2401564 (Refugee)

2401564 (Refugee) [2024] AATA 1361 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401564
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Mia Bailey
DATE:27 March 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 March 2024 at 4:04pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – high cost of living – general economic conditions do not amount to persecution – economic disadvantage experienced by the applicant does not amount to serious harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 499
Migration Regulations 1994, 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 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 (delegate) on 29 January 2024 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 2 November 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 27 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
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 engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act.
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
The applicant, a [age]-year-old male, last arrived in Australia on [date] November 2019 on a Temporary Work (International Relations) (subclass 403) visa under the Pacific Australia Labour Mobility scheme.
The applicant provided a copy of the biodata page of his Fijian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before me to the contrary. I find that the applicant is a citizen of Fiji, and that Fiji is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
According to the applicant’s protection visa application, he lived in Suva from birth until November 2019 and completed high school in [year]. No details are provided of any family members.
Regarding his protection claims, he stated that he left Fiji to get a ‘new life environment’ which is safer and with a better economy. Regarding whether he has previously experienced harm in Fiji, he stated ‘No’. Regarding what he thinks will happen if he returns, he stated:
Nowadays there is much criminal cases and very bad economy. My life is somewhat affected because of the rising cost of living and the basic stuff becomes very expensive while my earning every month is still the same.
He claims that his life will be difficult because of the high cost of living and ‘much criminal issues’ with ‘thefts and snatch cases’ being very common in Fiji. He has to financially support his parents and siblings.
The applicant was not invited to attend an interview with the delegate. The delegate found the applicant’s claims, which were considered to relate to economic hardship, to not be for any of the reasons in s 5J(1)(a) and to not amount to any of the types of ‘significant harm’ in s 36(2A) of the Act.
Evidence before the Tribunal
Asked about the completion of his protection visa application, the applicant stated that he paid $500 for someone to complete it. He thinks this person is a lawyer, but he is not sure; he was put in touch with them via a friend. He did not read and does not know what is stated in the protection visa application.
Regarding his family, he stated that his father passed away in 2020 because of diabetes. Before he retired his father worked for the government in ‘[specified] services’. His mother lives in Suva. He has one brother and 3 sisters. His brother lives in Suva and works in construction. One of his sisters lives in Suva with his mother; another sister who was working in a hotel in Fiji is currently living in Australia; and a third sister lives in his village on [an] Island.
He lived on [an] Island until he started primary school, at which time he moved to Suva. He completed primary school but did not go on to high school. When asked why, he indicated that he was struggling with his exams and did not wish to continue. He estimated that he was around [age] years old at the time he finished school. Asked what he did after that, he stated that he worked in construction in Suva and did some work with his [uncle]. During his time in Australia, he has worked in various fruit picking jobs.
Asked why he feels he can’t return to Fiji, the applicant stated that he is the only one supporting his family and the work opportunities and working conditions in Fiji are not the same as they are in Australia. I asked the applicant several times whether there are any other reasons he feels unable to return to Fiji. He reiterated his desire to remain in Australia because of the better work opportunities. He also referred to disliking the way that people treated him in Fiji. When asked for further details, he stated that people ‘look down on him’ and say demeaning things to him because of his level of education.
I discussed with the applicant that, while I have not made my mind up, his claims were unlikely to engage protection obligations as a refugee or under complementary protection and explained the concepts of persecution, serious harm, and significant harm. The applicant indicated that he understood and there was nothing further he wished to tell me.
Assessment
I accept the applicant’s evidence that he did not complete the protection visa application and was unaware of its content. I find this to explain the discrepancies between his protection visa application and oral evidence to the Tribunal regarding his place of residence and level of schooling. I accept his oral evidence to the Tribunal to be overall credible. I have some concern regarding his claim to be the only person supporting his family in Fiji, given that his brother is working in construction and his sister, who is also in Australia, has experience working in a hotel. However, I accept that he is better able to support his family with the income that he earns in Australia.
I accept that the applicant does not wish to return to Fiji because he would not have access to the same level of work opportunities and working conditions as he would in Australia. Given the applicant’s previous employment in Fiji, I find that he will be able to secure employment on return to Fiji. However, I accept that it is likely that he will be unable to earn as much and not enjoy the same working conditions as he does in Australia. I accept that this may cause economic disadvantage to the applicant.
As discussed with the applicant at the hearing, general economic conditions in Fiji which may result in economic disadvantage, do not amount to persecution. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[2]
[2] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
I find that the harm feared by the applicant, namely that he will not be able to access the same level of work opportunities or employment conditions in Fiji compared to Australia, to not be for any of the reasons in s 5J(1)(a) of the Act. It follows that the requirements in
s 5J(4)(a) and s 5J(4)(c); that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct; are not satisfied.
Further, I find that any economic disadvantage experienced by the applicant does not amount to serious harm and therefore the requirement in s 5J(4)(b) is not satisfied. While serious harm can involve significant economic hardship, this must threaten a person’s capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[3] I am satisfied that any economic disadvantage experienced by the applicant due to less favourable work opportunities in Fiji does not amount to serious economic hardship that would threaten his capacity to subsist.
[3] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
I accept that the applicant has experienced some demeaning comments in Fiji because of his level of schooling and may experience such comments in the future. While I accept that the applicant disliked these comments, I find it does not amount to serious harm for the purposes of s 5J(4)(b), examples of which are set out in s 5J(5).
The protection visa application refers to generalised criminal activity, such as theft and ‘snatching’ or pickpocketing, in Fiji. The applicant was asked several times during the hearing about his reasons for not wanting to return to Fiji and did not raise this. Considering the applicant’s acknowledgement that he had no involvement in completing the protection visa application and his oral evidence to the Tribunal, I find that he does not fear returning to Fiji for this reason.
For the above reasons, I find that the applicant does not have a well-founded fear of persecution in Fiji and is therefore not a refugee.
As I have found the applicant to not be a refugee, I have considered whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, he will suffer significant harm. I note that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
I find that the harm feared by the applicant, namely that he will not be able to access the same level of work opportunities or employment conditions in Fiji compared to Australia and will be subjected to demeaning comments because of his level of schooling, to not amount to any of the types of significant harm defined in s 36(2A).
Regarding any economic disadvantage that the applicant may experience due to general economic conditions in Fiji, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[4] I find that there would be no perpetrator with the intention to inflict harm of the type described in those definitions.
[4] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
Regarding any demeaning comments that the applicant may experience because of his level of schooling, I find that this would not amount to the level of severity to satisfy the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. According to the applicant’s evidence to the Tribunal, he ‘disliked’ these comments. He did not refer to experiencing any harm of a physical or mental nature because of these comments. Based on the available evidence, I am not satisfied that any such comments would inflict upon the applicant severe physical or mental pain or suffering or extreme humiliation which is unreasonable.
The applicant has not raised any other protection claims and I am satisfied that none arise on the facts.
Conclusions
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) or 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.
Mia Bailey
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 1361

27 March 2024

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