2307088 (Refugee) - [2024] ARTA 814

2307088 (Refugee) [2024] ARTA 814 (6 December 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Parth Kaushikkumar Brahmbhatt
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2307088
Tribunal:General Member R Lee
Date:6 December 2024

Place:Perth
Decision:The Tribunal affirms the decisions under review.

Statement made on 06 December 2024 at 2:04pm
CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit and Family Court remittal – political instability, corruption, economic conditions and general crime and violence – sexual assaults and psychological and emotional harm – first assault not included in visa application – reasonable explanation and no adverse inference – no political activity – multiple departures and returns for job – country information – election and change of government with no significant political unrest – risks faced by population generally – members of family unit husband and children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), (b), (c), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1992) 34 ALD 347
SZSPT v MIBP [2014] FCA 1245
SZTEQ v MIBP [2015] FCAFC 39
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 14 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant is the primary visa applicant (PVA). The second-named applicant is the PVA’s husband (husband).[1] The remaining applicants are their children, aged [Ages] respectively.[2]
[1] Fijian Marriage Certificate – [November] 2007.
[2] Three Fijian Birth Certificates and one Western Australian Birth Certificate.
The husband arrived in Australia first [in] November 2011, arriving and departing multiple times over the years. The husband last arrived [in] August 2017, and has not departed since.[3]
[3] Movement record – 17 June 2024.
The PVA arrived in Australia first in August 2005, arriving and departing multiple times overthe years as [an occupation 1]. In the delegate’s decision it is noted that the PVA recorded [Number] arrival and departure travel movements for Australia. The PVA arrived [in] October 2017 with the three older children, and they have not departed since.[4] The youngest child was born in Australia.[5]
[4] Movement records – 17 June 2024.
[5] The delegate’s decision incorrectly referred to the youngest applicant having been born in Fiji.
The applicants who claim to be nationals of Fiji, applied for the visas on 17 November 2017.[6] The delegate refused to grant the visas on the basis that the PVA experienced a random and opportunistic sexual assault in 2006, her political opinion is unknown by the Fijian government or…

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 2307088 (Refugee)

Details

AGLC: 2307088 (Refugee) [2024] ARTA 814
Case: [2024] ARTA 814
Decision Date: 6 December 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered a review of a decision by the Migration Review Tribunal (MRT) in the matter of 2307088 (Refugee), where the applicants sought a protection visa based on alleged political instability, corruption, and economic conditions in Fiji, as well as past incidents of sexual assault. The Tribunal had previously affirmed the delegate's decision that the applicants did not meet the criteria for a protection visa. However, the Federal Circuit and Family Court set aside the Tribunal's decision, finding that it had not properly considered the applicants' claims of sexual assault in the context of the complementary protection criterion.

The legal issues before the court were whether the Tribunal had correctly assessed the applicants' claims under the complementary protection criterion and whether the applicants had a well-founded fear of persecution or significant harm upon return to Fiji. The court was required to determine if the Tribunal had erred in its assessment and, if so, whether this error was material to the outcome of the review.

The court found that the Tribunal had failed to properly consider the level of real personal risk to the applicants that further opportunistic and generalised incidents of sexual assault may occur upon their return to Fiji. The court noted that while the Tribunal accepted the applicants had been sexually assaulted on two occasions, it did not adequately consider the implications of these incidents in the context of the complementary protection criterion. This omission could have deprived the applicants of a successful outcome. The court concluded that the Tribunal's error was material and thus set aside the Tribunal's decision.

The court subsequently considered whether the applicants satisfied the criteria for a protection visa. It found that the applicants did not have a well-founded fear of persecution or significant harm upon return to Fiji. The court noted that while the applicants faced economic difficulties and general crime and violence, these conditions were not specific to the applicants and did not rise to the level of significant harm. Additionally, the court found that the applicants had not provided sufficient evidence of political activity or persecution based on political opinion. The court also considered the applicants' multiple departures and returns for work, which it found did not indicate a well-founded fear of persecution.

