2309969 (Refugee)

[2024] AATA 1105

2309969 (Refugee) [2024] AATA 1105 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2309969

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Khanh Hoang

DATE:16 February 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 February 2024 at 10:13am

CATCHWORDS

REFUGEE – protection visa – Fiji – imputed political opinion – opposition to the government – economic conditions – social media criticism – removal from property – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa on 13 July 2021.

3. The Tribunal invited the applicant to attend a hearing on 17 January 2024. On the morning of the scheduled hearing, the applicant sought an adjournment because she was receiving treatment in hospital that day and the doctors needed to conduct further tests before releasing her. A medical certificate from [Hospital 1] was provided to the Tribunal, which stated that the applicant was an inpatient and will be unfit for duties until 18 January 2024. The Tribunal agreed to the request and adjourned the hearing until 24 January 2024.

4. The applicant appeared before the Tribunal on 24 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [name], who is the applicant's husband. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

5. The applicant was unrepresented in relation to the review.

6. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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.

    Applicant’s identity and country of reference

12. Based on a copy of the applicant’s passport available on the Department’s file, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is the applicant’s nationality and her receiving country for the purposes of refugee and complementary protection assessments.

    Mandatory considerations

13. 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

    Claims before the Department

14. In her protection visa application, the applicant made claims for protection related to her political opinion and economic hardship. The applicant claimed that she suffered emotional and mental harm, as well as anxiety. She claimed that the Bainimarama Government was responsible for all this by raising food items and not providing support to poor people. The applicant claimed that the government was a dictatorship and that her quality of life will reduce if she were to return to Fiji.

15. The applicant claimed that if returned, she will be verbally abused as she often raised her views on social media platforms and people are taken to task for their opinion of the government. She stated that relocation was not possible because the country is small and has a low population.

16. The delegate refused the grant of the protection visa as they were not satisfied that the applicant is a refugee. The delegate found that her claims related to the economic situation in Fiji did not fall under any of the grounds in s 5J(1)(a). In respect of her claims of political opinion, the delegate found that the applicant is not high-profile public figure who engages in high-profile criticism of the government. Having regard to the country information and the applicant’s circumstances, the delegate was satisfied that the applicant could express her political views within the limits of the law without being subjected to serious harm, and therefore, she faces no real chance of persecution for reasons of her political opinion. For the same reasons, the delegate found that the applicant would not face a real risk of significant harm under the complementary protection criterion.

    In relation to her claims of economic hardship, the delegate found that there was no information to suggest that the applicant would suffer any of the forms of ‘significant harm’ in s36(2A)(a)-(c). In respect of significant harm in s36(2A)(d)-(e) of the Act, there was no information to suggest that there will be a perpetrator of any harm to the applicant and no actual, subjective state of mind, meaning there will be no intention to inflict the requisite level of pain or suffering necessary for cruel or inhuman treatment or punishment, or for degrading treatment or punishment. The delegate was not satisfied that the economic hardship the applicant claims she would face amounts to ‘significant harm’ under s36(2A) of the Act.

    Tribunal hearing

    Applicant’s background

17. The applicant was born in [a named town]. She has [number] siblings in Fiji and both her parents are deceased. The applicant and her husband were married in [year]. They have [specified children]. Of those children, they share one biological daughter while their other children are adopted. One of the applicant’s daughters resides in Australia as a citizen, and [other specified children] are also currently in Australia.

18. The applicant arrived in Australia [in] February 2020 on a visitor visa. She told the Tribunal that her husband had already arrived in Australia in 2019 and that he wanted to bring her and [one] daughter to Australia because of the problems they faced in Fiji. The applicant stated that she and her daughter arrived in Australia with the intention of spending three months before going back to Fiji. However, due to the COVID-19 pandemic, they were stuck, and she made an application for protection. The applicant stated that her daughter in Australia assisted her to fill out her protection visa application. She stated that she understood what was in her protection visa application. 

    The applicant’s claims

19. The Tribunal asked the applicant why she feared returning to Fiji. The applicant claimed that around 1995 she and her husband were residing in the village of [Village 1] in the Ra province. The applicant stated that her husband was working as a caretaker for a property that belong to [a Nationality 1] person. She claimed that the chief of the village and other villagers drove her family out of the village because her husband refused to release to them a [vehicle 1] that was on the property that he was caretaking. The applicant claimed that the villagers threatened to burn their house down. The applicant stated that they lived in fear and eventually moved to Suva in around 2000 and left everything behind, including their house and their land which was leased.

