2401648 (Refugee)

[2024] AATA 2295

2401648 (Refugee) [2024] AATA 2295 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401648

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Angela Cranston

DATE:5 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2024 at 13.50pm

CATCHWORDS

REFUGEE – protection visa – Fiji – political opinion – opposition to the government – economic conditions – family violence – fear of killing – removal from family home – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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 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 5 January 2024 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 and was born in [specified year], applied for the visa on 11 September 2023. In his application, the applicant stated the following:

My political opinion of government

In search of better economic stability

Flee economic hardship and I also flee domestic violence as my father died in a motor cycle accident

Flee youth pressure and peer pressure.

Nowhere to go and no support at all

3.    The delegate refused to grant the visa and the applicant applied for review.

4.    Prior to hearing, the Tribunal received the following from the applicant’s mother:

I [mother’s name] wife of late [her husband’s name] and mother to [the applicant], [Sister A] and [Sister B].
After my husband passed away [in] May 2019 our whole world had turned
upside down. My husband’s family had tried to put me and my kids on the street telling me that everything my late husband owns belongs to them. They had fought with me everyday and since my son ([the applicant]) is the only son in their whole family they gave him a hard time knowing he was going to inherit all his late father’s property. They swore at him everyday and even spat at him to a point he couldn't concentrate in school and didn’t even want to go to school most days since his late father’s family attended the same Muslim school.
I cried everyday because of what they were putting me and my kids through and I had no one to turn to except one of my aunty ([Aunt A]) who would always come to me and my kids rescue and she protect us from them. Since my husband had died in an accident he had no will and since I was his legal wife I got everything he owned. I had secretly applied for a probate through the [Agency 1] but it took 3yrs and during that period I was also taken to court by my in laws but later the case was dismissed. But it didn’t stop there their whole family continued to curse and threaten us.
One day my in laws went to [Country 1] but my late husbands family kept giving my son a very hard time and they even threaten to kill him. I couldn't see my kids in so much pain especially my son ([the applicant]).So that’s when I had decided to bring him here to Australia and seek protection. My daughter [Sister A] since she wanted to become a doctor I had put her on a student visa. After I got them settled I had a few weeks left before going back to Fiji with my little daughter ([Sister B]) my care taker ([Ms A])who was looking after my place while I was here in Australia called me and said my in laws heard I came to Australia with my kids decided to come back from [Country 1].
They chased my care taker ([Ms A]) out of my house and when she told them that it’s my house not theirs they told her that it’s not my house it belongs to their son and so it’s theirs now. I decided to call them and to my surprise the whole family was gathered at our place and that is when they told me that if me and the kids ever come back or step foot in that house they would burn us alive while we slept and make it look like an accident. Scared for me and my kids life I decided to go on a protection visa also with my daughter [Sister B].I didn’t have any evidence because all my documents were kept hidden in my room back in Fiji. So I knew someone from [City 1] who went to Fiji and I asked my brother who used to stay with me also if he could go to my place and tell my in-laws that he forgot his computer bag there. I told him where I had hid the folder and he managed to get it out without them suspecting a thing. So the folder finally reached me last month (February 2024) which has my husband’s death certificate and other important documents
I’m also pleading with your government to please protect me and my kids.

5.    The applicant appeared before the Tribunal on 26 March 2024 to give evidence and present arguments.

6.    The applicant stated he applied for a protection visa and his aunt in [City 2] helped with the form. He stated he answered some questions but because he was [under age] at the time, his mother was responsible for the answers to questions such as ‘provide reasons why you left your country’. He stated his mother, and two sisters were in [City 2] and he was in [Town 1].

7.    The applicant stated on his father’s side there were his grandfather and grandmother and his grandfather’s brother’s sons who he said were his uncles. He stated there was [Uncle A], [Uncle B], [Uncle C], [Uncle D] and their fathers but he did not know their names. He stated in Fiji he lived all his life in [Village 1] with his mother, father, sister, paternal grandparents, and his father’s relatives [named].  [Another relative] went to [Country 1] when the applicant was young and was still there.

8.    The applicant’s father died in 2019.

9.    The applicant left school when he was [age] and did [Course 1]. In Australia he worked in [a business 1]. 

1. The applicant stated he came to Australia to visit his maternal grandmother. When specifically asked, he stated there were no other reasons why he came to Australia. He then stated he could not return to Fiji because not only his grandparents who returned from [Country 1] when the applicant went to Australia threatened them because they wanted the house but also [Uncle B] and [Uncle A].

