2110237 (Refugee) - [2024] AATA 3534

2110237 (Refugee) [2024] AATA 3534 (30 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Andrew Wun Nam Au (MARN: 1686684)
CASE NUMBER:  2110237
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Noelle Hossen
DATE:30 July 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(1) that the applicants satisfy s 36(2)(a)
(2) that the second and third named applicants satisfy s36(2)(b)(1) of the Migration Act, based on membership of the same family unit as the first named applicant.

Statement made on 30 July 2024 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – single women in Fiji – domestic violence – physical abuse – emotional or psychological abuse – debilitating effect – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 4 August 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 25 January 2017. The delegate refused to grant the visas on the basis that the applicants are persons in respect of whom Australia does not have Protection obligations.
The applicants appeared before the Tribunal on 24 July 2024 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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…

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 2110237 (Refugee)

Details

AGLC: 2110237 (Refugee) [2024] AATA 3534
Case: [2024] AATA 3534
Decision Date: 30 July 2024

CaseChat Overview and Summary

This matter concerned an appeal by three applicants against a decision of the Refugee Tribunal. The applicants, who were citizens of Fiji, sought protection visas in Australia. The primary applicant alleged a history of severe domestic violence and physical abuse by her de facto partner in Fiji, which caused her significant emotional and psychological distress, including suicidal ideation. She also claimed that reporting the abuse to the Fijian police was ineffective and that she lacked the means to relocate within Fiji. The Tribunal was required to consider whether the applicants met the criteria for a protection visa, particularly in relation to whether the first applicant constituted a particular social group and whether the state of Fiji could offer effective protection.

The court was required to determine whether the first applicant belonged to a "particular social group" as defined by the Refugee Convention, specifically as a single woman in Fiji experiencing domestic violence. This involved assessing whether such a group was defined by an immutable characteristic, a past experience, or a commitment to a particular social value, and whether the group was distinct and identifiable within Fijian society. Furthermore, the court had to consider whether the Fijian state could provide effective protection to the first applicant against the alleged domestic violence, and by extension, to the other applicants who were her sons. This required an assessment of the adequacy and accessibility of state protection mechanisms in Fiji for victims of domestic abuse.

The Tribunal considered the evidence presented, including documentary evidence of the applicants' identities and nationalities, and the first applicant's detailed account of domestic violence. The Tribunal acknowledged the first applicant's claims of physical and emotional abuse, her attempts to report the violence to the Fijian police, and her inability to relocate within Fiji due to financial and familial obligations. The Tribunal also had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' and country information assessments. Ultimately, the Tribunal found that the first applicant's claims of domestic violence and the alleged ineffectiveness of state protection in Fiji warranted further consideration. The Tribunal concluded that the decision under review should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEIDENTITY ASSESSMENTS FOR ALL APPLICANTS The first named applicant was born on [date] in Fiji. The first named applicant provided a Fijian birth certificate registered on [date]. There was no evidence that the document was a bogus document. The Delegate of the Department found that the first named applicant’s identity is as stated. The Tribunal accepts that the applicant is a citizen of Fiji. The second named applicant provided the following documents to verify his identity, nationality, and citizenship to the Department namely:Fijian Birth Certificate issued to [the second named applicant] born on [date] registered on [date] in [City 1].Certified copy of Fijian Passport bio data page for [the second named applicant] born on [date].High School Provisional Results notice 2017. There was no evidence that the documents were bogus documents. The Delegate of the department found that the second named applicant did provide sufficient evidence of his identity and nationality. The third named applicant provided the following documentary evidence of his identity, nationality, and citizenship namely: Fijian birth certificate issued to [the third named applicant] born on [date], registered [on date] in [City 1]. Certified copy of Fijian Passport data page for [the third named applicant] born [date], registered [date] in [City 1]. There was no evidence that the documents were bogus documents. The delegate of the Department found that the third named applicant did provide sufficient evidence of his identity and nationality. There is no evidence that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided the Tribunal finds that they are citizens of Fiji and as such their protection claim will be assessed against Fiji as the country of reference and “receiving country” respectively.Applicants’ migration history The first named applicant arrived in Australia [in] December 2006 on a sponsored family visitor visa. She departed Australia [in] January 2007. She applied for a further family sponsored Visa, but it was refused on the 26 March 2009. She arrived in Australia on a Visitor Visa [in] March 2014 and departed [in] April 2014.She arrived on the last occasion to Australia [in] November 2016 and applied for the Protection Visa on the 24 January 2017.Her Visitor Visa ceased on the 28 February 2017. The second named applicant arrived in Australia [in] April 2018 on a Visitor Visa. His Visa ceased on [date] July 2018. He applied for a Protection Visa on the 26 April 2019. He was granted a Bridging Visa E. The second named applicant does not have a right to work in Australia.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There is no evidence that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided the Tribunal finds that they are citizens of Fiji and as such their protection claim will be assessed against Fiji as the country of reference and “receiving country” respectively.Applicants’ migration history The first named applicant arrived in Australia [in] December 2006 on a sponsored family visitor visa. She departed Australia [in] January 2007. She applied for a further family sponsored Visa, but it was refused on the 26 March 2009. She arrived in Australia on a Visitor Visa [in] March 2014 and departed [in] April 2014.She arrived on the last occasion to Australia [in] November 2016 and applied for the Protection Visa on the 24 January 2017.Her Visitor Visa ceased on the 28 February 2017. The second named applicant arrived in Australia [in] April 2018 on a Visitor Visa. His Visa ceased on [date] July 2018. He applied for a Protection Visa on the 26 April 2019. He was granted a Bridging Visa E. The second named applicant does not have a right to work in Australia. The third named applicant arrived in Australia on a visitor visa [in] May 2018. He applied for a Protection visa on the 26 April 2019.The second named applicant does not have the right to work in Australia.Claims for protection. The first named applicant’s claim was summarised by the delegate of the department in her Decision as follows:Her de facto partner was a [Occupation 1] who physically abused her throughout their relationship from 1997 until her arrival to Australia. He would punch, kick, and bite her and use objects to assault her with, resulting in bruises and black eyes.While pregnant with both of her sons in Fiji, she slept outside in fear.Her partner knew all her relatives in Fiji and would locate her whenever she left home.She suffered suicidal ideation as a result of the abuse she faced from her partner.She was threatened and intimidated by her partner not to tell anyone about the abuse or to report it to police. She tried to lodge a report at [City 1] police station on one occasion, however no action was taken. Her partner questioned her about the report after she filed it, indicating it was not filed in confidence.She was unable to relocate to another part of Fiji due to her employment obligations required to support her children and the fact she had no one else in the country to assist her. However, she has two brothers in Australia who supported her arrival in order to escape family violence.The police department in Fiji can protect her, however she feels sorry for her two sons who favour their father, as he provides them with incorrect information, influencing them to take his side. Her two sons are currently residing with their father in the family home. She provided supporting documents including a support letter from her brother [Mr A], employment history report and a statutory declaration signed by her and dated the 7 April 2021, and her further claims were: