in Fiji.[2]
[1] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, 21.
[2] ‘Freedom in the World 2020 – Fiji’, Freedom House,
As discussed at the hearing, the decision record addresses that there is some social support available from the government in Fiji, such as the Care and Protection Allowance that provides for children living with only one parent.
Will the applicant face harm in Fiji?
The applicant claimed to fear harm from [Mr E] because he wants his son to live with him. As discussed at the hearing, [Mr E] has had no known contact with his son since July 2021, he has not contacted the applicant since May 2019 or her family since July 2021, and he continues to pay maintenance. There is no corroborative evidence before the Tribunal supporting the applicant’s claim that [Mr E] wants his son to live with him. The Tribunal does not accept that [Mr E] wants his son to live with him.
At the hearing, the applicant claimed that [Mr E] harassed her by calling her every week from about June 2018 until May 2019, that she received calls from his family, and that in one of his calls, [Mr E] threatened to kill her. The Tribunal notes the country information about the prevalence of domestic violence in Fiji. At the hearing, the applicant said that she did not tell anyone of the threat. She said she did not report the threat or the calls to the police because it was only phone calls and she was not sure that the police would do anything. She also said that [Mr E] has not contacted her since May 2019 or her family since July 2021, and that his mother and sisters had not called her since the birth of her son. Based on the evidence from the applicant at the hearing, the Tribunal does not accept that the applicant sought help but there was nothing done because her ex was in the police department, nor that the police hid complaints that she brought, nor that the applicant did not seek help because her ex was a police officer. As discussed at the hearing, the Tribunal does not accept that there is a current, credible or plausible threat against the applicant. The Tribunal finds that there is no real chance or real risk that the applicant will experience serious harm or suffer significant harm from [Mr E], his mother or his sisters now or in the foreseeable future.
Considering that [Mr C] is a Fijian national, the Tribunal considered whether there is a real chance or a real risk that [Mr C] will return to Fiji in the reasonably foreseeable future. The applicant claimed that [Mr C] has applied for a protection visa. Without any knowledge of [Mr C]’s claims, the Tribunal cannot predict whether or not his application will be successful. However, if it were not successful, there is a real chance or risk that [Mr C] will return to Fiji in the foreseeable future. Given this, the Tribunal then considered whether there is a real chance or a real risk that he would harm the applicant in Fiji. As the applicant has a current intervention order against [Mr C] requiring him not to assault, threaten, harass or intimidate the applicant, the Tribunal is satisfied that there is a real chance or real risk that he would harm the applicant.
As detailed in the decision record, a copy of which the applicant provided to the Tribunal:
DFAT reports that legislative protection against violence is provided by enactments including the Family Law Act 2003, the Domestic Violence Decree 2009, the Criminal Procedure Decree 2009, the Crimes Decree 2009 and the Family Law (Amendment) Decree 2012.[3] In 2019, the OECD rated Fiji’s legal framework on violence against women at 75 per cent inequality[4] (that is, that the law protects women from some, but not all, forms of violence), identical to its rating for Australia.[5]
[3] Department of Foreign Affairs and Trade DFAT Country Information Report – Fiji 27 September 2017 21.
[4] Organisation for Economic Cooperation and Development (OECD) Social Institutions & Gender Index (SIGI) Fiji FJ.pdf (genderindex.org).
[5] OECD SIGI – Australia AU.pdf (genderindex.org).
At the hearing, the applicant said that she would be able to seek an intervention order in Fiji. Noting that the applicant has experience using the court system in Fiji, having obtained a maintenance order for her son, experience obtaining an intervention order in Australia, and that she agreed that she could seek an intervention order in Fiji, the Tribunal finds that effective protection measures are available to the applicant in Fiji and that the applicant could obtain protection from an authority such that there would not be a real chance or real risk that she would experience serious harm or suffer significant harm from [Mr C] if she returned to Fiji now or in the foreseeable future.
In her statement dated 4 October 2019, the applicant claimed that she is a single mother who has worked in the hospitality industry throughout her career and that she is the sole bread winner for her children and mother. She said that her children had different fathers and she did not want people hovering over her shoulder watching every move she made or criticising how she brought up her children. When her daughter was [age], she took her to live with her parents before returning to [Workplace 1], where she worked for another five years. She then resigned and returned to her family home when she things were going well with her son’s father. After the relationship with him ended, she started working as a [occupation] in a [workplace] close to her home. The applicant said that the little she earnt back home was OK but she wanted a better job in Australia to support her children back home. At the hearing, she said that she did not want to go back to Fiji because the money you get in Fiji is not enough, she wants to work in Australia to support her family. As discussed at the hearing, it is very credible that the applicant wants to support her family on her own but a protection visa is for someone at risk of harm and there was no evidence before the Tribunal to suggest that the applicant would not be able to subsist in Fiji.
At the hearing, the applicant claimed that it may take some time to find a job on her return to Fiji. The applicant has previously lived with her mother in [City 1] and her two oldest children currently live with her mother. The applicant agreed that she could live with her mother and three children while looking for work. The Tribunal notes that she will continue to receive fortnightly maintenance for her son and that her children are eligible for some social support from the government. The Tribunal finds that the applicant and her three children would live with her mother in [City 1] while looking for work. The Tribunal finds that the applicant would have a home and family support if she returned to Fiji now or in the foreseeable future. Given the applicant’s previous employment in the tourism sector in a range of roles, including after becoming a single mother, the post-COVID return of tourism, that she is of working age, that she has a strong command of English and that her previous employer wrote a letter of recommendation, the Tribunal finds that the applicant would be able to find work to support herself and her family in Fiji. The Tribunal is not satisfied that any financial hardship she may experience would reach the threshold of serious harm as it would not affect her capacity to subsist, nor would it amount to significant harm as exhaustively defined in s 36(2A). The Tribunal is not satisfied that any criticism she received as a single mother would reach the threshold of serious or significant harm.
While the applicant did not submit any medical or psychological reports and she said that she had not sought medical assistance in Fiji or Australia, the Tribunal accepts the applicant’s claim that her mental health was and continues to be affected by her experiences of relationship breakdown and domestic violence in Fiji and Australia. The Tribunal accepts that the applicant experienced stress that made it difficult for her to eat well and concentrate, and that made her forgetful. The Tribunal considered whether the applicant’s mental health would impact her capacity to work, care for her children or care for herself. As discussed above, the applicant has family support, she has not sought mental health treatment in Fiji or Australia, and she has worked in Fiji and in Australia except for breaks around the birth of her children. Based on the evidence before it, the Tribunal is not satisfied that the applicant’s mental health will so impact her ability to work and care for herself and her children as to amount to a real chance of serious harm or a real risk of significant harm.
At the hearing, the applicant said that her concerns about Bill 17 and a possible civil war had gone away after the recent election. The Tribunal notes that Fiji is no longer in lockdown because of COVID-19 and, as discussed at the hearing, tourism has returned in Fiji. The Tribunal finds that there is no real chance or real risk that the applicant will experience serious harm or suffer significant harm as a result of the former government’s proposed legislation or the previous COVID-19-related lockdown.
The Tribunal considered the applicant’s claims individually and cumulatively and whether there is a real chance that the applicant would experience serious harm or a real risk that she would suffer significant harm now or in the foreseeable future if she returned to Fiji.
The Tribunal considered whether there was a real chance of persecution if the applicant returned to Fiji now or in the foreseeable future. Based on the evidence before it, the Tribunal finds that there is no real chance that the applicant would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution because there is no real chance that she will be persecuted. As the applicant does not have a well-founded fear of persecution, the Tribunal finds that the applicant is not a refugee within the meaning of s 5H.
Having concluded that the applicant is not a refugee, the Tribunal has considered whether there is a real risk that the applicant will suffer significant harm. Considering all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of torture in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Katherine Harvey
Senior Member

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
(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 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
(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.
…

[2023] AATA 2370

28 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction