2403009 (Refugee)

2403009 (Refugee) [2024] AATA 1972 (24 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr John Benjamin Maurice Vevers (MARN: 1067816)
CASE NUMBER:  2403009
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Linda Pearson
DATE:24 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 24 May 2024 at 10:29am
CATCHWORDS
REFUGEE – Protection Visa – Fiji – fears of returning to Fiji as a single parent with no support from family or friends – applicant declined hearing invitation – claims are made in general terms and are unsubstantiated – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2
CASES
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
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 is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 February 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 11 October 2023. The applicant [Ms A] first arrived in Australia on a student visa on [date] April 2018, departing on [date] December 2018 and returning on [date] January 2019, departing again on [date] December 2019 and returning on [date] February 2020. The applicant [Master B] is her son, born in Australia on [date].
The applicant [Ms A]’s claims for protection are based on fears of returning to Fiji as a single parent with no support from family or friends. The applicant [Master B] does not have his own claims.
The Department delegate was satisfied, based on the copy of her passport provided to the Department, that [Ms A] is a citizen of Fiji. Based on the copy of his birth certificate, the delegate was satisfied that [Master B] was born in Australia to parents born in Fiji, and that he is a citizen of Fiji. The delegate refused to grant the visas on the basis that the claims lacked substance and detail, and the applicant had not provided a substantial response to a request for further information. The delegate did not find the claims to be credible, and so was not satisfied that the applicant [Ms A] was a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act. The delegate was satisfied that the applicant [Master B] was a member of the family unit of [Ms A]. Having found that [Ms A] did not meet the criteria in s 36(2)(a) or (aa), he did not satisfy the criteria in s 36(2)(b) or (c) of the Act; and as he had not raised his own claims for protection, the delegate found that he did not satisfy s 36(2)(a) or (aa) of the Act.
The applicants applied to the Tribunal for review on 21 February 2024, providing a copy of the Department decision record and notification, a copy of [Ms A]’s passport biodata page, and a copy of [Master B]’s birth certificate.
On 15 March 2024 the Tribunal wrote to the applicants advising that it had considered all the papers relating to the application, but was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 24 May 2024.
The applicants’ representative responded on 18 March 2024 advising that [Ms A] would appear at the hearing, requesting a Fijian interpreter, and that [Master B] would not appear. The representative advised that pre-hearing submissions including a statement would be provided to the Tribunal.
On 16 May 2024 the applicants’ representative advised the Tribunal that [Ms A] did not wish to attend the hearing, and requested the Tribunal to make a decision on the papers before it. This matter has therefore been determined on the evidence available to the Tribunal.
The applicants were represented in relation to the protection visa application and the review.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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 issues in this case are whether there is a real chance, if the applicant [Ms A] returns to Fiji, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm. The applicant [Master B] does not have his own protection claims.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant [Ms A] provided a copy of the bio data page of her Fijian passport to the Department and to the Tribunal. In the absence of any evidence to the contrary the Tribunal finds that she is a citizen of Fiji.
The applicant [Master B] does not have a passport. A copy of the Victorian birth certificate of [Master B] was provided to the Department and to the Tribunal, showing that his parents are [Ms A] and [name], both born in Fiji. The delegate accepted that he is a citizen of Fiji, and found that he is a member of the family unit of [Ms A] as defined in reg 1.12 of the Migration Regulations 1994 and therefore is also a member of the same family unit as defined in s 5(1) of the Act. In the absence of any evidence to the contrary the Tribunal accepts those findings.
The Tribunal finds that Fiji is the receiving country for the purpose of assessing the claims for protection under the refugee criterion and the complementary protection criterion.
Background and applicants’ claims
According to the protection visa application, [Ms A] was born in [Suva] Fiji on [date]. Her parents, brother and three sisters are Fijian citizens. Her father is currently residing [overseas]; her mother and siblings are residing in Fiji. She provided addresses in Fiji from the date of her birth until 2013, then an address in [Country 1] from January 2014 to December 2017, and then an address in Victoria between December 2017 to December 2022. Her current address is in [New] South Wales. She stated that her ethnicity is Fijian, and her religion as Christian.
