2402488 (Refugee)

[2024] AATA 3553

2402488 (Refugee) [2024] AATA 3553 (29 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402488

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Noelle Hossen

DATE:29 July 2024

PLACE OF DECISION:  Perth

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

Statement made on 29 July 2024 at 4:03pm

CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions and government mismanagement – working in Australia to provide for family in home country – working visa accidentally cancelled – no fear of harm – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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 22 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, applied for the visa on 16 November 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. The applicant appeared before the Tribunal on the 8 July 2024 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

   BACKGROUND FACTS

10. The applicant was born on [Date] in Fiji. He said that he travelled to Australia on a Visitor Visa alone in 2018.

11. He arrived in Australia in 2020 to work on a Visa of the Pacific Labour scheme (403 Visa).

12. He made an Application for a Protection Visa on the 16 November 2023.

13. The issue in this case is that the applicant wishes to remain in Australia to provide for his family. He said that he has been married since 2011 and has [children] who are aged [Ages] years of age. His wife and children live in Fiji and are cared for by his wife who does not presently work. His wife lives in her family’s home. Her brothers live at the home. Her father recently passed away. Her mother lives 2 hours away and rents accommodation as she has a job as [an occupation 1] and allows her children to remain living in the home.

14. The Tribunal accepts the evidence as set out in the 4 preceding paragraphs.

    Receiving country

15. The applicant travelled to Australia on a Fijian passport, a copy of which has been provided to the Tribunal by the applicant. He has at all times stated that he is a citizen of Fiji, and he has been assessed on that basis by the Department. The Tribunal finds that he is a Fijian citizen and has assessed his claim against Fiji as his country of nationality and the receiving country.

    The applicant’s claims for protection.

16. In his application for Protection filed on the 16 November 2023 the applicant’s claims for protection are summarised as follows:

    The applicant came to Australia under the Pacific Labour scheme because they were struggling to financially support their family in Fiji.

    The applicant is unable to return to Fiji due to an increase in economic crises and lack of employment opportunities.

    The applicant did not relocate to another area of Fiji because Fiji is a small continent where economic struggles are not localised to one area due to previous government spending and mismanagement.

    If returned to Fiji, the applicant will not be able to obtain adequate employment and financially support their family.

    The authorities in Fiji will not assist the applicant because they do not care for Fiji residents.

    Evidence at the hearing

17. The applicant provided several documents to the Tribunal on the day of the hearing including but not limited to:

    Submission from his wife

    CV setting out his work history.

    Job offers.

18. He said that he had not worked since the 3 June 2024 as his visa was accidentally cancelled by the Department, but he had accepted a job offer [and] was planning to start work the following day after the hearing.

19. The Tribunal accepts that the applicant works hard and that he has the necessary skills for employment as [an occupation 2].

20. He said that he sends $1000 AUD per week to his wife in Fiji who distributes the funds. He was asked if he had any savings and he said that he did not have any. Apparently there have been funerals to pay for recently so the funds have dissipated. He said that his father-in-law died 2 months ago and that his funeral cost $3000AUD.

21. He said that his siblings do not work and are looking for work. He undertook a Course to be [an occupation 2] which was paid for by his father -in-law and it is for this reason that he was able to be part of the Pacific Labour Scheme to work in Australia. He said he had some experience as he worked as an “attachment” in Fiji before he came. He explained that it is like being an apprentice, but you do not get paid.

22. He said that he came to Australia on a Visitor Visa, on his own for a holiday in 2018. He came back in 2020 as part of the Pacific Labour scheme and he did not return. He had a 403 Visa until 2023 and then applied for a Protection Visa. He had wanted to apply for a Student Visa to qualify as [an occupation 2] to work in Australia, but his family could not be financially supported as he would only be able to work for 20 hours a week. It was for this reason that he made the Application for Protection. He did not want to go back to Fiji.

23. He said that he has [brothers and sisters], and they all live in Fiji. He said one of his sisters has a job. His youngest sibling is [Age].

24. When he came to Australia and was accepted for the Pacific Labour scheme, he said that the job did not last long as there was a misunderstanding. They had moved out of the workplace and travelled to Sydney as they were advised that they would not have work for 2 weeks. He moved to work as [an occupation 3] for a [workplace] and he continued to work there until November 2023.

25. He moved to Western Australia so that he could work in the [work sector] January 2024 he was employed under contract to work as [an occupation 2].

26. He said that if he returned to Fiji, he would have to look for work and it may take weeks or months. He said he felt that he had no choice as his family are financially dependent on him.

    .

    Country information

27. The World bank classifies Fiji as an upper middle-income country. Fiji is one of the largest in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours.

28. Tourism accounted for about 40 per cent of the pre- covid -19 economy; the pandemic caused significant disruption. According to the Asian Development bank, GDP growth was negative 15.7 per cent in 2020.Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially fruits and vegetables, sugar, and kava, is important to the economy but vulnerable to cyclones.

29. About 30 per cent of the population was living in poverty in 2019, according to World Bank data but estimates of poverty rates vary and the full impact of the Covid-19 pandemic is not known. According to the International Labour organisation (ILO), subsistence farming and kin- based distributions leads to lower rate of extreme poverty than might otherwise be expected.

    Refugee assessment

30. By the applicant’s own admission at the hearing, he stated that he did not fear harm if he returned to Fiji. He said that he expects that he will have a job when he returns to Fiji, but it will take some time to find one. The applicant has studied for a trade and now has the necessary experience to find employment. Furthermore, the applicant can live in the home of his mother-in-law who owns her home as his wife lives there presently.

31. The Tribunal also relies on the country information that suggests that Fiji is an upper middle- income country and its per capita gross domestic product is much higher than most Pacific neighbours.

32. It does not appear that the essential and significant reason for any harm feared by the applicant is for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by s 5 J (1) (a).

33. Considering the applicant’s claims, the Tribunal finds that there is not a real chance that the applicant will suffer persecution now or in the reasonably foreseeable future in Fiji.

34. For all these reasons the Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reasons of his race, religion, nationality, membership of a particular social group or political opinion if he returns to Fiji, now or in the reasonably foreseeable future. Therefore, the applicant does not meet the criteria as set out in s 36(2) (a).

    Complementary protection assessment

35. 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).

36. In considering whether the economic harm that the applicant fears he would suffer in Fiji would amount to significant harm for the purposes of the complimentary protection criterion in s36(2) (aa), the Tribunal has had regard to the exhaustive definition of “significant harm” in s 36(2A) as follows:

    (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

    © 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.

37. The risks to the Applicant because of the Fijian economy would appear to be one faced by the people living in that country and not specifically the applicant.

38. The applicant does not claim that any economic harm that he might experience is not because of an act or omission by the government, or private individual or other entity such as could constitute arbitrary deprivation of life; cruel or inhuman treatment or punishment; degrading treatment or punishment or torture. The applicant did not claim that there is a risk that the death penalty will be carried out upon him as set out in the definition of “significant harm”.

39. He also confirmed that he will be able to find employment.

40. The applicant did not state that the economic harm that he might suffer in Fiji would be because of the intentional or deliberate act or omission of a third person or persons such as could constitute significant harm.

41. Considering the applicant’s claims, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that the non- citizen will suffer significant harm.

    CONCLUDING PARAGRAPHS.

42. 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).

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

44. 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

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

    Noelle Hossen
    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.

    …