2401954 (Refugee)

Case [2024] AATA 3122

2401954 (Refugee) [2024] AATA 3122 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401954

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wayne Pennell

DATE:24 April 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 24 April 2024 at 1:24pm

CATCHWORDS

REFUGEE – Protection Visa – Fiji – applicant failed to respond to the requested information  – inflation and the rising cost of living in Fiji – economic situation in Fiji – identical claims – has not provided any evidence, information or material to support the claims – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65,424, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

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

  1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

    [1]The delegate’s decision of 2 February 2024.

  2. The applicant, who claims to be a citizen of Fiji, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Fiji, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act,[3] and therefore he was not a person in respect of whom Australia had protection obligations.[4]

    [2]The applicant’s application was received by the Department on 9 November 2023..

    [3]Migration Act 1958 (Cth), s 5H.

    [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

  3. The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] At a subsequent time, and because the applicant had not provided the Tribunal with a copy of the delegate’s decision record, the Tribunal wrote to him pursuant to section 424A of the Act. He was asked to respond to the Tribunal by 5 April 2024, and because he did not respond to the Tribunal within the specified and appropriate timeframe, the Tribunal decided to proceed to make a decision in respect to his Protection visa application without taking any further steps to obtain his response of comments. This is explained in greater detail later in these Reasons.

    [5]The applicant’s review application was filed with the Tribunal on 6 February 2024.

    CRITERIA FOR A PROTECTION VISA

  4. The measures for…

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2401954 (Refugee) [2024] AATA 3122
Case
[2024] AATA 3122
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa for Australia. The applicant, who had arrived in Australia on a temporary work visa, lodged his protection visa application shortly before his temporary visa expired. The core dispute revolved around the applicant's claims of a well-founded fear of persecution if returned to Fiji, and the Department's refusal of his application.

The Tribunal was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, and whether Australia had protection obligations towards him. Specifically, the court had to assess the applicant's claims regarding the economic situation in Fiji, including inflation and the rising cost of living, his alleged inability to relocate within Fiji, the risk of harm from rampant criminal activity, and the purported inability of Fijian authorities to offer protection. The Tribunal also had to consider the applicant's failure to provide requested information and evidence to substantiate his claims.

In its reasoning, the Tribunal applied the principles outlined in the Migration Act 1958 (Cth) and relevant Ministerial Directions and Guidelines. It noted that while a review hearing is inquisitorial, the onus remains on the applicant to provide sufficient evidence to establish their claims. The Tribunal found that the applicant had failed to provide any corroborating evidence for his assertions about the dangers in Fiji or the government's inability to protect its citizens. Weighing the applicant's uncorroborated claims against available country information, the Tribunal gave greater weight to the latter, concluding that the applicant had not demonstrated a well-founded fear of persecution.

Consequently, the Tribunal affirmed the delegate's decision to refuse the protection visa application. The applicant was found not to meet the criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.BACKGROUND AND APPLICANT’S EVIDENCE [20]Migration Act 1958 (Cth), s 499.Background, application and claims The applicant’s migration history held by the Department shows that on 19 January 2023 he was granted a Temporary Work (International Relationship) (subclass 403) visa (‘work visa’). He arrived in Australia on [date] February 2023 subject to that work visa, and that visa was valid until [date] November 2023. On [date] November 2023, which is three days prior to when that work visa was due to expire, the applicant lodged with the Department an application for a protection visa. Very little is known about the applicant apart from what he disclosed in his application. He is able to read, write and understand the English language, and although he does not list within his application any details about his family in Fiji, he did disclose that he is in touch with them by telephone once a month. He nominated that he had not been employed in Fiji, and was unemployed at the time that he made his application for a Protection visa. There is indication that his family had financially supported him when he studied, although he did not nominate that those studies were after he completed his High School education in 2010. Extracted from the applicant’s Protection visa application and inserted below into these Reasons are the claims he expressed as to why he has a well-founded fear of persecution if he returned to Fiji. On 14 November 2023, the Department wrote to the applicant and acknowledged receiving his application. In that letter, he was invited to an appointment with the Department on 3 January 2024. The purpose of that appointment was for him to provide his personal identifying particulars. The letter also reminded the applicant that as his application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged his application. Further to that, it was suggested to him that he may take with him to the scheduled appointment any additional information he would like considered by the Department. Although he attended the appointment, he did not provide any additional information, evidence or material to the Department. After undertaking an assessment of the applicant’s application, on 2 February 2024 the delegate made a decision to refuse the application. The applicant was advised of that decision on the same day. In arriving at the decision, the delegate assessed that the applicant’s claims were:(a)He left Fiji to relocate to a safer environment with a better economy; (b)His life is affected by inflation and the rising cost of living in Fiji while having to support his parents and siblings; (c)He did not relocate to another area of Fiji because he would have faced the same issues; (d)If he returned to Fiji, his safety will be affected by rampant criminal activity in Fiji; (e)The Fiji authorities are unable to offer him protection, and there are many complaints about government bodies in Fiji; and (f)There was no area in Fiji where he would not face harm or mistreatment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

