2401816 (Refugee) - [2024] AATA 2736

2401816 (Refugee) [2024] AATA 2736 (17 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401816
COUNTRY OF REFERENCE:                   Fiji
MEMBER:R Guemy
DATE:17 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 June 2024 at 11:30am

LEGISLATION
Migration Act 1958, ss 5, 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 dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant, a [age]-year old male and citizen of Fiji born in [Town 1], claimed to have last entered Australia in December 2020. He applied for a protection visa on 4 November 2023.
CLAIMS AND EVIDENCE
Evidence given to the Department
The applicant provided a copy of the bio page of his Fijian passport issued on [date] 2014.
In response to a question on the protection visa application form asking whether he had experienced past harm in Fiji, the applicant answered ‘No’.
In his written protection visa application the applicant otherwise claimed that:
i.he came to Australia through the Pacific Labour Scheme to work in the farm. His term is expiring soon and there is no extension of contract which is the reason he was applying for a protection visa;
ii.his future looks bleak and he needed to work in Australia in order to support his family in Fiji;
iii.life in Fiji is hard and only those people that are qualified get to find a job whereas people like him are left behind;
iv.the rich are getting richer and the poor are getting poorer in Fiji;
v.if given an opportunity in Australia, he can support his family in Fiji;
vi.he could not relocate in Fiji because it is a small island nation where people know each other and moving is not an option;
vii.he won’t be able to find a job in Fiji; and
viii.Australia offers a greater opportunity for him in finding a job in which he can support his family in Fiji.
The Department’s delegate did not invite an applicant to attend an interview.
The delegate found that the applicant’s claim that he would experience economic hardship in Fiji as a result of being unable to obtain employment did not relate to any of the reasons in s 5J(1)(a) and there was no other information to suggest that he would be subject to harm on his return to Fiji for one or more of those reasons. There was also no other information to suggest that the applicant would be unable to obtain employment for one or more of those reasons. The delegate was not satisfied that the applicant was a refugee as defined in s5H(1) of the Act. Accordingly, he found that the applicant was not a person in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read 2401816 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 2736
Decision Date: 17 June 2024

CaseChat Overview and Summary

The applicant, a citizen of Fiji, sought a protection visa in Australia, claiming he would be unable to obtain employment upon his return to Fiji and feared harm in the form of witchcraft. The delegate of the Department of Home Affairs refused the application, finding that the applicant's claims of economic hardship did not fall within the grounds for protection under s 5J(1)(a) of the Migration Act 1958 (Cth) and that there was no other information suggesting he would face harm for one of the prescribed reasons. The delegate was not satisfied that the applicant was a refugee or that he would suffer significant harm if returned to Fiji.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under s 36(2) of the Act, specifically whether he was a refugee as defined in s 5H(1) due to a well-founded fear of persecution, or whether he qualified for complementary protection under s 36(2)(aa) by facing a real risk of significant harm upon removal to Fiji. The Tribunal was required to assess the applicant's credibility and the substance of his claims in light of the evidence and relevant legislative provisions.

The Tribunal considered the applicant's passport and his oral evidence, finding him to be a Fijian national. It noted that a decision-maker is not required to accept all allegations uncritically and must assess claims against independent evidence. The Tribunal found that the applicant's claims of economic hardship due to an inability to find employment did not constitute "significant harm" as defined in s 36(2A) of the Act, nor did they amount to persecution for the reasons outlined in s 5J(1)(a). The Tribunal also considered the possibility of relocation within Fiji, which was not ruled out by the applicant's evidence.

The Tribunal affirmed the decision not to grant the applicant a protection visa, concluding that he did not satisfy the criteria under s 36(2) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The applicant, a [age]-year old male and citizen of Fiji born in [Town 1], claimed to have last entered Australia in December 2020. He applied for a protection visa on 4 November 2023.CLAIMS AND EVIDENCEEvidence given to the Department The applicant provided a copy of the bio page of his Fijian passport issued on [date] 2014. In response to a question on the protection visa application form asking whether he had experienced past harm in Fiji, the applicant answered ‘No’. In his written protection visa application the applicant otherwise claimed that:i.he came to Australia through the Pacific Labour Scheme to work in the farm. His term is expiring soon and there is no extension of contract which is the reason he was applying for a protection visa; ii.his future looks bleak and he needed to work in Australia in order to support his family in Fiji; iii.life in Fiji is hard and only those people that are qualified get to find a job whereas people like him are left behind; iv.the rich are getting richer and the poor are getting poorer in Fiji;v.if given an opportunity in Australia, he can support his family in Fiji;vi.he could not relocate in Fiji because it is a small island nation where people know each other and moving is not an option;vii.he won’t be able to find a job in Fiji; andviii.Australia offers a greater opportunity for him in finding a job in which he can support his family in Fiji. The Department’s delegate did not invite an applicant to attend an interview. The delegate found that the applicant’s claim that he would experience economic hardship in Fiji as a result of being unable to obtain employment did not relate to any of the reasons in s 5J(1)(a) and there was no other information to suggest that he would be subject to harm on his return to Fiji for one or more of those reasons. There was also no other information to suggest that the applicant would be unable to obtain employment for one or more of those reasons. The delegate was not satisfied that the applicant was a refugee as defined in s5H(1) of the Act. Accordingly, he found that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. In respect of the complementary protection criterion, the delegate found that the applicant’s claims to experience economic hardship as a result of being unable to obtain employment did not amount to being arbitrarily deprived of his life, having the death penalty carried out on him or being subjected to torture. The delegate further found that the economic hardship the applicant claimed to fear did not involve an act or omission by a perpetrator whereby the infliction of the requisite level of pain, suffering or humiliation was intentional. The delegate found that any economic harm would not amount to significant harm in s 36(2A)(a) to (e). The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there was a real risk the applicant would suffer significant harm as defined in s 36(2A) of the Act. He was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations as provided for in s 36(2)(aa) of the Act.

Decision

Reasons for decision

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.R GuemyMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

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 Tribunal has considered the copy of the applicant’s passport and his evidence given at hearing on 3 June 2024 and finds that he is a Fijian national. The Tribunal finds that Fiji is the applicant’s country of nationality for the purposes of s 5H of the Act and the receiving country for the purposes of s 36(2)(b) of the Act. The Tribunal has considered the applicant’s written claims, submissions and his oral evidence given to the Tribunal at hearing on 3 June 2024. When determining whether an applicant is entitled to protection in Australia, a decision maker is required to make findings of fact on the applicant’s claims that he or she is owed protection obligations. This process may involve an assessment of the credibility of the applicant and his or her other claims. When assessing credibility, a decision maker must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those applicants who are generally credible, but are unable to substantiate all of their claims. However, a decision maker is not required to accept uncritically any and all allegations made by an applicant,[1] nor is it necessary for a decision maker to have rebutting evidence before he or she can find that a particular factual assertion by an applicant has not been made out.[2] Nor is a decision-maker required to accept claims which are inconsistent with the independent evidence regarding the situation in an applicant's country of nationality.[3][1] Randhawa v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 592[2] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 347[3] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62