2407607 (Refugee)

[2024] AATA 4451

2407607 (Refugee) [2024] AATA 4451 (10 October 2024)

Corrigendum

Respondent:     Minister for Home Affairs

Tribunal Number:  2407607

Tribunal:  General Member P Wearne

Place:  Sydney

Date of decision:  10 October 2024

Date Corrigendum Signed:  7 November 2024

Amendment   The following corrections are made to the decision.

Footnote 1 in paragraph 1 should read:

1 A copy of the biodata pages of the applicant’s Fijian passport are held on the Department File.

Statement made on 07 November 2024 at 2:44pm

DECISION RECORD

DIVISION:  Migration & Refugee Division

REPRESENTATIVE:  Ms Katrina Feghali

CASE NUMBER:  2407607

COUNTRY OF REFERENCE:                   Fiji

MEMBER:  Phillippa Wearne

DATE:  10 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2024 at 2:13pm

CATCHWORDS

REFUGEE – protection visa – Fiji – family violence – refusal to renounce land ownership – physical assault – fear of killing – return visit to Fiji – employment – internal relocation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

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.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS BACKGROUND

1. The applicant is [an age]-year-old national of Fiji.1 He most recently arrived in Australia [in] June 2023 as the holder of a Sponsored Family Visitor (Subclass FA 600) visa and lodged an application for a protection visa on 22 August 2023.

2. On 5 April 2024, a delegate for the Minister of Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

CLAIMS AND EVIDENCE

Protection visa application

1. According to his protection visa application, the applicant was born and resided in Suva. He reads, writes and speaks English and Fijian Hindustani. He gives his religion as Sikh.

2. His biological father died when he was 9. His mother remarried. [Brother A] is his brother and [Brother B] is a half-brother. His stepfather, [Mr A], is Fijian.2

3. The applicant completed high school and the first year of a [Course 1] before withdrawing.

4. The applicant states he has worked in a [specified jobs].

5. He made claims for protection in a statutory declaration dated 21 August 2023, which I have summarised as follows:

   ·He fears harm in Fiji from [Mr A], who is violent, controlling, threatening and manipulative.

   ·[Mr A] has been abusive to the applicant and [Brother A] since the inception of the relationship between [Mr A] and the applicant’s mother.

   ·The applicant wanted to pursue further study, but since he was aged 15, [Mr A] made him work so that [Mr A] did not have to work.

   ·The applicant protected his mother from violence perpetrated against her and as a result [Mr A] was violent to the applicant. In May 2014, the applicant was pushed against the wall and was choked when he intervened.

   ·[Mr A] threatened to kill the applicant if he told anyone about the abuse, so the applicant didn’t tell the police about it until the December 2018 incident.

   ·His mother convinced him that the violence was justified to teach and discipline him.

   ·In August 2014 the applicant was threatened with a cane knife by [Mr A] because he wanted to study for an exam.

1 A copy of the biodata pages of the applicant’s Malaysian passport are held on the Department file.

2 Fijians, or iTaukei, are the major indigenous people of the Fiji Islands of Melanesia. The applicant describes [Mr A] as Rotuman Fijian.

·In January 2015 [Mr A] became violent with the applicant’s mother after [Mr A] had been drinking. The applicant intervened and was pushed against the wall, pinned by [Mr A’s] elbow to his throat. [Mr A] threatened to kill him.

·In June 2015, [Mr A] began abusing [Brother A]. The applicant intervened to assist [Brother A]. [Mr A] slapped the applicant, who suffered bruising and pain as a result.

·In December 2018 when his mother was slapped by [Mr A], the applicant intervened and was threatened by [Mr A] with a knife. The applicant reported this to the police who attended and made [Mr A] apologise They did not make a formal complaint. [Mr A] threatened to kill the applicant for reporting him, but his mother calmed [Mr A]. The applicant’s mother warned the applicant that [Mr A] has friends and family in higher places. His mother asked him not to involve the police or the violence would be worse for her.

·The applicant continued to have physical abuse until he left Fiji. He has tried to convince his mother to leave [Mr A] on many occasions.

·The applicant believes that [Mr A] is protected by the police. Domestic violence is not taken seriously by the police. To apply for a domestic violence order, they would have to go through a court process and have support of the police.

·The applicant believes that he can’t return to Fiji or relocate due to his limited financial situation. Fiji is small.

1. The applicant submitted a letter from [Officer A] together with a copy of [Officer A’s] Fiji Police identification card and the biodata pages of his passport. ([Officer A’s] letter is discussed in ‘Analysis, reasons and findings’, below.)

2. Following the Department’s invitation to submit further information to support his claims, the applicant submitted a statutory declaration dated 12 October 2023, which included the following additional information:

   ·The applicant’s mother married [Mr A] in February 2013.

   ·Before coming to Australia, the applicant resided with his mother, [Mr A] and A at [Address 1] which is owned by the applicant’s grandmother. Their previous home, [Address 2] which is nearby, is owned by the applicant’s mother.

   ·[Address 2] was rented out for income.

   ·The applicant supported himself financially in Fiji working in [specified jobs].

   ·They didn’t seek medical attention because this would have angered [Mr A].

   ·The applicant contacts his mother once a week from Sydney. He has no ongoing contact with [Mr A].

   ·[Brother A] applied for a protection visa in Australia and was interviewed by the Department in February 2021 but was unsuccessful in his application.

   ·In the December 2018 incident when [Mr A] threatened the applicant with a knife he sought help from the police at the [Police Station 1] in [Town 1]. A patrol team

   came to their house and informally dealt with the situation. They made [Mr A] apologise and undertake not repeat his actions. After the police left [Mr A] threatened to kill him for going to the police.

   ·In Australia In July 2023 the applicant attended a friendly soccer match with his uncle, [Uncle A], in [Suburb 1], NSW. The applicant bumped into the former police constable ([Officer A]) to whom the applicant had reported [Mr A] in 2018. [Officer A] wrote a letter of support.

   ·[Mr A] is an indigenous Rotuman Fijian. The applicant’s mother has told him the [Mr A] has connections with authorities, but she has never given any details of these to the applicant.

   ·If the applicant returned to Fiji he would have to continue to reside in the same family home as it is difficult to find rental properties in Fiji. He would not be able to relocate. He would not be able to reside alone because of low income and without higher qualifications he can’t find a high-paying job. Previously the applicant had to give money to [Mr A] and his mother to help with shopping and bills.

   ·He has no choice other than to live with his mother and [Mr A] if he returned to Fiji, and he would continue to suffer abuse.

   ·The authorities will not protect the applicant as male domestic violence is not taken seriously by the Fijian authorities.

3. The applicant submitted the death certificate relating to his father, the marriage certificate for his mother and [Mr A], his birth certificate and a pay slip relating to his employment in [a business 1] in Fiji for a period in May 2023.

   The interview

4. The attended a Departmental interview on 14 February 2024 via video link. A copy of a recording of the interview is held on the Department file and I have listened to it.

5. The Department’s decision3 sets out information that the applicant provided, including responses to the delegate’s questions. A summary follows:

   ·[Mr A’s] abuse started when the applicant was around [age range] years old. The worst incident in this period happened in May 2014. The applicant intervened during an argument between [Mr A] his mother, and [Mr A] pushed the applicant against the wall and began choking him.

   ·[Mr A] would be abusive in various ways every day, e.g. verbally, emotionally or physically. The abuse took place in the family home.

   ·[Mr A’s] violence went from simple disciplining to becoming more violent. [Mr A] did not like the applicant challenging his authority. The situation was at its very worst in December 2018 (‘the December 2018 incident’). This is when the applicant first had very serious concerns about his safety in Fiji. He truly thought it was not normal to be treated so poorly. [Mr A] did not end the violence after this incident but the applicant avoided talking to [Mr A] after that so he wouldn’t have a reason to harm him.

3 A copy of which was given to the Tribunal with the application for review.

·[Mr A] has jobs as [an occupation 1] and factory worker from time to time.

·Apart from a gap of a few months the applicant had continuous employment in Fiji working in [specified jobs]. He also worked for 2 years in [industry 1] and completed an apprenticeship in [occupation 2].

