2117044 (Refugee)

2117044 (Refugee) [2022] AATA 4553 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2117044
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Meena Sripathy
DATE:18 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 October 2022 at 10:34am
CATCHWORDS
REFUGEE – protection visa – Fiji – sexuality – written application completed by third party – fear of being the victim of theft or robbery – economic hardship – effective state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 25 November 2020 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 visa on 25 January 2018. The decision on the application was made following an interview with the applicant. While the decision record itself indicates a date of 19 November 2020, this is clearly an error as the interview was held on 23 November 2020. The document was uploaded on the Department’s file system on 25 November 2020 and this is likely the correct date the decision was made.
The applicant lodged an application for review to the Tribunal on 7 November 2021. It was not immediately clear what decision this was related to, however a search of Department records indicated that a decision to refuse his application for a protection visa had been made on 25 November 2020 and therefore it was accepted as an application for review of this decision.
For reasons not apparent from Department file documents provided to the Tribunal, the decision to refuse the application was not notified until 30 November 2021, when it was transmitted by email to the applicant.
The Tribunal is satisfied that on 7 November 2021, when the applicant lodged an application with the AAT, he had been refused a Protection visa because of a failure to satisfy s 36(2), being a ‘Part 7-reviewable decision’ under s 411, although he had not been properly notified of that decision as at that date.
On the evidence of the notification and confirmation of email transmission on 30 November 2021, the Tribunal finds that the applicant was properly notified of the decision on 30 November 2021. Notwithstanding that the application for review was lodged prior to the applicant being notified of the decision, the Tribunal considers there is authority that supports that an applicant can lodge a review application prior to being properly notified of the decision.[1] At the hearing the applicant confirmed that he understood that he was seeking review of the decision concerning the protection visa application he had made. Although the review application was not lodged on the approved form, the Tribunal is satisfied in this case there was substantial compliance in that all of the information necessary to meet jurisdiction requirements was present. On this basis the Tribunal is satisfied that it has jurisdiction to review the application.
[1] See for example the approach taken in cases where applicants have lodged applications where the notification was found to be invalid: DFQ17/BMY18
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant’s claims relate to any of the refugee grounds in s5J(1) and was not satisfied that he would face persecution as defined in s5J and was not a refugee as defined in s5H of the Act. The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk he would suffer significant harm as outlined in s36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The issues in this case are whether there is a real chance, if the applicant returns to Fiji, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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
Evidence before the Department
The application form before the Department contains the following information: the applicant was born in [location], Fiji in [year] and is a Fijian national. He speaks, reads and writes English and Hindi and is Hindu by religion. He has never married or been in a de facto relationship. He has a mother and brother who reside in Fiji. He travelled to Australia on a visitor visa, using his own passport, which is valid to 2027. He provided one residential address in [City 1] from birth to date of departure to Australia. In Fiji he worked as a [Occupation 1]. He has a [qualification], completed in 2015. Under reasons for leaving his country, it is claimed the applicant is gay and it is very hard to live in Fiji as a gay person. It is claimed he was mentally traumatised and bullied by people; had stones thrown at him and was called a ‘bad curse’ to the village and his family was bullied. It is claimed he was brutally beaten.
The applicant was interviewed by telephone by the delegate on 23 November 2020. A copy of the audio recording of the interview is included in the Department file and the Tribunal has listened to it. The delegate included details of the information obtained at interview in the decision record. The Tribunal observes that no interpreter was used for the interview and observes that at various times during the interview there was confusion and misunderstandings on the part of the applicant and interviewing officer. At his hearing before the Tribunal the applicant appeared to have no recollection of being interviewed by the delegate. He also denied receiving the Department’s decision.
Evidence before the Tribunal
Hearing 6 September 2022
The Tribunal took oral evidence from the applicant in person at the hearing. The Tribunal was assisted by an interpreter in the Hindi and English languages, by telephone. The applicant was accompanied at the hearing by two people, [Mr A] and [Mr B] who indicated that they were available to give evidence in support. No witnesses had been indicated in the Response to Hearing submitted by the applicant prior to the hearing, and for that reason the Tribunal asked what evidence they proposed to give. [Mr A] indicated that he would provide information about the applicant’s background and character. [Mr B] said he will provide background about LGBTI issues in the applicant’s country and dispute the country information about this issue. The Tribunal asked both individuals to leave the room and it would consider whether it was necessary to take evidence from them following the applicant’s evidence. A summary of the evidence obtained at the hearing follows.
