2402501 (Refugee) - [2024] AATA 3905

2402501 (Refugee) [2024] AATA 3905 (4 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  2402501
2404865
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Gregory Hanson
DATE:4 June 2024
PLACE OF DECISION:  Melbourne
DECISION 2402501:  In respect of Tribunal file reference 2402501, the Tribunal affirms the decision not to grant the applicant a protection visa.
DECISION 2404865:  In respect of Tribunal file reference 2404865, the Tribunal does not have jurisdiction in this matter.

Statement made on 04 June 2024 at 2:25pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – political opinion – supporter of Bainimarama and the Fiji First Party – to fear harm in the form of witchcraft – race – iTaukei ethnicity – religion – Assemblies of God (AOG) church – fears harm from people in his home village – harm would not, individually or cumulatively, amount to serious harm in his particular circumstances – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji – no jurisdiction in relation to second application – decision under review affirmed

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
APPLICATION FOR REVIEW

This decision record concerns two applications for review a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Republic of Fiji (Fiji), applied for the visa on 30 November 2023. The delegate refused to grant the visa on the basis that, firstly, the applicant did not meet the refugee criteria in s 36(2)(a) of the Act because the delegate was not satisfied that there was not a real chance that the applicant would suffer persecution in Fiji. Secondly, the delegate found the applicant did not meet the complementary protection criteria in s 36(2)(aa) because there was not a real risk of the applicant facing significant harm in Fiji.
On 15 February 2024, lodged an application (First Review Application) with the Tribunal for merits review of the delegate’s decision. This review application was allocated file reference 2402501 by the Tribunal.
On 13 March 2024 the applicant lodged a second review application (Second Review Application) with the Tribunal for merits review of the same delegate’s decision dated 14 February 2024 to refuse to grant him a protection visa. This review application was allocated file reference 2404865 by the Tribunal.
The applicant was not represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule…

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.

Continue reading 2402501 (Refugee)

Details

AGLC: 2402501 (Refugee) [2024] AATA 3905
Case: [2024] AATA 3905
Decision Date: 4 June 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant a protection visa to an applicant from Fiji. The applicant claimed to fear harm due to his political opinion as a supporter of Bainimarama and the Fiji First Party, and also alleged fears related to his iTaukei ethnicity and Assemblies of God (AOG) church affiliation. The applicant contended that he faced harm from people in his home village, stemming from political tensions and a perceived nationalist mindset among the majority iTaukei population, particularly those affiliated with the Methodist Church.

The court was required to determine whether the applicant had established a well-founded fear of persecution for reasons of political opinion, race, or religion, or whether he faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji. Specifically, the court needed to assess if the alleged harm, individually or cumulatively, would amount to serious harm as defined by the Migration Act 1958, and whether effective protection measures were available in Fiji. The court also had to consider its jurisdiction in relation to a second application filed by the applicant.

The court found that the applicant's claims, even when considered cumulatively, did not establish a real chance of suffering serious or significant harm in Fiji. The court noted that while the applicant expressed fears of harm from individuals in his village due to his political stance, he also indicated that the police would offer protection, albeit not 24 hours a day. Furthermore, the court considered that the applicant could potentially relocate within Fiji to an area where he would not face such risks, and that the alleged risks were not faced by the population generally but were more personal. Regarding the second application, the court determined it lacked jurisdiction as the delegate's decision had already been reviewed by the Tribunal.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa. In relation to the second application, the Tribunal found it did not have jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.CLAIMS AND EVIDENCEMandatory 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Before the Department The information provided to the Department in support of his claims to engage Australia’s protection obligations was limited to that contained in his protection visa application form lodged online with the Department on 30 November 2023. That online protection visa application form records that the applicant did not receive any assistance in completing the form, and that he could speak, read and write English. In that form, it is recorded that the applicant claimed as follows:a.In relation to why he left Fiji, his claims included as follows:i.He was a staunch supporter of Bainimarama and the FijiFirst Party in the lead up to Fiji’s first General Elections in 2014. ii.Most native Fijians are nationalists upholding the Chiefly system and the Great Council of Chiefs and they have the idea that Fiji should be controlled by native Fijians. iii.He loves Bainimarama because as a Christian, he (the applicant) believes in equality and that all Fijians are on a level playing field. This led to friction, verbal abuse, threats and even the stoning of his family’s home in his village, because of his political stance and voice. iv.Even though the Bainimarama Government led Fiji for the last 16 years, those anti-Bainimarama Fijians still seek revenge on those who support his government. b.In relation to whether he experienced harm in Fiji, his claims included:i.He and his family suffered from verbal abuse, threats of death and even the stoning of their family house in his village at [Village 1] in [a town]. ii.Anywhere you move to will have the same because the same tension exists everywhere. iii.The Methodist Church was in full support of the Rabuka 1987 coup and nearly all native Fijians are Methodists. So, Fijians who know that you are a Bainimarama supporter will gang up and try and harm or threaten you to give up your support for Bainimarama. Living in this kind of atmosphere and environment brings out constant fear and mentally affects a person.c.Regarding whether he sought help in respect of the harm he suffered, he claimed:i.Yes - the police were notified but when they arrived, the culprits had disappeared. They assure protection but fact is, they are not present when we need them.d.When asked whether he moved or tried to move to another area of the country to seek safety, he stated as follows:i.There is no point in moving as your enemies are everywhere. The same will happen when he speaks out or promotes the Bainimarama Government. Fiji is a small place and the majority native Fijians are Methodists with a nationalistic mindset. Wherever you run to and hide in Fiji, once they know that you are an enemy politically; your nightmare continues.e.In respect of what he thought would happen if he returned to Fiji, his claimed as follows:i.Right now, Bainimarama has lost the 2022 General Elections and the Rabuka Government has taken over. The native Fijians and the Methodist Church are all rejoicing, and they are bringing back the Great Council of Chiefs. The Rabuka Government are making moves to put Bainimarama out of Parliament and into prison for the 2006 Clean Up Campaign. This move will slowly flow and affect all those who are Bainimarama supporters and it is best to stay in Australia, enjoy the freedom and peace of mind.f.In response to whether he would be harmed or mistreated on return to Fiji, he stated:i.As mentioned above, the Rabuka Government is doing its own clean-up campaign, starting with Bainimarama the ex-PM, all the ministers and supporters. They want him to be put in prison for ousting the Qarase Government in 2006 in his Clean Up Campaign. This retaliation will trickle down to Bainimarama supporters and that is why; it is best to remain in Australia, until everything cools down.g.Regarding whether he thought the authorities of Fiji would protect him if he returned, he responded:i.Yes, the police will protect but as mentioned before, they are not there by your side 24 hours a day. As mentioned, the majority of native Fijians are nationalists and support the Rabuka manifesto. They are also present in the authorities who are supposed to protect you. It is best not to take the risk. Staying in Australia is the best option.

Decision

Reasons for decision

As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal finds in respect of the Second Review Application that it no longer has jurisdiction in relation to that decision.DECISION In respect of Tribunal file reference 2402501, the Tribunal affirms the decision not to grant the applicant a protection visa. In respect of Tribunal file reference 2404865, the Tribunal does not have jurisdiction in this matter.Gregory HansonMemberATTACHMENT - 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

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