2207655 (Refugee) - [2024] AATA 2177

2207655 (Refugee) [2024] AATA 2177 (28 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2207655

COUNTRY OF REFERENCE: Fiji
MEMBER:James Horsley
DATE:28 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal makes a recommendation for Ministerial intervention pursuant to s 417 of the Migration Act 1958 (Cth)

Statement made on 28 March 2024 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinion – advocating for indigenous rights – wrongful detention – change of government – delay in applying for protection – access to Australian citizen children – period of unlawful residence – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 14, 36, 65, 415, 417, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FMCA 78
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

The applicant claims to be [an age]-year-old Fijian national of iTaukei ethnicity and Christian faith. He left Fiji [in] December 2017 from Nadi International Airport, arriving in Australia on the same day on a Visitor visa (Subclass 600).
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, they are 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2207655 (Refugee)

Details

AGLC: 2207655 (Refugee) [2024] AATA 2177
Case: [2024] AATA 2177
Decision Date: 28 March 2024

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, a Fijian national of indigenous iTaukei ethnicity, a Protection visa. The applicant arrived in Australia in December 2017 on a Visitor visa and subsequently applied for a Protection visa in March 2021, citing fears of harm from Fijian authorities, including the military and police. These fears stemmed from a wrongful detention in October 2014 on false allegations of inciting violence during the 2014 general election, during which he and his family voted for the SODELPA party. The delegate accepted the detention and voting claims but found the applicant had lived a normal life post-detention and had departed Fiji without issue, concluding he did not face a real chance of serious harm due to his political opinion. The Administrative Appeals Tribunal (the Tribunal) reviewed this decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) as a refugee, or under section 36(2)(aa) of the Act for complementary protection. This required the Tribunal to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, the applicant would suffer significant harm due to his race, political opinion, or membership of a particular social group. The Tribunal also considered the applicant's claims regarding potential harm if the 'Police Bill' passed, which he believed would turn Fiji into a police state where indigenous Fijians would not be spared.

The Tribunal considered the applicant's evidence, including his detention in 2014 and his political leanings. It noted that the delegate had accepted the factual basis of the detention and the applicant's voting history. However, the Tribunal found that the delegate erred in concluding that the applicant's subsequent ability to live a normal life and depart Fiji without issue negated a real risk of harm. The Tribunal reasoned that the political climate in Fiji had evolved since 2014, and the applicant's past detention and his indigenous iTaukei ethnicity, coupled with concerns about the 'Police Bill', could place him at risk. The Tribunal also considered the applicant's ties to Australia through his two Australian citizen children.

The Tribunal set aside the delegate's decision and remitted the application to the delegate for reconsideration according to law, with directions to consider the applicant's claims afresh, including the risk of harm based on his race and political opinion in light of the current country information and the potential impact of the 'Police Bill'.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Below is a summary of the applicant’s oral evidence during the Tribunal hearing.Background The applicant is [an age]-year-old Fijian national of indigenous iTaukei ethnicity and Christian (Catholic) faith. He was born and raised in Suva, Fiji. After completing high school, he began a degree in [subject 1]. He completed [part] of the degree, before stopping his studies to travel to Australia. From when he was around [age range] years old, the applicant worked as [an occupation 1] in Suva, Fiji. He has not worked in Australia and has been relying on the financial support of his former partner, who he separated from in 2023. The applicant’s father is a retired [Agency 1] officer, having reached the [position] of [Level 1 manager]. His mother is a homemaker. Both reside together in Suva, Fiji. The applicant has [specified siblings], who also reside in Suva, Fiji. [Specified siblings] work in [businesses] in Fiji. His other [siblings] do not work and reside with his parents. The applicant speaks with his family members in Fiji every weekend. [In] 2016, the applicant issued his passport in Fiji, without experiencing any problems. [In] December 2017, he left Fiji from Nadi International Airport, arriving in Australia on the same day on a Visitor visa. After his arrival in Australia, the applicant lived for a few weeks with his daughter and her mother (the applicant’s ex-wife, who is an Australian and Fijian dual national). However, soon thereafter, they separated, and the applicant moved to regional Victoria. There, the applicant met the future mother (an Australian national) of his son, and they remained in a relationship until 2023. She has children from another relationship. In [specified year], she gave birth to the applicant’s son. In summary, the applicant has a son and daughter to two Australian women. Both of his children reside in Victoria, and both are dual Australian and Fijian nationals. The applicant sees his daughter about twice per year, while he sees his son every day. From December 2017 to March 2021, the applicant took care of his son and his partner’s children. He has not worked since his arrival in Australia and has been financially supported by his ex-partner (mother of his son). Protection visa application In March 2021, the applicant was introduced through a mutual friend to [Pastor A], who offered to assist the applicant with lodging a Protection visa application for a fee of over $1,000 (AUD). The applicant applied for a Protection visa because he wanted to remain in Australia to be with his son. The applicant provided background information about himself to [Pastor A] and told him the reasons why he left Fiji and why he wanted to remain in Australia. However, [Pastor A] wrote many things in the form that were not true, and that the applicant did not understand or agree with. The applicant did not read the Protection visa application form or [Pastor A’s] responses before he signed the form. The following is a summary of the applicant’s evidence during the Tribunal hearing regarding his claims for protection. Political opinion