The applicant confirmed he understood he was before the Tribunal in relation to an application for a protection visa. He stated that he did not know the reasons why the application was refused and said he has not seen the decision record. The Tribunal put to him that documents before it indicate it was sent to him by email and he confirmed the email address it was sent to was his own. When asked about the interview he had with the delegate in relation to the application, he said he was not interviewed, even when the Tribunal put to him that it had listened to an audio recording of that interview.
The Tribunal discussed with the applicant the preliminary issue of its jurisdiction that arises because he appears to have made an application for review before he was sent the decision notification. However, as the Tribunal can see that the decision record was notified to him by email and given his appearance at the hearing and knowledge of the application that he seeks review of it the Tribunal accepts that it has jurisdiction for the review, and proceeded to explain the issues it is considering in the review.
The Tribunal asked the applicant about how he came to lodge this visa application. He said he met a person in Melbourne when he was working on a farm, who told him that he could help him to apply for a visa. He asked him for information and documents relating to his qualifications and work experience which he gave to him. The person did not ask him anything else. The applicant said he never saw the application that was lodged and does not know its contents. The person’s name is ‘[Alias]’. He does not know any other information about him. He paid him around $600. The Tribunal asked the applicant what kind of visa he believed he was applying for. The applicant said a work visa.
The Tribunal asked the applicant about his address and address history. He provided an address in [Suburb 1] where he said he has been living for the past 5 years. The applicant then said that he lives at different addresses because he does not have sufficient money to pay rent and so he asks for help from his friends. He referred to living at different places in [Suburb 2], [Suburb 3], [Suburb 4] for weeks at a time. He said he has worked at different places, for a trucking company and a bus company. He works 6-7 days a week but is only paid $400-$500 a week and this is not sufficient to pay rent and living expenses. He is reliant on friends. When asked if someone is arranging his work, he said that he finds work from the internet.
The applicant told the Tribunal he is not in contact with any family members in Australia. In Fiji he has his mother, younger sister and an older brother. His father passed away in 2016 following an accident at work. His father owns a house in [City 1], where the applicant lived all of his life, and where his mother and siblings continue to live now. His mother works in a factory. His sister is studying [Discipline 1] at university and his brother works as a [Occupation 2]. The applicant said initially when he came to Australia he sent money home to his family, but he has not been able to do that since 2018 because he has not earned enough here.
The applicant said that Australia is the only place he has travelled to outside of Fiji. He first came in 2017 to Melbourne for around 6 weeks. Then he returned to Fiji because his visa expired and after a few days he came back. It was after this second arrival in December 2017 he started to work on the farm in Melbourne and that is when he met the person who helped him to lodge this application. When asked why he came to Australia the first time, he said he had a friend there who he knew from his school days. He asked him to visit so he came.
The Tribunal asked the applicant about his education and work background. He said he did not finish high school, but he completed vocational training at a boarding school. He showed the Tribunal his qualification obtained from [School 1], where he attended from 2013 -2015. He completed various courses there including [Course 1]. Following this he worked as a [Occupation 3] for several years before he came to Australia.
The Tribunal asked the applicant why he came to Australia. He said he came to support his mother and siblings. It asked whether there was any reason he was afraid to return to Fiji. He said in Fiji there are people who want to rob you because you are working and they are not. When asked if this ever happened to him he said that the property of his parents was robbed one night. This was sometime in 2016. They stole clothes and a wallet and broke the windscreen of the car. When asked if this incident was reported to police, he said it was but nothing happened after that.
The Tribunal asked if he had another other problems or reasons he cannot return. He said when he worked there he did not earn much money, only 60/week.
The Tribunal explained again to the applicant the criteria for a protection visa that he has applied for and asked if he was fearful of any danger or harm if he returned. He said that he fears harm in Fiji if he goes out at night, for the reasons he said previously.
The Tribunal asked the applicant if he is in a relationship now. He said he is not. He said he has never been in a relationship here or in Fiji. His siblings are both single also.
