2321242 (Refugee)

Case [2024] AATA 4448

2321242 (Refugee) [2024] AATA 4448 (10 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2321242

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Mary-Ann Cooper

DATE:10 October 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 10 October 2024 at 5:22pm

CATCHWORDS
REFUGEE – protection visa – Fiji – domestic violence – psychological and physical abuse continuing after court order and threats verbally and by messages while applicant in Australia – significant documentary evidence – statements from son, friends and colleagues, and psychologist’s report – male-dominated society and gender roles – police inaction, unhelpfulness or hostility – relocation not practical – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (4)(b), (5), 5L, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
MIEA v Respondent A (1994) 127 ALR 383
MIMA v Khawar (2002) 210 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 735
SZTEQ v MIBP [2015] FCAFC 39
SZTOO v MIBP [2015] FCCA 1631

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 1 December 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 12 August 2023. The delegate refused to grant the visa on the basis that on the basis that the applicant did not satisfy the criterion in s 36(2)(a) of the Act and was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).

  3. The applicant appeared before the Tribunal on 23 May 2024 and 23 August 2024 to give evidence and present arguments.

  4. The Tribunal hearings were conducted with the assistance of an interpreter in the Fijian and English languages.

    CRITERIA FOR A PROTECTION VISA

  5. 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…

Continue reading 2321242 (Refugee)

Sign in free to access the full text

Details
AGLC
2321242 (Refugee) [2024] AATA 4448
Case
[2024] AATA 4448
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Protection visa by a citizen of Fiji. The applicant claimed she had been subjected to ongoing domestic violence by her husband throughout their marriage, including physical and psychological abuse. She stated that despite reporting some incidents to the police and obtaining a court order, the abuse continued, and she feared for her safety if returned to Fiji, citing the country's male-dominated society and perceived weakness of women's rights. The Department had refused her application, finding a remote chance of future violence. The case was heard by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa, either under the 'refugee' criterion or the 'complementary protection' criterion. Specifically, the court needed to assess if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, the applicant faced a real risk of suffering significant harm. This involved considering the applicant's claims of past and ongoing abuse, the effectiveness of protection mechanisms in Fiji, and the practicalities of relocation within Fiji.

The Tribunal found that the matter should be remitted for reconsideration. While acknowledging the applicant's Fijian nationality and thus Fiji as the receiving country, the Tribunal's reasoning focused on the need for a more thorough assessment of the applicant's claims and the evidence presented. The Tribunal noted the applicant's explanation for not reporting all incidents of abuse, including the need for her husband's financial support for their children and her desire to maintain some privacy. The Tribunal also considered the applicant's statements about continued threats from her husband while in Australia and her fear of him finding her if she were to relocate within Fiji. The Tribunal's decision to remit suggests that the initial assessment by the Department, and potentially aspects of the Tribunal's own hearing, did not adequately address the complexities of the applicant's situation and the potential for significant harm.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant has provided her Fijian passport issued [in] 2017. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Fiji and as such her protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.Background The applicant arrived in Australia [in] May 2023 on a Visitor visa (Class FA) (Subclass 600) which ceased on [date] August 2023. On 12 August 2023 she applied for a Protection (Class XA) (Subclass 866) visa, which was refused by the Department for the reasons noted below.Protection visa application The applicant was born in [Town], Fiji on [Date]. She attended primary and secondary school, studied [Subject] and joined [Employer] in [April] 2000. She has [children], the eldest is [Age] and the youngest is [Age]. In her protection visa application she states the reason she left Fiji was because of domestic violence throughout her [years] of marriage. She claims her husband continuously harassed, punched and kicked her. She said she reported his behaviour and he was taken to court and suspended from the [employer], where she also worked. She further claims he has been having an extramarital affair for the previous 10 years. She states she is unable to relocate because Fiji is a small country and her husband would easily find her. She thinks she will continue to be harmed by her husband if she is returned to Fiji and states that her children have supported her to leave. When asked if she thinks the authorities can protect her she responds that women’s rights are not that strong in Fiji compared to Australia.Decision of the Department The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The delegate did not accept that the applicant was a victim of domestic violence and found that there was a remote chance that she would be subjected to violence from her husband. The delegate found similsrly in relation to the complementary protection criteria. Accordingly, the applicant’s protection visa application was refused.Tribunal hearing At the hearing the applicant confirmed she came to Australia because she feared her husband’s violence. She said she currently lived with aunties in [Town] and was providing child care for her cousins in return for board and accommodation. The Tribunal observed that when the applicant came to Australia she was on LWOP from the [employer] and commented that this did not indicate she was fleeing her husband /persecution. She said that at the time she was planning to return to Fiji but when she told her aunties about her husband’s abuse they had informed her that she could apply for protection in Australia. She claimed her husband has continued to threaten her since she came to Australia and is afraid that he will kill her if she returns. In relation to incidents of past harm, the applicant referred to a 2013 incident in which she was physically assaulted by her husband and the matter was reported to the police. She was given a court order but maintained that her husband continued to abuse her physically and psychologically until she came to Australia. When asked why there were no orders after 2013 she said he would be sent to prison if she had reported his further abuse but that there was another police report in 2023. She said she often did not make more reports of his abuse because he was a means of support for the children and if he was sent to jail he would no longer be able to provide financial support for the children. The Tribunal asked about the 2023 incident. The applicant claimed it occurred on the morning while the children were getting ready for school. Her husband had become impatient with the length of time the children were taking o get ready for school and when she asked him not to swear and he assaulted her and her oldest son, punching her. The Tribunal observed that the physical assault was not recorded in the police report and asked applicant to explain. She said it was because he would be sent to jail and she needed his financial support. She also said she had some compassion for him, she did not know why, and wanted to keep some things private. Also, one wage was insufficient to support the children. When asked what happened to him on this occasion she said he was warned.