When an assessment is undertaken of the country information and then weighed against those claims made by the applicant about the Fiji government and police not being able to protect its citizens, so far as the country information available to the Tribunal is concerned, the Tribunal is satisfied that greater weight should be placed upon the credible and reliable information about Fiji’s ability to protect its citizens as opposed to the uncorroborated claims made by the applicant. CONCLUSION AND REFUGEE FINDINGS The very nature of a review hearing before the Tribunal is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it. The Tribunal is to consider all of that material, information and evidence afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Tribunal is not bound by technicalities, legal forms or rules of evidence; and must act according to substantial justice and the merits of the case.[32] [32]Migration Act 1958 (Cth), s 420. Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, however it has no obligation to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[33][33]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28]. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[34] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[35][34]Migration Act 1958 (Cth), s 5AAA.[35]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons

Ratio Decidendi

Legal Principle Established

Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19][19]Migration Act 1958 (Cth), s 36(3).MANDATORY CONSIDERATIONS In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.BACKGROUND AND APPLICANT’S EVIDENCE [20]Migration Act 1958 (Cth), s 499.Background, application and claims The applicant’s migration history held by the Department shows that on 19 January 2023 he was granted a Temporary Work (International Relationship) (subclass 403) visa (‘work visa’). He arrived in Australia on [date] February 2023 subject to that work visa, and that visa was valid until [date] November 2023. On [date] November 2023, which is three days prior to when that work visa was due to expire, the applicant lodged with the Department an application for a protection visa. Very little is known about the applicant apart from what he disclosed in his application. He is able to read, write and understand the English language, and although he does not list within his application any details about his family in Fiji, he did disclose that he is in touch with them by telephone once a month. He nominated that he had not been employed in Fiji, and was unemployed at the time that he made his application for a Protection visa. There is indication that his family had financially supported him when he studied, although he did not nominate that those studies were after he completed his High School education in 2010. Extracted from the applicant’s Protection visa application and inserted below into these Reasons are the claims he expressed as to why he has a well-founded fear of persecution if he returned to Fiji. On 14 November 2023, the Department wrote to the applicant and acknowledged receiving his application. In that letter, he was invited to an appointment with the Department on 3 January 2024. The purpose of that appointment was for him to provide his personal identifying particulars. The letter also reminded the applicant that as his application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged his application. Further to that, it was suggested to him that he may take with him to the scheduled appointment any additional information he would like considered by the Department. Although he attended the appointment, he did not provide any additional information, evidence or material to the Department. After undertaking an assessment of the applicant’s application, on 2 February 2024 the delegate made a decision to refuse the application. The applicant was advised of that decision on the same day. In arriving at the decision, the delegate assessed that the applicant’s claims were:(a)He left Fiji to relocate to a safer environment with a better economy; (b)His life is affected by inflation and the rising cost of living in Fiji while having to support his parents and siblings; (c)He did not relocate to another area of Fiji because he would have faced the same issues; (d)If he returned to Fiji, his safety will be affected by rampant criminal activity in Fiji; (e)The Fiji authorities are unable to offer him protection, and there are many complaints about government bodies in Fiji; and (f)There was no area in Fiji where he would not face harm or mistreatment.