The Tribunal asked if he is attracted to women. He said he is not. It asked if he is attracted to men, he said he is not.
The Tribunal put to him that his application, which he has told the Tribunal he did not see, makes the claim that he is ‘gay’. It asked if he understood what that means. He responded ‘yes’. When asked to explain what he understands it to mean he said it means you don’t like girls and you like boys. When asked if that reflected him, he said he was not attracted to girls. When asked if he is attracted to boys he responded ‘yes’.
The Tribunal noted that earlier he responded no to that question. He said he is not interested in girls so he is not in a relationship with a girl. When asked if he is interested in anyone else he said no. The Tribunal asked if he has experienced sexual relations with anyone. He said no. It asked if he has any fears of returning to Fiji on this basis, he responded no.
The applicant said the reason he does not want to return to Fiji is because he may get robbed, people can get into your houses and they can kill you.
The Tribunal asked if anything like that has happened to his family members there since he has been here. He said his mother told him they were robbed and people broke the windscreen of the car and broke into their house. They reported it to the police but nothing came of it.
The Tribunal asked if there was any particular reason he believed people did this to them, or for his fear of it. He said his brother works and people believe that he has money.
The Tribunal put to the applicant that the evidence he has given indicates he fears being the victim of theft or robbery which would be considered criminal acts in his country. This could also happen to him here. Such actions are against the law and police generally are available to protect against that. It put to him that a fear of being a general victim of crime does not come within the protection criteria, unless he believes it will happen to him for a particular reason. The Tribunal repeated the specified reasons under the refugee criteria and asked if he believes he will be targeted for reasons of any of these. He repeated that he believes people will think he has money and that is why they will attack him. He said that if he is seen to work, he would be harmed and the Fijian people do not work so they will harm them for that reason.
The applicant confirmed that he follows the Christian religion, because of the school he attended. When asked if he holds any fears because of his religion he said he did not.
Evidence from [Mr A]
The witness said that he knows the applicant personally, having found him on a street, homeless. He took him into his home and he lived with him for some 8 months. The witness said that he understands the applicant is from a poor family and that his father passed away. He felt sorry for him. He is shy, quiet and hardworking and wants to stay here and work. The witness said that he believes a trucking company is willing to sponsor him for a work visa and Australia has a skills shortage. When asked what he knows about the applicant’s current circumstances, the witness said he does not know where he is currently living or where he works.
When asked what he wanted to say in support of the applicant’s visa application, the witness said he can say that the situation for gay people in Fiji is difficult. The Tribunal asked what relevance this has to the applicant. He said he understood that that was what his application was based on. When asked what he knows of the applicant’s sexuality, he said he does not know about that, just that the application said that was what it was about.

In response to the witness’ evidence, the Tribunal questioned the applicant again about the claim relating to sexuality in his application. It asked him how the witness knew about this given he has not made this claim himself. In response the applicant said he may have said this because he has lived in Fiji and so he is aware of the situation for those people. The Tribunal asked again why is it relevant to him. In response the applicant referred to sometimes sleeping on the bus overnight because he is not paid sufficiently and cannot afford rent. In this context he has met these people and also one of his friends and they talk. The Tribunal asked the applicant if he did anything with ‘these people’. He said he never did anything only talked. He confirmed that he has not had any relations or activities with any of these people on the bus. The Tribunal asked again, in the context of the claim made in his application relating to his sexuality, whether there was anything further he wanted to say. The applicant reiterated that the person who lodged the applicant just took his money and asked about his experience and qualifications and that is the basis for the application. He has nothing further to say. When asked why [Mr A] would know about the contents of his application, he said he may have showed it to him.
Given the applicant’s oral evidence to the Tribunal and that he advanced no claim relating to LGBTI issues the Tribunal did not take evidence from the second witness.
FINDINGS AND REASONS
Nationality
On the basis of his Fijian passport, a copy of which the applicant provided at the hearing, the Tribunal accepts the applicant is a national of Fiji and considers Fiji is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.
However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70. The Tribunal takes the above principles into consideration in making its findings below.
