2403268 (Refugee) - [2024] AATA 3110

2403268 (Refugee) [2024] AATA 3110 (2 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2403268
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rachelle Johnston
DATE:2 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 May 2024 at 3:17pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – experienced domestic violence from her mother-in-law – economic situation in Fiji – fear of verbal abuse from the Fijian community – victim of a sexual assault – mental health concerns – 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, 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 is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 January 2024 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 Fiji, applied for the visa on 4 October 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.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
In her protection application submitted on 4 October 2023 the applicant provided the following, among other things:
·     She was born in [year] in [City 1].
·     She is married. She has one son from a prior relationship who was born in [year].
·     She has two brothers and one sister in Fiji. Her parents are Fijian.
·     For work in Fiji, she was a [occupation] and a [occupation].
·     She speaks, reads, and writes Fijian and English.
·     Prior to travelling to Australia, she travelled to [Country 1] on multiple occasions across 2015 and 2016.
The applicant makes the following claims in her protection visa application form:
·     She left Fiji due to threats from her in-laws. She faces and experienced domestic violence from her mother-in-law because she married her son. Because she has a child her mother-in-law despised her even more.
·     She experienced verbal and physical abuse from her brothers for simply being a single mother and not having a job. They tried to marry her off to older men, but she ran away many times. She believed marrying her husband would ease off some of the abuse, but she felt like she just left one situation and walked into another.
·     Before marrying her husband when they were still courting, she would run away to other extended…

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 2403268 (Refugee)

Details

AGLC: 2403268 (Refugee) [2024] AATA 3110
Case: [2024] AATA 3110
Decision Date: 2 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to refuse a Fijian citizen a protection visa. The applicant claimed to have experienced domestic violence from her mother-in-law, verbal and physical abuse from her brothers, and a sexual assault, leading to mental health concerns and a fear of mistreatment and harm if returned to Fiji.

The Tribunal was required to determine whether the applicant is a person in respect of whom Australia has protection obligations, specifically considering whether she faces a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji, pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth). This involved assessing the applicant's claims of past harm and her fear of future harm in Fiji, in light of relevant country information and guidelines.

The Tribunal found the applicant's evidence to be largely consistent, despite some disorganised delivery due to the nature of her past experiences. However, after considering all the evidence, including the applicant's stated reasons for leaving Fiji and her aspirations in Australia, the Tribunal was not satisfied that she had established a real chance of suffering significant harm upon return. The Tribunal concluded that Australia did not have protection obligations towards the applicant under section 36(2)(aa) of the Act.

Consequently, the Tribunal affirmed the delegate's decision, finding that the applicant is not a person in respect of whom Australia has protection obligations under section 36(2)(a) or section 36(2)(aa).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant who claims to be a citizen of Fiji, applied for the visa on 4 October 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. CLAIMS AND EVIDENCEClaims and evidence before the Department Protection visa application In her protection application submitted on 4 October 2023 the applicant provided the following, among other things: · She was born in [year] in [City 1]. · She is married. She has one son from a prior relationship who was born in [year]. · She has two brothers and one sister in Fiji. Her parents are Fijian. · For work in Fiji, she was a [occupation] and a [occupation]. · She speaks, reads, and writes Fijian and English. · Prior to travelling to Australia, she travelled to [Country 1] on multiple occasions across 2015 and 2016. The applicant makes the following claims in her protection visa application form: · She left Fiji due to threats from her in-laws. She faces and experienced domestic violence from her mother-in-law because she married her son. Because she has a child her mother-in-law despised her even more. · She experienced verbal and physical abuse from her brothers for simply being a single mother and not having a job. They tried to marry her off to older men, but she ran away many times. She believed marrying her husband would ease off some of the abuse, but she felt like she just left one situation and walked into another. · Before marrying her husband when they were still courting, she would run away to other extended family members and hide there. Some family members would not believe her when she shared what she was enduring so they would turn her away. She would also seek help from friends or churches and anyone who would help her. She would seek shelter, food, clothes, and money for herself and her son and even do odd jobs here and there. · She tried to move to extended family members but did not stay long as many of her family were living on crops and had one income earner. Finance was always the biggest issue in nearly every house she went to. She and her son were unable to be away for too long as her husband and her weren’t married at the time. They were not allowed to leave together. · She does not have a house of her own with her husband and she has to live in the same house with her mother-in-law as her husband cares for her. Her son stays with church members who are considered family, but their home is overcrowded. She has not spoken to her brothers in years as they have both said they never wanted to speak to her or see her or her child again. Even though they lived in the same country they never saw each other as she does not want a repeat of history that was too traumatic for her. · If she returns to Fiji she will be mistreated and harmed. She will experience more verbal and physical abuse. Her own brothers will be angry as she is in a country where every voice is heard, and she is not depending on anyone financially. That will make her brothers angrier as they know she does not need their opinions as she is earning her own money and caring for her son and husband. The minute she arrived in Australia her brothers visited her husband regarding why they were not told she came to Australia. For the sake of her mental health, she had to block them on social media. It is every Fijian woman’s worst nightmare trying to make a better life but family with their high demands and verbal abuse was something she did not want to return to. · When the abuse first started, she tried to confide in a cousin of hers about possibly going to the police, but she advised it would only make things harder for her. Her family could try to twist her words and get her son taken away from her as they despised him. Her son struggled in school, so she tried her best to keep him in school, but they were always moving around. With the new government she has no clue if the authorities would protect her. · If she relocates in Fiji she will be mistreated and harmed. She will experience more verbal and physical abuse.

Decision

Reasons for decision

The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa). Conclusion 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).

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision. Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Nationality The applicant claims to be a citizen of Fiji and provided an uncertified copy of her Fijian passport and Birth Certificate to the Department. The delegate was satisfied that the applicant is using her own identity and that she is a citizen of Fiji. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Fiji and Fiji is her receiving country for the purposes of assessing her claims for protection. Analysis, reasons and findings The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In the hearing, the Tribunal discussed the applicant’s protection claims, what she claims occurred in Fiji, why she fears returning to Fiji, and her work, family, education, travel, and residential history. The applicant described the past harm she experienced in Fiji from members of her community, her family as a young woman, her mother-in-law, and disclosed a sexual assault that occurred when she was younger. The Tribunal does not share the delegate’s credibility concerns and found the applicant’s evidence across her written application, departmental interview, supporting documents, and oral evidence at hearing to be largely consistent. Whilst the applicant’s evidence at hearing was not always given in a sequential way and her answers to questions at times referenced other claims to those being discussed at the time, the Tribunal finds this is to be expected in the context of her past abuse and the nature of her claims. The Tribunal discussed with the applicant why she travelled to Australia in late January 2020 and why she fears returning to Fiji. She explained she saw Australia as an opportunity to work, support her family, change the way people perceived her in Fiji, and for her to flourish and get something better in life.