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE BEFORE THE DELEGATEProtection visa application On 12 March 2021, the applicant applied for a Protection visa. In his Protection visa application, the applicant stated he was married to a dual Fijian and Australia citizen, and they had a daughter together in Fiji. He arrived in Australia on a Visitor Visa and had intended to apply for a Partner visa upon arrival in Australia. However, the applicant and his wife separated, and he was unable to do so. The applicant applied for a Protection visa because he fears harm from the Fijian authorities, including the military and police, on the basis of being wrongfully detained on [a day in] October 2014. He was around [age range] years old at the time, and the Fijian Police Force detained the applicant at the [Police Station 1] on false allegations that he incited violence during the 2014 general election. The police released him without charge. He and his family voted for SODELPA [Social Democratic Liberal Party] in the 2014 general election. [Former Prime Minister] Bainimarama installed military men in most key positions in government and rigged the 2014 general election. The applicant did not relocate within Fiji, as there was no safe place. He previously lived close to a Military Camp, and fears harm from the authorities, so relocation is not an option for him in future. The applicant also stated if the ‘Police Bill’ passes parliament, Fiji will be a totally different country under the military and it will become a police state, where the iTaukei will not be spared. He witnessed police going to iTaukei villages to arrest their suspects, and most of the time they were tortured without being found guilty. He is unable to return to Fiji because he has two children that he needs to care for and contribute to their education. In support of his Protection visa application, the applicant provided a certified copy of his Fijian passport. Decision of the delegate On 10 May 2022, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate did not offer the applicant an interview. In essence, the delegate accepted the applicant’s claims that the police detained him on accusations of inciting violence during the 2014 general election, and that he was released without charge. The delegate also accepted that the applicant voted for SODELPA during the election. However, the delegate found that the applicant lived a normal life following his detention, as he continued to attend school and his workplace up until his departure from Fiji.

Decision

Reasons for decision

In support of his Protection visa application, the applicant provided a certified copy of his Fijian passport. Decision of the delegate On 10 May 2022, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate did not offer the applicant an interview. In essence, the delegate accepted the applicant’s claims that the police detained him on accusations of inciting violence during the 2014 general election, and that he was released without charge. The delegate also accepted that the applicant voted for SODELPA during the election. However, the delegate found that the applicant lived a normal life following his detention, as he continued to attend school and his workplace up until his departure from Fiji. The delegate found that the applicant was able to leave from Nadi International Airport, without experiencing any problems. These factors led the delegate to find that while applicant holds a private political opinions against the Fijian government, he does not have any profile of adverse interest to the Fijian authorities for his detention in 2014, political opinion, or for any other reason. The delegate found that it was likely that the applicant will continue to keep his political opinion private, as he has done in Australia, and that he would be able to access protection from the police on the basis of his actual or imputed political opinion as a previous detainee. For those reasons, the delegate was not satisfied that the applicant faces a real chance of serious harm upon return to Fiji due to his political opinion. Accordingly, the delegate found that the applicant did not meet the criteria in s 5H(1) of the Act and is not a refugee or a person to whom Australia owes protection obligations as per s 36(2)(a) of the Act. For the reasons above, the delegate found there is not a real risk of the applicant suffering significant harm because of his political opinion as outlined in s 36(2)(aa) of the Act. On 24 May 2022, the applicant applied for a review of the delegate’s decision. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).CLAIMS AND EVIDENCE BEFORE THE TRIBUNALProcedural history On 26 February 2024, the applicant appeared before the Tribunal (via video) to give evidence and present arguments. In submitting his application for review, the applicant did not request an interpreter. As such, an interpreter was not present during the Tribunal hearing. At the outset of the hearing, the applicant confirmed that he did not require an interpreter. The hearing was conducted in the English and there were no indications that the applicant did not understand any of the Tribunal’s questions or that speaking in English hindered his ability to answer those questions. Below is a summary of the applicant’s oral evidence during the Tribunal hearing.Background The applicant is [an age]-year-old Fijian national of indigenous iTaukei ethnicity and Christian (Catholic) faith. He was born and raised in Suva, Fiji.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCE BEFORE THE DELEGATEProtection visa application On 12 March 2021, the applicant applied for a Protection visa. In his Protection visa application, the applicant stated he was married to a dual Fijian and Australia citizen, and they had a daughter together in Fiji. He arrived in Australia on a Visitor Visa and had intended to apply for a Partner visa upon arrival in Australia. However, the applicant and his wife separated, and he was unable to do so. The applicant applied for a Protection visa because he fears harm from the Fijian authorities, including the military and police, on the basis of being wrongfully detained on [a day in] October 2014. He was around [age range] years old at the time, and the Fijian Police Force detained the applicant at the [Police Station 1] on false allegations that he incited violence during the 2014 general election. The police released him without charge. He and his family voted for SODELPA [Social Democratic Liberal Party] in the 2014 general election. [Former Prime Minister] Bainimarama installed military men in most key positions in government and rigged the 2014 general election. The applicant did not relocate within Fiji, as there was no safe place. He previously lived close to a Military Camp, and fears harm from the authorities, so relocation is not an option for him in future. The applicant also stated if the ‘Police Bill’ passes parliament, Fiji will be a totally different country under the military and it will become a police state, where the iTaukei will not be spared. He witnessed police going to iTaukei villages to arrest their suspects, and most of the time they were tortured without being found guilty. He is unable to return to Fiji because he has two children that he needs to care for and contribute to their education.