2207457 (Refugee) - [2025] ARTA 816

2207457 (REFUGEE) [2025] ARTA 816 (13 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2207457

Tribunal:General Member Rosa Gagliardi
Date:13 February 2025

Place:Australian Capital Territory
Decision:The Tribunal affirms the decision under review.

Statement made on 13 February 2025 at 3:35pm
CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions – arrest – assault by police – child in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 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 national of Fiji, a matter the Tribunal accepts, applied for the visa on 18 February 2021. The delegate refused to grant the visa on the basis that the applicant had not particularised his claims and further details were required for an assessment of the case.
The applicant appeared before the Tribunal on 20 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
Evidence before the Department
In his application the applicant wrote that he was targeted by the police and military and was falsely accused of ‘something’ he did not do. He was taken in for questioning and punched him to force a confession but the applicant could not give them what they wanted because he did not know what they were accusing him of. He was threatened ever since. He moved his then wife and child for their safety. Two of his friends were also subjected to harm by police and military, and one died as a result. The applicant further claimed that the police and military take their orders from the Prime Minister and commit atrocities against innocent citizens like the applicant. The police and the military are, according to the written application, the worst forces in the South Pacific.
Evidence before the Tribunal
No additional material has been submitted to the Tribunal.
The hearing
The applicant was born in Suva in Fiji. His parents were still alive and worked as subsistence farmers. The applicant also had [specified] siblings who lived in the village and worked as subsistence farmers or in the fishing industry.
The applicant stated that he went to [University] and studied and completed studies in [subjects] and worked in that field for about [number] years in Fiji. The applicant stated he arrived in Australia in January 2020 on a on a three-year labour scheme contract. The applicant stated he was not able to complete the contract because he had assaulted/slapped a fellow worker.
After that the applicant stated he worked for [a business 1], but his visa had been cancelled. He saw someone who was helping people with their visas and unfortunately, he was not able to see that gentleman or to contact him further.
The Tribunal asked whether the applicant had his own family in Fiji, and he stated he had a child. He had separated from the child’s mother.
After his visa was cancelled the applicant explained he had been referred to a person he paid $AUD2000 to, who had advised him he would assist him with obtaining another visa. The applicant stated he did not know whether he was unlawful at any period. That is why he sought assistance. After working for the [business 1], the applicant stated he [worked] on a farm. The applicant stated that he also had a daughter in [City 1], Australia. She was [age]. He stated he was not in a relationship with the mother of his child any longer, but she was an Australian citizen. He was also paying child support for the child.
The Tribunal asked whether he knew what was in his protection application and he responded he did not. He had been assured this person was well versed in migration matters and he filled in the application form for the applicant. The Tribunal confirmed with the applicant whether the written claims were false. The applicant stated they were.
The Tribunal told the applicant what had been written in his application for his reference and in the event that any of the claims might relate to the applicant’s circumstances.
The Tribunal asked the applicant what his true claims were if these were not correct. The applicant stated that he wanted to apply for an alternative visa. It was not his intention to apply for the protection visa given what he had just heard. The Tribunal confirmed that the man who had assisted him with his application took his money and simply wrote what he wanted. The applicant nodded.
The Tribunal asked the applicant even if these matters were not true was there any reason at all he feared returning to Fiji. The applicant responded it was not as though he did not want to return to Fiji, but he wanted a visa that would lawfully permit him to remain here to continue with the work he was doing. The applicant also stated that he had a daughter and wanted to be there for her as he considered he had obligations towards her.
The Tribunal gave the applicant the details of Legal Aid in Sydney so that he could explore his visa options given he has an Australian citizen child.
The Tribunal received a “dob-in” email from an external source. The Tribunal handles such communications with caution. Someone may have a vindictive agenda towards an applicant. The Tribunal accepts that some dob-in information is not conveyed because persons are motivated by a sense of altruism but may wish to cruel an applicant’s chances for residency in Australia. It is through this prism of scepticism that the Tribunal views such material. In any event, the Tribunal made the allegations available to the applicant, in writing, in the interests of natural justice. The essence of the information is that that the applicant:
·Avoided making tax payments;
·Did not pay child support;
·Had a history of family violence; and
·Was known to have asked women to partake in a Partner visa scheme to remain in Australia.
·The applicant was safe to return to Fiji.
The Tribunal explained that the information was relevant because it may show the applicant had a strong intention to remain in Australia, even via a false Partner visa application or a Protection visa application and that he did not, therefore, have a well-founded fear of persecution on return to Fiji. If the Tribunal relied on this information it would find the applicant was not acting in good faith with the migration system in Australia and that he was prepared to act unlawfully, including fabricating claims for protection to remain in Australia and did not meet cl.36(2)(a) or cl.36(2)(aa) as the applicant was simply searching for a migration outcome.
The applicant was asked to provide a response by 11 February 2025 but has not done so at time of writing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the refugee criteria under s.36(2)(a) or alternatively meets the criteria under s.36(2)(aa).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
The dob-in correspondence
The applicant was frank at hearing that he wanted to remain in Australia because he had a daughter here. He was also transparent about the fact that the claims in his application had not been written by him and that he was not pursuing such claims. The Tribunal accepts that the first time the applicant had heard about the claims written in his application was at the time of hearing. The applicant was also frank in stating he wanted to continue to stay in Australia as he wanted to work here and was looking for legitimate pathways. Considering the applicant’s candid approach to the hearing the Tribunal places no weight on the content of the dob-in-information which is not substantiated and raises issues outside the remit of this review. This is particularly so as the allegations could have been made with mischief in mind.
s.36(2)(a)
Because the applicant at hearing resiled from his written claims and gave no indication that he feared any type of harm on return to Fiji now or in the reasonably foreseeable future, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Fiji as his purpose in Australia is to work and be able to see his daughter. The applicant has not claimed that he fears persecution on return to Fiji now or in the reasonably foreseeable future on account of his race, religion, nationality, membership of a particular social group, or political or imputed political opinion s.5(J)(1).
The Tribunal does not have any evidence before it that the State of Fiji, any of its instrumentalities or any State or non-State actors would target the applicant for serious harm on return to Fiji on account of any characteristics particular to him, for reasons under s.5(J)(1), of for any other reason. The applicant has obtained qualifications in Fiji and has been able to make a living here and the Tribunal cannot see why he would not be able to do so on return to Fiji such that he can subsist and support his family.
The applicant therefore does not have a subjective or objective fear of persecution.
The Tribunal accepts the applicant’s evidence at hearing that he did not prepare his application and that the claims therein were not genuine as they were prepared by another party who he thought would assist him legitimately regularise his status in Australia, without resorting to unfounded protection claims.
The Tribunal has referred the applicant to Legal Aid to seek reputable advice about his options from here on.
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).
Does the applicant satisfy the complementary protection criterion for protection?
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 it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Fiji, there is a real risk that the applicant will suffer significant harm. The Tribunal has had regards to the applicant’s claims, as above, regarding complementary protection, but the applicant has not established any claims relating to s.36(2)(a). The Tribunal is not satisfied that the applicant has established that he will suffer serious harm for any reasons under s.5(J)(1)(a) of the Act or for any other reason.
For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm from the State, its instrumentalities, or any other State or non-State actors were he to return to Fiji now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, 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 definition. Having found above that the Tribunal is not satisfied that there is a real chance that the applicant will face persecution for any reason, it follows that 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 the applicant will suffer significant harm. Accordingly, the Tribunal does not accept that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture; or that he will be subjected to cruel or inhuman treatment or punishment; or that the applicant will be subjected to degrading treatment or punishment for any reason.
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, however, 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.
Representative: Livai Leone
Hearing: 20 December 2024
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.
…