20. The applicant and her family moved to Suva in 2000 and then to [City 1] in 2012 where they stayed at a property owned by her son-in-law. The applicant stated that everything was fine until 2015, when the [Agency 1] officials came after the property and asked for relevant paperwork related to it. She stated that her husband answered to the [Agency 1] but they were removed from the property. They were told by [Agency 1] that the property does not belong to them, and they had to leave everything behind. The applicant then moved to another property in [City 1] which she rented and resided in until coming to Australia.

21. When asked multiple times whether there were any other reasons she feared returning to Fiji, the applicant stated that there were not. The Tribunal referred her to the claims she made in the protection visa application and she stated that she has no recollection of them, and there was nothing else that she wanted to say.  

22. The applicant’s husband, [name] gave witness evidence and confirmed that he lived with his wife in [Village 1] in 1995 and that they moved to Suva in 2000. They left everything behind in [Village 1] when they moved to Suva. The witness confirmed that they moved to [City 1] in 2012 and remained there until approximately 2016 when they were removed from their son-in-law’s house by [Agency 1] and rented a different house.

23. The Tribunal alerted the applicant to the fact that she has made claims with respect to the past, but that the Tribunal must determine, looking into the future whether she would face a risk of serious and significant harm if returned to Fiji. The Tribunal alerted the applicant to the fact that her claims did not appear to be related to reasons of race, religion, nationality, membership of a political social group or political opinion, and that after moving from her village in [Village 1], it did not appear as though she had suffered serious or significant harm. The applicant did not provide a comment and stated that there was nothing else that she wanted to say.

    FINDINGS AND REASONS

    Refugee findings

24. At the outset, the Tribunal is satisfied on the evidence that the applicant gave at hearing, that she has resiled from the claims made in the protection visa application. The Tribunal is satisfied that her claims made at hearing are all of her claims for protection. The Tribunal finds that the applicant has no subjective fear of persecution upon return to Fiji for reasons of political opinion or economic hardship, and it has not considered those claims any further.

25. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

26. The Tribunal accepts that the applicant and her husband were driven out of their village in [Village 1] because her husband refused to surrender a [vehicle 1] to the villagers, and that they moved to Suva in around 2000. The applicant’s evidence indicated that she and her husband were able to live peacefully in Suva until they moved to [City 1] in 2012. The Tribunal accepts that the applicant and her husband were driven out of her son-in-law’s property in [City 1] around 2015, after investigations undertaken by the [Agency 1]. The Tribunal accepts that they had to rent another residence and that the applicant remained in that residence until her departure to Australia. The applicant did not claim to have experienced any harm after moving to that new residence around 2015.

27. The Tribunal finds that the applicant’s experiences do not rise to the level of serious harm, and do not relate to persecution for one or more of the reasons set out in s 5J(1)(a). Although the Tribunal accepts that the applicant has suffered some harm in the past — such as psychological stress involved with moving cities and properties — the Tribunal must look into the reasonably foreseeable future to determine whether the applicant faces a real chance of persecution if she were to return to Fiji.

28. The applicant did not articulate any fear of future harm if she were to return to Fiji. The Tribunal finds that she was able to reside safely in Suva from 2000 to 2012 without any harm from the villagers or anyone else. Similarly, she was able to reside safely in [City 1] from 2012 up until the time she departed for Australia, except for the period when she transitioned from properties as a result of the [Agency 1] investigation. As the [Agency 1] investigation is now long settled, the Tribunal finds that the applicant is not at any risk of harm from [Agency 1] should be return to Fiji. The Tribunal finds that the applicant could return to Fiji and reside in either [City 1] or Suva without any risk of persecution. It follows that she faces no real chance of suffering persecution if she were to return to Fiji now or in the reasonably foreseeable future.

29. The applicant is not a refugee for the purposes of s 5H of the Act. She is not a person in respect of whom Australia has protection obligations under s 36(2)(a).  

    Complementary protection findings

30. Having found that the applicant is not a refugee, the Tribunal will now consider whether she meets the criterion for complementary protection under s 36(2)(aa). That is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

31. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

32. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[1] The Tribunal found above that the applicant faces no real chance of suffering persecution upon return to Fiji. For the same reasons, the Tribunal also finds that the applicant faces no real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji. 

    [1] MIAC v SZQRB [2013] FCAFC 33

33. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

    Conclusion

34. 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).

35. 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).

36. 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

37. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Khanh Hoang
    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.

    …