Orders

Orders of the court

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Background

Background to the litigation

The PVA appeared before the Tribunal (as presently constituted) on 17 June 2024 to give evidence and present arguments. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.BACKGROUNDEvidence before the Department According to information contained in their protection visa application:(a)the PVA is a [Age]-year-old Fijian citizen who was born in [Town 1], Fiji to Fijian citizens. The PVA and the husband married in November 2007, and the PVA was pregnant at the time of the application. The PVA and the husband belong to the Fijian ethnic group and are Christian; and(b)the husband and the children were not making their own claims for protection. In relation to their claims for protection, the PVA claimed the family left Fiji because of the fear and uncertainty that threatened their will to survive. The PVA referred to the Fijian government and the (at that time) upcoming election and wanting her family to be safe and her children to have a chance at a successful future. The PVA claimed that applying for the visa made her an enemy of the state because of her opinion about the instability of Fiji and the government’s inability to provide the best for its people. She did not feel safe if her family returned to Fiji and was seeking a safe future for her children. The PVA stated that there were no physical threats, the threats were psychological and emotional. On 23 November 2017, [Employer 1] confirmed in writing that the PVA was employed by them as [an occupation 1], having joined the company on 10 July 2006. Protection visa application interview The Department invited the PVA to attend an interview on 10 June 2019. The PVA did not want to add or change anything in her protection visa application and agreed with everything in it. The PVA was born in [Town 1] in [Year] and lived in [Town 2] before coming to Australia. The PVA had lived in [Town 3] for a year and a half at the time of the interview. Her father and stepmother live in [Town 3], but her biological mother has passed away. The PVA has one sister who lives in Perth, a brother studying in Perth and one brother in Fiji. The PVA, her husband, and her two children were in Australia for Christmas 2016, but she returned to Fiji in February 2017 to give birth to her third child in [Month] because it was too expensive to do it in Australia. The PVA returned to Australia in October 2017 to Sydney for one or two months. They then moved to Perth, because her sister was here for a couple of months, and then [Town 3] because her parents were there and there was better support. She returned to Perth to give birth to her fourth child because of her weight and complications. One month later she returned to [Town 3]. For eleven years, the PVA was an international [occupation 1] with [Employer 1] and had travelled multiple times to [Countries 1-5] and Australia. She resigned and applied for the protection visa in 2017 because of the uncertainty in Fiji due to the upcoming election (in 2018), and she was concerned for her children after her previous traumatic experiences.

Evidence

Evidence Before The Court

The PVA had thought there was going to be another coup. The family had also thought the election before would be different, but they gave the situation a chance. However, the same government won and nothing changed, in fact economically it became worse for them. The applicant is a Fijian native but does not own land. The government has taken everything from the landowners, in that the power to devolve land has been taken away from the Chiefs. It will cause generational displacement, and the husband is not full-Fijian, he is [Ethnicity] Fijian, and has no village in Fiji. He had been studying to be [an occupation 3] (which cost the family $30,000), but he could not afford to finish his education. He was on a list to receive a scholarship, but when the government came in, they scrapped the Fijian First Board and multicultural scholarships. The husband only had 50/200 more hours to do. The family tried little businesses and their parents supported them when they could. They could not obtain a loan for a house, even though the PVA had steady secure employment. A person has to have a very good job to buy a house, have a car or send their children to university. As a parent, the PVA feels she cannot shield and protect or provide basic needs for her children in Fiji.Evidence before the TribunalThe review application On 19 August 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal, providing a copy of the delegate’s decision with the application. As previously noted, on 30 November 2022, the Tribunal (differently constituted) affirmed the delegate’s decision. This was on the basis that it was not satisfied that the PVA had a well-founded fear of persecution for s 5J(1)(a) reasons; the PVA would not face harm for any reason; the impact on the PVA’s mental health in returning to Fiji would not constitute significant harm; there was no real chance of the daughters suffering domestic violence and other claims made were vague. On 17 June 2024, the applicants provided the Tribunal (as presently constituted) a copy of the Tribunal’s 30 November 2022 decision. On 18 May 2023 that decision was set aside by the Federal Circuit and Family Court of Australia (Division 2), on the basis that the Tribunal fell into error as it did not properly consider an integer of the PVA’s claims in the context of the complementary protection criterion.[8] The Tribunal had accepted that the PVA had been sexually assaulted on two occasions in the past. While the Tribunal found that this attack (sic) was opportunistic in nature and not ‘motivated for any reason’ (at [127]), such a finding did not dispose of the need for the Tribunal to consider the level of real personal risk to the applicant that further opportunistic and generalised incidents may occur on return. The failure to consider the claim in the context of the complementary protection criterion could have deprived the applicants of a successful outcome. [8] Consent order in PEG2/2023 dated 18 May 2023.

Decision

Reasons for decision

For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that all the applicants are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

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