In the present case, the claim made in the application form lodged with the Department was that the applicant is gay and suffered trauma, bullying and was beaten because of this in Fiji and fears harm on return on that basis. He confirmed in his interview with the delegate and at his oral hearing before the Tribunal that he did not know the contents of the application form lodged on his behalf. Before the delegate and before the Tribunal he claimed to fear harm in Fiji from unemployed people who would seek to rob him for money or property. He also claimed to fear return because he earned very little money when he was in Fiji.
Claims relating to sexuality
For the following reasons the Tribunal is not satisfied that the applicant is gay. Consequently, it rejects the claims made in the written application regarding past harm suffered on this basis.
Before the Tribunal the applicant confirmed the written application was completed by a person known to him only as [Alias], to whom he provided information about his qualifications and work experience. He said he understood that he was helping him to apply for a visa for work. He said he never saw the contents of the application and was not asked, nor gave, any other information to this person. This is consistent with what he told the delegate at the interview. On the basis of the applicant’s direct oral evidence to the Tribunal and Department, the Tribunal places no weight on the written claims made in the application and has relied on the oral evidence provided by the applicant directly to assess his protection claims.
In his oral evidence to the Tribunal the applicant made no claims of past harm or fear of harm in future on return to Fiji for reasons related to his sexuality. He made no reference to, nor inferred that he had any issues or experiences in his childhood or past in Fiji related to his sexuality or sexual orientation. Nor was there anything that the applicant said to the Tribunal about his background to suggest there were any such issues. He did not mention problems or mistreatment in the past or personal harm experienced on this basis. When the matter of the sexuality claim made in his written application was specifically put to him for comment at hearing he gave confusing and inconsistent responses, first saying that he was not sexually attracted to girls or boys, and then stating that he was attracted to boys. When asked again, he said he is not interested in girls and has not had any relationships with anyone, male or female. When asked if he has any fear of harm for this reason he said he did not.
In his oral evidence to the delegate, this issue also only arose when the delegate put it to him and not before that, and he stated he was not homosexual and not interested in boys/men, although in light of this interview being conducted without an interpreter the Tribunal treats his evidence given there with some caution.
The applicant was given numerous opportunities during the hearing to provide information about any issues he had in Fiji or here concerning or arising from the matter of his actual or imputed sexuality or sexual orientation but he did not. The Tribunal was conscious not to ask too many questions of a leading and suggestive nature in the circumstances that the applicant was not advancing the claim himself. It has considered the possibility of whether a sexuality claim is capable of arising from the evidence about his background and circumstances but finds there is no basis for such a conclusion. The Tribunal notes the applicant did not take up any of the multiple opportunities provided during the hearing to comment on the fact that his written application contained this claim. The Tribunal has also taken into consideration the evidence of the witness and finds that his reference to the applicant’s sexuality arose solely from his understanding that this was the claim made in his visa application. The witness offered no other information or personal observation that would support a claim that the applicant was gay. In response to the witness’ evidence the applicant was provided a further opportunity to address this claim but the Tribunal is not satisfied anything he said in response amounts to raising such a claim. At the conclusion of the hearing the applicant reiterated that he only wanted a visa to work here and that is why he applied for this visa.
For these reasons, the Tribunal is not satisfied on the evidence that the applicant is homosexual or had any past experience of harm or ill treatment in Fiji and does not accept that he has a subjective fear of harm on this basis if returned to Fiji in future.
Therefore the Tribunal is not satisfied that the applicant has a well founded fear of persecution on the basis of his sexuality if returned to Fiji in the reasonably foreseeable future.
Fear of harm from crime, economic hardship including under employment
The applicant’s evidence to the Tribunal was that he came to Australia to work so that he could support his mother and siblings. On the basis of his evidence about his family and education background, the Tribunal accepts his father passed away and as the eldest son in the family he would feel responsibility to support his family. It accepts that he was educated at [School 1], being a residential vocation training school for disadvantaged youth.[2] The applicant articulated his claims as fear of being robbed by people who do not work. The applicant repeated this several times during the hearing when asked about the basis for his fears of returning to Fiji. He also referred to the low income he received in Fiji and difficulty to support himself and his family. He told the Tribunal his family home had been robbed previously and spoke of an incident in 2016 where clothes and a wallet were taken and the car windscreen was broken. They filed a report with police but nothing else happened. The Tribunal observes the applicant made similar claims in his oral evidence at the department interview.
