2320167 (Refugee)

2320167 (Refugee) [2024] AATA 1918 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2320167
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:22 February 2024
PLACE OF DECISION:  Adelaide
DECISION:  The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 February 2024 at 11:23 am

CATCHWORDS
REFUGEE – protection visa – Fiji – economic opportunities – non-active member of political party – vague claims of discrimination and threats for speaking for Indigenous rights – applied after student visa ceased and application prepared by someone else – no further material provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
According to her Protection visa application, the applicant is a citizen of the Republic of Fiji (Fiji). She is [Age] years old and was born in [Town], Fiji. She claimed that she is a Christian and she speaks, reads and writes English and Fijian. She claims that she has never married.
She arrived in Australia [in] June 2019 as the holder of a Student visa. She applied for the Protection visa on 5 October 2023.
A delegate of the Minister refused to grant the visa on 13 November 2023.
The review application
On 10 December 2023, the applicant applied for a review of that decision. She provided a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 25 January 2024, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the applicant but was unable to make a favourable decision on that information alone. The Tribunal invited her to give oral evidence and present arguments at a hearing on 21 February 2024 and to provide all documents she intended to rely on to support her case by 14 February 2024.
On 15 February 2024, the Tribunal wrote to the applicant asking her to provide her response to the hearing invitation as soon as possible. The applicant responded twice the same day be email advising ‘[y]es, I will be attending’ and ‘I have received the email and I’m kindly waiting for the appeal interview in the coming week. Thanks.’ No other material was provided.
The applicant appeared before the Tribunal on 21 February 2024 from the Northern Territory to give evidence and present arguments. I exercised my discretion to hold the hearing by Microsoft Teams video. I determined that it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay in the matter if the hearing was not conducted by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant gave evidence about her background, her migration history and her claims for protection. I am satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on her behalf. Where relevant, the oral evidence given at the hearing is referred to in the analysis below.
The applicant was not represented in relation to the review.
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, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant claims that she was born in [Town], Fiji. She provided a copy of the biodata page of her Fijian passport with her application.
I am satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant made the following claims in her Protection visa application.
She claimed that she came to Australia on a Student visa in 2019 and when the COVID lockdown started in 2020 her family relied on her to support them for survival, which was not an easy task as she was on limited work.
She claimed that she had to apply for this visa because it is the only option for her to support her family back home and there are not many opportunities for her back in Fiji.
She claimed after the COVID pandemic most people have been laid off work and if she is given an opportunity here she would be able to support herself and her family back home.
She claimed that she had not experienced harm in Fiji.
She claimed that she had not tried to move to another part of Fiji because moving is not an option as people know each other.
She claimed that if she returned to Fiji she would feel more stressed because her family’s and relatives’ expectation of her will be high.
She claimed that she did not think she would be harmed or mistreated if she returned to Fiji.
She claimed that the authorities could not and would not protect her because her people have been discriminated against and silenced for speaking up about Indigenous rights and she has been threatened too many times by supporters of the government for doing that.
She claimed that ‘[t]he entire 23 sunset clauses which this current government is founded on portray elements of racial discrimination in accordance to the International Convention on the Elimination of all forms of Racial Decimation’.
She claimed that she would be able to relocate within Fiji to an area where she would not be harmed.
She claimed that Australia is the land of opportunity and she hopes her kind request to relocate here will be considered.
Analysis, findings and reasons
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if she is owed complementary protection, or if she is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, I have concluded that the decision under review should be affirmed.
At the hearing, the applicant explained that she had paid a Fijian lady in Sydney $150 to help prepare her application. She said her student visa had finished and a friend referred her to the woman who told her to fill in a Protection visa application. The applicant said she wanted to stay in Australia and get work and support her family back home.
At the hearing, the applicant said that nothing would happen to her if she returned to Fiji. The applicant claimed, and I accept, that she had not ever experienced harm in Fiji and that no one would harm her if she returned to Fiji.
Considering the claims in her application, I asked about her political involvement. The applicant said that she had joined SDL political party in [Year] because she was at the legal age to take part in the election and she decided to join the political party. When asked what she did as a member, she explained that she only joined to vote for the party. She did not campaign for the party, and nothing happened to her because of her membership. I accept that the applicant has not experienced harm because of her political opinion.
The applicant claimed, and I accept, that she had not experienced harm as an Indigenous Fijian. When asked about her claims relating to the 23 sunset clauses, the applicant said that she did not really understand what was written. After reading to her what was written in her application about the 23 sunset clauses, she said that she did not want to talk about this claim. When asked if she had been threatened many times by supporters of the government for speaking out on Indigenous rights, the applicant said, ‘no member’.
When asked how she managed the stress because her family’s expectations are so high, the applicant said that she goes to church frequently to relieve herself of those stresses, which she said was effective. I accept that the applicant is able to manage her stresses through her religious practice.
At the hearing, the applicant provided details of her parents, her three brothers and sister. Her parents have moved to another part of the village, which is closer to the church where they are caretakers. Her oldest brother is [an Occupation 1], the next oldest works in [a Workplace] and lives at home, and the youngest is at university in [Town]. Her sister is living and working on a different island. When asked what work she would do if she returned to Fiji, she said she would look after her parents as they are getting older. She said as well as supporting and helping them, she would also look for work. She agreed that she could work in [Work sector] in Fiji. I accept that the applicant would be able to subsist if she returned to Fiji now or in the reasonably foreseeable future.
I appreciate that the applicant would prefer to stay and work in Australia. However, based on the evidence before me, I am not satisfied and I do not accept that the applicant has experienced any harm in Fiji in the past, including discrimination for speaking up about Indigenous rights or being threatened by government supporters. I am not satisfied and do not accept that she faces a real chance of persecution in Fiji for the reason of her race, religion, nationality, membership of a particular social group or political opinion.
Based on the evidence before me, I am not satisfied and do not accept that there is any real risk that the applicant would face significant harm if removed from Australia to Fiji now or in the reasonably foreseeable future, including because of stress from her family members or being unable to subsist.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I considered the alternative criterion in s 36(2)(aa). I am not 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.
Katherine Harvey
Senior 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.
…

[2024] AATA 1918

22 February 2024

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Immigration

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Statutory Interpretation

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