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The Tribunal has considered the written and oral evidence and submissions provided as well as independent country information. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of nationality Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’. In relation to the complementary protection provisions, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country. The applicant has provided her Fijian passport issued [in] 2017. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Fiji and as such her protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.Background The applicant arrived in Australia [in] May 2023 on a Visitor visa (Class FA) (Subclass 600) which ceased on [date] August 2023. On 12 August 2023 she applied for a Protection (Class XA) (Subclass 866) visa, which was refused by the Department for the reasons noted below.Protection visa application The applicant was born in [Town], Fiji on [Date]. She attended primary and secondary school, studied [Subject] and joined [Employer] in [April] 2000. She has [children], the eldest is [Age] and the youngest is [Age]. In her protection visa application she states the reason she left Fiji was because of domestic violence throughout her [years] of marriage. She claims her husband continuously harassed, punched and kicked her. She said she reported his behaviour and he was taken to court and suspended from the [employer], where she also worked. She further claims he has been having an extramarital affair for the previous 10 years. She states she is unable to relocate because Fiji is a small country and her husband would easily find her. She thinks she will continue to be harmed by her husband if she is returned to Fiji and states that her children have supported her to leave. When asked if she thinks the authorities can protect her she responds that women’s rights are not that strong in Fiji compared to Australia.Decision of the Department

Decision

Reasons for decision

In her protection visa application she states the reason she left Fiji was because of domestic violence throughout her [years] of marriage. She claims her husband continuously harassed, punched and kicked her. She said she reported his behaviour and he was taken to court and suspended from the [employer], where she also worked. She further claims he has been having an extramarital affair for the previous 10 years. She states she is unable to relocate because Fiji is a small country and her husband would easily find her. She thinks she will continue to be harmed by her husband if she is returned to Fiji and states that her children have supported her to leave. When asked if she thinks the authorities can protect her she responds that women’s rights are not that strong in Fiji compared to Australia.Decision of the Department The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The delegate did not accept that the applicant was a victim of domestic violence and found that there was a remote chance that she would be subjected to violence from her husband. The delegate found similsrly in relation to the complementary protection criteria. Accordingly, the applicant’s protection visa application was refused.Tribunal hearing At the hearing the applicant confirmed she came to Australia because she feared her husband’s violence. She said she currently lived with aunties in [Town] and was providing child care for her cousins in return for board and accommodation. The Tribunal observed that when the applicant came to Australia she was on LWOP from the [employer] and commented that this did not indicate she was fleeing her husband /persecution. She said that at the time she was planning to return to Fiji but when she told her aunties about her husband’s abuse they had informed her that she could apply for protection in Australia. She claimed her husband has continued to threaten her since she came to Australia and is afraid that he will kill her if she returns. In relation to incidents of past harm, the applicant referred to a 2013 incident in which she was physically assaulted by her husband and the matter was reported to the police. She was given a court order but maintained that her husband continued to abuse her physically and psychologically until she came to Australia. When asked why there were no orders after 2013 she said he would be sent to prison if she had reported his further abuse but that there was another police report in 2023. She said she often did not make more reports of his abuse because he was a means of support for the children and if he was sent to jail he would no longer be able to provide financial support for the children. The Tribunal asked about the 2023 incident. The applicant claimed it occurred on the morning while the children were getting ready for school. Her husband had become impatient with the length of time the children were taking o get ready for school and when she asked him not to swear and he assaulted her and her oldest son, punching her. The Tribunal observed that the physical assault was not recorded in the police report and asked applicant to explain. She said it was because he would be sent to jail and she needed his financial support. She also said she had some compassion for him, she did not know why, and wanted to keep some things private. Also, one wage was insufficient to support the children. When asked what happened to him on this occasion she said he was warned.

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 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The Tribunal has considered the written and oral evidence and submissions provided as well as independent country information. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of nationality Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’. In relation to the complementary protection provisions, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country. The applicant has provided her Fijian passport issued [in] 2017. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Fiji and as such her protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.Background The applicant arrived in Australia [in] May 2023 on a Visitor visa (Class FA) (Subclass 600) which ceased on [date] August 2023. On 12 August 2023 she applied for a Protection (Class XA) (Subclass 866) visa, which was refused by the Department for the reasons noted below.Protection visa application The applicant was born in [Town], Fiji on [Date]. She attended primary and secondary school, studied [Subject] and joined [Employer] in [April] 2000. She has [children], the eldest is [Age] and the youngest is [Age].