[2] [Source deleted]
The Tribunal is prepared to accept as credible and plausible that the applicant’s motivations for coming to Australia were economic in nature. He gave these responses to the Tribunal spontaneously, without hesitation and his evidence was consistent with what he told the delegate at interview. It accepts as plausible and credible that he may have experienced a home robbery in the past and holds subjective fears for his safety from general crime of that nature as a result of that experience.
In considering these claims, the Tribunal has taken into account information about the general economic and security situation in Fiji. According to the most recent DFAT Country Information Report, Fiji is considered by the World Bank as an upper middle income country and it is one of the largest economies in the Pacific region. The report notes that tourism accounted for about 40 per cent of the pre-COVID-19 economy and the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones[3].
[3] DFAT Country Information Report 20 May 2022, paragraph 2.7-2.8
Regarding employment and welfare, the DFAT Report states that most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption. The minimum wage is currently FJD2.68 (about AUD1.75) per hour and though there are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. The 2021 US Department of State Human Rights Report for Fiji, states that the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.[4]
[4] Ibid, paragraph 2.18-2.19
In light of this information the Tribunal accepts the applicant, given his background of limited financial means and the responsibility he feels to support his mother and siblings, has genuine concerns about his economic security upon return to Fiji in future. It observes from his evidence about his employment and living circumstances in Australia, that his experiences and situation here also appears to be, and has been, vulnerable and insecure. The issue before the Tribunal in this review however is whether he faces a real chance of serious harm for a specified reason, or a real risk of significant harm upon return to Fiji and in respect of this the Tribunal is not satisfied a fear of unemployment or under employment or financial hardship of itself amounts to serious harm within the meaning of the term in s5J(5). Specifically there is no evidence before the Tribunal to suggest the applicant will be denied capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist, or that any such harm he fears of this nature is for a reason specified in s5J(1). In this regard the Tribunal notes that the applicant did not claim to fear economic hardship or difficulty to obtain adequate employment for reasons of his ethnicity or religion and the Tribunal is not satisfied the evidence supports such a conclusion.
Regarding the applicant’s fear of harm from general crimes of robbery and theft, there is no evidence before the Tribunal to indicate that the applicant will be targeted for such crime for for any of the reasons specified in s5J(1). The Tribunal takes into consideration that Fiji has a national police force that covers the whole country, that has been assessed by the US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report as ‘professional’ and having recent improvements in training and accountability. That report observed that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assessed that ‘victims of crime can expect fair treatment with dignity’.[5] On this evidence, the Tribunal finds that the applicant has available effective protection within the meaning of that term in s5LA. There is no evidence to suggest that the applicant will be denied protection or assistance from the authorities should he require it.
[5] DFAT Country Information Report 20 May 2022, paragraph 5.6
The Tribunal has considered the applicants claims individually and cumulatively and is not satisfied that the applicant has a well-founded fear of persecution if returned to Fiji now or in the reasonably foreseeable future.
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 has considered whether 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 he will suffer significant harm as defined in s36(2A) of the Act.
Having regard to the findings made above regarding the applicant’s circumstances and past experiences in Fiji, the Tribunal is not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Fiji. The Tribunal has considered the applicant’s claims that he fears economic insecurity and not being able to earn sufficient income to support his family However, it finds that financial hardship or unemployment as feared by the applicant is not ‘significant harm’ for the purposes of this criteria and therefore, while sympathetic to his concerns for his economic prospects and future there, it is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm on this basis, if he is returned to Fiji.
The Tribunal has considered the independent information referred to above about the security and economic situation generally in Fiji. In respect of the applicant’s claim of fear of harm from general crime, the Tribunal considers that to the extent that any risk the applicant faces of significant harm as a victim of generalised crime, including robbery and theft, is one faced by the population of the country generally and is not faced by him personally and on that basis there is taken not to be a real risk of significant harm in respect of him under s36(2B) of the Act.
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.
Meena Sripathy
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.
…

[2022] AATA 4553

18 October 2022

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Immigration

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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