[Ms A] stated in the application that she had travelled for study to [Country 1] in 2014, 2015, 2016 and 2017. She has had previous employment as a [occupation] and as a [occupation] at a number of hospitality venues in [Country 1] and Australia. She provided details of her education, including having completed her high school education in [Country 1], and provided details of courses undertaken at a number of tertiary institutions in Victoria and [Country 1].
In her protection visa application [Ms A] stated that she has never married. She stated that she had departed Fiji in order to study in [Country 1] and Australia, and while in Australia gave birth to a child. She stated that she fears that if she returns to Fiji now she will have no support from family or friends. She will return as a single parent and believes she will be discriminated against due to those circumstances. She stated that the police and security forces in Fiji will not afford her any support.
As noted above, the delegate referred to the Department request made on 24 November 2023 inviting the applicant to provide additional information about her claims. That letter advised that the statement of claims lacked substantiating details, and advised that in order to be satisfied that the claims for protection were genuine more information was required, including about what would happen if returned to Fiji, why they would not receive assistance in Fiji and what harm the applicant would face in Fiji due to discrimination as a single parent. The applicant was granted an extension of time, and no further information was provided.
The applicant [Ms A] has not provided any further information or submissions to the Department or after lodging the review application.
Findings and reasons
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is well-founded, or that it is for the reason claimed. The fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm said to be feared amounts to significant harm. In considering whether all the statutory elements are established, the Tribunal is not required to accept uncritically any or all the allegations made by the applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70. In considering the review application, the Tribunal has regard to s5AAA of the Act, which states that it is the responsibility of the applicant to specify all particulars of the claim for protection and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to establish or assist in establishing the claim.
In this case, the applicant [Ms A]’s claims are made in general terms and are unsubstantiated. She did not provide any additional evidence to the Department, or to the Tribunal, to support those claims. As she has requested that a decision be made on the papers without a hearing, the Tribunal was unable to obtain further detail about her claims or test their veracity.
There is insufficient information before the Tribunal in relation to how [Ms A] would be discriminated against in Fiji as a single parent, and what form any such discrimination might take. There is insufficient detail as to the nature of the harm she fears, whether the harm she fears amounts to serious harm, and whether there is a real chance or a real risk that she will experience serious harm or significant harm if removed to Fiji. She has submitted insufficient information regarding the availability of any support, financial or otherwise, from the father of her child or her family members in Fiji, or from government welfare support services; or the availability of employment should she return to Fiji, that might address any feared harm.
The evidence presented by the applicant [Ms A] to the Department is not sufficiently detailed to enable the Tribunal to be satisfied that she faces a real chance of persecution in Fiji or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to Fiji, there is a real risk that she would suffer significant harm. Given this lack of information, without more detail, it is difficult to know what significance the Tribunal can attach to her assertions.
In view of the insufficient information and lack of detail contained in the claims made by [Ms A] the Tribunal is not satisfied that she has a well-founded fear of persecution for reasons for race, religion nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied, on the evidence before it, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk of significant harm of the kind provided in s 36(2A)(a), (b), (c), (d) or (e).
The Tribunal is not satisfied that [Ms A] is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). There is no suggestion that she satisfies s 36(2) of 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, [Ms A] does not satisfy the criterion in s 36(2).
The applicant [Master B] has no protection claims of his own, and he does satisfied the criteria in s 36(2)(a) or (aa). While the Tribunal accepts that he is a member of the same family unit as [Ms A], the Tribunal has found that she does not meet the criteria in s 36(2)(a) or (aa). Accordingly, he does not meet the criterion in s 36(2)(b) or (c); and he does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Linda Pearson
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.
…

[2024] AATA 1972

24 May 2024

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Immigration

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Judicial Review

Procedural Fairness

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