2. The Tribunal put to the applicant that none of this was in his protection visa application which said he left Fiji because of his political opinion, because he was in search of better economic stability, was fleeing economic hardship, domestic violence and was fleeing youth pressure and peer pressure.

3. The applicant stated there was drinking and fighting in villages after Prime Minister Rabuka took over. The Tribunal put to him that when earlier asked at hearing, he had only stated he came to Australia to visit his grandmother and had not stated any of the reasons identified in his protection visa application. He stated he visited his grandmother, he was young and his mother did not mention everything to him.

4. The Tribunal put to him that his mother’s statement said her late husband’s family kept giving the applicant a very hard time and even threatened to kill him and that was why she decided to bring him to Australia and seek protection. He stated during school and at the mosque they would say things to him. The Tribunal put to him he had not mentioned that earlier at hearing. When asked to explain, he said he had not thought of it. The Tribunal also put to him his mother said after his father passed away his family gave the applicant a hard time swearing at him everyday and even spat at him. He agreed. When asked why they would do that, he stated it was because his father owned property and had money. The Tribunal put to him that was not a reason he gave earlier at hearing as to why he came to Australia.

5. The Tribunal put to him that in Fiji (and according to the Department of Foreign Affairs Coutnry Information Report 20 May 2022) it understood there was informal land use or squatting but most was done with the permission of the landowner but informal land users had very few legal rights and may be asked to leave at any time and even if the Tribunal accepted his in-laws were living in the house that belonged to he and his mother they could ask them to leave at anytime and the Fijian police were known to be usually effective in carrying out their day to day role against crime. He stated that was kind of true but it was easy to bribe the police. 

6. The Tribunal put to the applicant it may find it difficult to accept what he was saying was true given that it was not in his protection visa application and he had not stated these as reasons why he came to Australia. It also stated even if it accepted family were living in his house, it was open to him to have them removed and there may not be any reason why he could not return to Fjii. He did not wish to comment.

7. The Tribunal also put to him that his protection visa application made several claims which he had not earlier repeated and also said he did not complete his protection visa application himself and my find it difficult to accept that these were reasons he departed Fiji. He did not wish to comment.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Fiji and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. In his protection visa application, the applicant stated he left Fiji because of his political opinion of government, he was in search of better economic stability, he was fleeing economic hardship and domestic violence and youth and pressure however when initially asked at hearing why he left Fiji, he did not repeat any of those reasons and only said it was to visit his sick grandmother. In addition, while the applicant’s mother provided a statement that said her husband’s family tried to put her and her children on the street telling her that everything her late husband owned belonged to them and they fought with her everyday and swore at the applicant every day and spat at him, and that her late husband’s family kept giving the applicant a very hard time and even threatened to kill him and that was why she had decided to bring him to Australia and seek protection, he did not repeat any of those reasons at hearing as to why he left Fiji. Instead, he said he could not return to Fiji because not only had his grandparents returned from [Country 1] when the applicant went to Australia but [Uncle B] and [Uncle A] had threatened he and his immediate family because they wanted the house.

4. The changing nature of the evidence in relation to why the applicant allegedly left Fiji and the applicant’s inability to consistently provide details about the alleged harm he experienced in Fiji is such that the Tribunal does not accept the applicant, nor his mother are recounting events that have occurred but are simply making up evidence as they go along.

5. The Tribunal does not accept that the applicant did come to Australia because of his political opinion of government, he was in search of better economic stability, fleeing economic hardship and domestic violence and youth and pressure, nor that these are reasons why he cannot return. Neither does it accept that while he was in Fiji, his father’s family tried to put him and his mother on the street, nor that they fought with her every day, nor swore at the applicant every day and spat at him, nor gave him a very hard time and even threatened to kill him. Given the applicant’s inability to provide details consistent with the evidence concerning this alleged harm in Fiji, neither does it accept the applicant cannot now return to Fiji because of his grandparents or that the brothers who had not been to [Country 1] threatened to burn the applicant and his immediate family inside the house.

6. 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).

7. 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 had rejected the applicant’s entire claims. The Tribunal is therefore not satisfied that there is a real risk that the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act.

8. Given this the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. 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

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

Angela Cranston
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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…