2206878 (Refugee)

2206878 (Refugee) [2024] AATA 1744 (20 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2206878

COUNTRY OF REFERENCE: Fiji
MEMBER:Sophia Ziebell-Barnes
DATE:20 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2024 at 10:27am
CATCHWORDS
REFUGEE – protection visa – Fiji – concerns about the COVID19 pandemic – travel restrictions – fear of infecting family in Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
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 9 May 2022 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 8 April 2020. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 15 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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 review is whether there is a real chance that, if he returns to Fiji, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2) of the Act 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 purpose of s 36(2)(aa) of the Act.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant arrived in Australia [in] February 2020 on [a temporary] visa using an apparently genuine Fijian passport, a copy of which is contained in the Departmental file. He has at all times stated that he is a citizen of Fiji, and his application was assessed by the Department on that basis.
The Tribunal accepts on the evidence before it that the applicant is a Fijian citizen and his claims have been assessed against Fiji as the country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old married Christian male born in Suva, Rewa, Fjij. At hearing the applicant gave evidence that he has [number] children. The applicant also gave evidence [about his family members]. The applicant stated that his wife, children, siblings and parents all live in Fiji. The applicant attended the [named] school before completing a certificate at [College 1] in [specified year].
The applicant stated in his evidence before the Tribunal that prior to coming to Australia he ran his own [business 1] in Fiji. The applicant stated that he currently works as a farmhand at [a named employer].
The Tribunal accepts the above matters to be true.
The applicant’s claim for protection before the Department
The applicant submitted his application for a protection visa on 8 April 2020. In essence, the applicant claimed that:
a.He came to Australia to visit relatives in Australia and was unable to return to Fiji due to Corona Virus restrictions.
b.He was concerned that he and his family would be infected.
c.He did not experience harm in Fiji.
The delegate did not interview the applicant, but ultimately refused the application for a protection visa, not being satisfied that the applicant’s claims regarding Covid-19 (Covid) related to one of the reasons outlined in s 5J(1)(a) of the Act. Accordingly, the delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act or that Australia owed the applicant protection under s 36(2)(a) of the Act.
The delegate also considered the applicant’s claims under the complementary protection criteria. The delegate was not satisfied that as a necessary and foreseeable consequence of being returned to Fiji there was a real risk that the applicant would suffer significant harm and accordingly found that the applicant was not a person in respect of whom Australia had complementary protection obligations under s 36(2)(aa) of the Act.
The applicant’s claim for protection before the Tribunal
Pre-hearing information
In a pre-hearing information form lodged with the Tribunal on 11 January 2024, the applicant stated that:
a.If his application for a protection visa is not granted, he asks that he be allowed to stay in Australia until 1 December 2024.
The applicant also submitted a response to the hearing invitation form on 19 January 2024.
The Tribunal hearing
At hearing the applicant gave evidence that he first visited Australia for six weeks in September 2019 to look at buying [equipment] for his [business]. The applicant returned to Australia [in] February 2020 to purchase the engine[equipment]. Whilst in Australia, the Covid pandemic commenced, the airport was closed and he could not return to Fiji.
The applicant confirmed in his evidence that he still does not wish to return to Fiji for Covid-related reasons. The applicant stated that he fears returning to Fiji as he fears becoming infected, does not want to die young, has financial responsibilities and wants to continue his family line.
At hearing the applicant gave evidence that he has not previously been infected with Covid, that he has been vaccinated four times and that he has no health or other vulnerabilities in terms of Covid infection. The applicant stated that if he took the sickness to Fiji it would be a big problem for his family. The applicant further stated that his wife has been vaccinated three times and has caught Covid twice. The applicant’s children have not been vaccinated and have not caught Covid.
When asked if there was any other reason why he feared returning to Fiji, the applicant said that he would like to have time to pay off his $2,000 [debt] in Australia before he leaves.
When asked if there was anything else he thought might happen if he returned to Fiji, the applicant said that there was nothing else.
Consideration
On the available evidence, the Tribunal finds the applicant to be an honest and credible witness and accepts the evidence provided by the applicant to be true.
The Tribunal accepts that the applicant wishes to remain in Australia and fears catching Covid and dying. The Tribunal accepts that the applicant may catch Covid if he returns to Fiji, just as he may catch Covid should he remain in Australia. However as discussed with the applicant at hearing the country information indicates that healthcare is generally available for those who need it in Fiji. Other available country information discussed at hearing advises that the Covid pandemic significantly impacted the health of Fijians and the health care system, particularly during surges of community transmission in 2021 and 2022. The resulting outbreak led to national lockdowns, spikes in hospitalisations and deaths from Covid. However, as of June 2022 – 95% of adults (586,000) had received at least two doses of the Covid vaccination and hospitalisations and deaths had declined significantly.[1]
[1] Australian Aid, The Australian Government’s Fiji Program Support Facility, Program Design Update, June 2022
The applicant agreed with the Tribunal’s assessment that much of the fear surrounding Covid has subsided since the applicant submitted his application for a protection visa in 2020.
For these reasons, and given the applicant’s reported immunisation history and good health, the Tribunal does not accept that if he returns to Fiji the applicant faces a real chance of serious harm in the sense of a threat to the applicant’s life and as non-exhaustively defined in s 5J(5) of the Act. The Tribunal notes that a real chance was described by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[2] There is no evidence before the Tribunal to suggest that there is more than a remote or far-fetched chance that the fully immunised [age] year old applicant who denied any Covid-related vulnerabilities would experience serious harm if he caught Covid as a result of being returned to Fiji. Accordingly, the Tribunal finds that the applicant does not meet the criteria of a refugee as set out in s 5H of the Act.
Complementary Protection
[2] Chan v MIEA (1989) 169 CLR 379 at 389, 406–7, 396–8, 428–9. Note that Gaudron J did not adopt the ‘real chance’ test.
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), I have 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. ‘Significant harm’ is exhaustively defined in s 36(2A) as follows:
(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.
As discussed with the applicant at hearing, Australian courts have held that complementary protection obligations are concerned with intentional acts or omissions by third persons[3] and that the applicant’s fears of catching or transmitting Covid in Fiji may not enliven Australia’s protection obligations.
[3] GLD18 v MHA [2020] FCAFC 2
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] For the same reasons the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm by any person or group as a necessary and foreseeable consequence of being removed from Australia to Fiji.
[4] MIAC v SZQRB [2013] FCAFC 33 at [246], [297], [342].
For these reasons the Tribunal does not accept that any harm to which the applicant may be subjected if returned to Fiji would meet the definition of ‘significant harm’, as defined in s 36(2A).
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.
Sophia Ziebell-Barnes
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.
…

[2024] AATA 1744

20 February 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction