2300774 (Refugee) - [2024] AATA 2651

2300774 (Refugee) [2024] AATA 2651 (26 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2300774
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Adrienne Anderson
DATE:26 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 26 March 2024 at 10:49am
CATCHWORDS
REFUGEE – protection visa – Fiji – family violence – physical abuse from the father – gender-based violence directed against the mother – parents divorced – threatened with weapons – stalking – made threats to kill – threats of suicide – alcohol abuse – particular social group – family – effective state protection – restraining order – suspended sentence – complementary protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 19 January 2023 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 26 August 2022.
The applicant appeared before the Tribunal on 14 March 2024 to give evidence and present arguments. The hearing was conducted via videoconference at the applicant’s request due to difficulties travelling to attend an in-person hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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…

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 2300774 (Refugee)

Details

AGLC: 2300774 (Refugee) [2024] AATA 2651
Case: [2024] AATA 2651
Decision Date: 26 March 2024

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicant, an Indo-Fijian male, claimed he feared returning to Fiji due to his father's history of alcohol abuse, violence towards his mother, and physical abuse and threats directed at him. The delegate had refused the visa based on the applicant's claims of financial difficulty, which were not considered sufficient for a protection visa.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as a refugee, or alternatively, under section 36(2)(aa) as a person facing a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The Tribunal was required to consider the applicant's claims of family violence, the effectiveness of state protection in Fiji, and the possibility of internal relocation.

The Tribunal considered the applicant's evidence of his father's violent and abusive behaviour, including threats with weapons and verbal abuse, stemming from alcohol abuse. It noted that while the applicant's mother had previously sought police intervention, she had ceased doing so to protect the applicant's schooling and the family's financial stability. The Tribunal found that the applicant did not meet the refugee criterion under s 36(2)(a). However, it determined that the applicant satisfied the complementary protection criterion under s 36(2)(aa), finding substantial grounds to believe that as a necessary and foreseeable consequence of removal to Fiji, there was a real risk the applicant would suffer significant harm. The Tribunal also considered and dismissed the application of s 36(3) regarding the availability of third country protection.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the *Migration Act 1958*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCEApplicant’s background The applicant is a [age]-year-old Indo-Fijian male from [City 1], Fiji. He is an only child. His mother resides in Australia with the applicant and his father, from whom he is estranged, resides in Fiji. The applicant completed high school in Fiji up to year [level] and in Australia is studying and working as an [Occupation 1]. The applicant has visited Australia on two previous occasions (in 2017 and 2019) to spend time with extended family. He arrived in Australia on a Tourist visa [in] June 2022 and made a protection visa application on 26 August 2022. Applicant’s claims for protection Before the Department In his protection visa application, the applicant stated that he came to Australia to visit his mother but decided to stay because he missed her and is lonely in Fiji without his mother around. The applicant stated that after the Covid-19 pandemic life in Fiji has changed and the cost of living has risen. The applicant stated that if given an opportunity here the applicant would be able to survive and support his mother who was a victim of family violence in Fiji from the applicant’s father. The applicant was not interviewed by the delegate. The delegate refused to grant the visa on 19 January 2023 on the basis that the applicant’s claims that he would experience financial difficulty did not meet the criteria for the grant of a protection visa. The applicant lodged an application for review of the decision on 22 January 2023. Before the Tribunal At hearing, the applicant provided further information on the claim in his protection visa application that his mother had experienced abuse at the hands of his father in Fiji. He stated that his mother suffered through beatings and threats to kill her and that his father became physically violent towards the applicant when he turned 15 or 16. At that time, he started beating him, smashing things around the house, and threatening the applicant with knives. He stated that his father was an alcoholic who became violent and angry when he was drunk. He often had affairs and was violent towards the applicant’s mother when she confronted him about this as well as other occasions when things made him angry around the house. He was often verbally abusive to the applicant when he forgot to turn lights off or other minor occurrences. He said things to the applicant like he was useless and should never have been born. The applicant’s mother had gone to the police about the violence before. The police would come to the house and try to settle things down between the applicant and his mother. His mother would ask that the applicant’s father not be arrested because she wanted the applicant to be able to continue his schooling and the applicant’s father was the primary earner for the family. Eventually, the applicant’s mother kept quiet and stopped going to the police.

Decision

Reasons for decision

Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has taken all possible steps to avail themselves of a right to enter and reside a third country. In this case, there is no evidence to suggest that the applicants have any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.Adrienne AndersonMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CLAIMS AND EVIDENCEApplicant’s background The applicant is a [age]-year-old Indo-Fijian male from [City 1], Fiji. He is an only child. His mother resides in Australia with the applicant and his father, from whom he is estranged, resides in Fiji. The applicant completed high school in Fiji up to year [level] and in Australia is studying and working as an [Occupation 1]. The applicant has visited Australia on two previous occasions (in 2017 and 2019) to spend time with extended family. He arrived in Australia on a Tourist visa [in] June 2022 and made a protection visa application on 26 August 2022. Applicant’s claims for protection Before the Department In his protection visa application, the applicant stated that he came to Australia to visit his mother but decided to stay because he missed her and is lonely in Fiji without his mother around. The applicant stated that after the Covid-19 pandemic life in Fiji has changed and the cost of living has risen. The applicant stated that if given an opportunity here the applicant would be able to survive and support his mother who was a victim of family violence in Fiji from the applicant’s father. The applicant was not interviewed by the delegate. The delegate refused to grant the visa on 19 January 2023 on the basis that the applicant’s claims that he would experience financial difficulty did not meet the criteria for the grant of a protection visa. The applicant lodged an application for review of the decision on 22 January 2023. Before the Tribunal At hearing, the applicant provided further information on the claim in his protection visa application that his mother had experienced abuse at the hands of his father in Fiji. He stated that his mother suffered through beatings and threats to kill her and that his father became physically violent towards the applicant when he turned 15 or 16. At that time, he started beating him, smashing things around the house, and threatening the applicant with knives.