The applicant’s previous trip to Australia

·The delegate noted the applicant had described violent events from 2014 onwards that peaked in 2018. The delegate asked, given this, why had the applicant returned to Fiji after travelling to Australia in 2015. The applicant said at the time he was not convinced that [Mr A’s] abuse was anything other than parental discipline. The delegate noted that this return could indicate that the applicant’s fears of harm were not so severe.

[Mr A’s] farewell wishes in 2023

·When the applicant left Fiji in 2023 [Mr A] didn’t say much to him but wished him all the best.

The applicant in Australia

·The delegate noted that the applicant claimed that he was the one who could protect his mother. However, he had been unable to protect her since he came to Australia in June 2023. The applicant acknowledged this was correct. He said that he had sacrificed so much to help her and he’d tried to convince her to leave [Mr A].

·The applicant confirmed that he doesn’t send any financial support to [Mr A] from Australia.

Why the applicant fears to return to Fiji

·The applicant said that if he returns to the home the situation could get worse and [Mr A] could get more aggressive. He fears harm from [Mr A]. In having to protect his mother from [Mr A], one day things will get so heated it might all end. He could be killed or severely hurt.

·The delegate queried after the lapse of time since 2018, [Mr A] may no longer be motivated to harm the applicant. The applicant said that although he is older and stronger than he was in 2018 and [Mr A] is older and less strong, [Mr A] is bigger than the applicant and is still a threat to the applicant. The applicant said that he knows for sure that his mother and [Mr A] get into a fight every week and he doesn’t think that the situation has changed. He said that he can’t confirm that though because he has no contact with [Mr A] since leaving Fiji and his mother doesn’t tell him these things. The delegate wondered why the applicant’s mother would not make the applicant aware of significant developments happening in her life, regardless of them being positive or negative.

·The applicant is also concerned by his financial situation if he returned to Fiji. Finding a job would be difficult.

·He has sacrificed so much already for his family. He has not yet had a chance to live for himself and he wants this chance. He does not have any other family or friends who can support him back home in Fiji.

Relocation away from family home

·The delegate queried why the applicant would return to the family home if he returned to Fiji, noting that his mother was still living with [Mr A] without the applicant’s protection. As an adult the applicant was free to live wherever he chose. He could relocate somewhere like Nadi, where there is a thriving tourism industry. The applicant responded that he is not well educated and wouldn’t be able to earn a good wage or find a cheap rental elsewhere. The applicant said that he had no one there to support him apart from his mother. The applicant’s representative made submissions that the applicant would earn FJD $12,000 a year, and a rental home would cost FJD $800-

$1000. It would be difficult for the applicant to live away from the family home.

·The applicant said Fiji is small and [Mr A] would be able to find him. The delegate noted that from his earlier evidence, the issues with [Mr A’s] violence had been confined to the family home. There was nothing to suggest that [Mr A] would come actively looking for him. The applicant responded that he simply has a fear that he would do this. However, he agreed that there had been no on-going threat from [Mr A] and that previous violence had been restricted to the family home.

·The delegate noted that [Mr A] had lived without income from the applicant for a considerable length of time now. The applicant was of adult age and free to live wherever he wished, as demonstrated by his decision to come to Australia. The applicant said that [Mr A] could use his mother to manipulate the applicant coming back to the family home.

·The delegate asked the applicant whether [Mr A] had tried to convince him not to leave Fiji. The applicant said that [Mr A] did not want him to stay long in Australia. The delegate observed this seemed strange given the applicant’s earlier evidence that [Mr A] had wished him the best when he left Fiji. The delegate also noted it appeared strange that he wished the applicant all the best if he really would be losing the applicant’s income. The applicant said that [Mr A] had not been serious about wishing the applicant all the best. However, the delegate noted that the applicant had not mentioned [Mr A’s] comment not being serious at the time when he raised it earlier in the interview.

·The delegate noted the applicant’s claim that he would not be able to provide for himself in Fiji. To the contrary, the delegate noted, the applicant’s evidence demonstrated a strong working history and capacity and an ability to support himself and his family. He had experience living overseas and strong English skills. He would be able to earn a living and subsist in Fiji. The applicant said that he would not find somewhere to rent or a good job.

Protection in Fiji

·The applicant said that the authorities cannot protect him because the police are corrupt and domestic violence is taken lightly and laughed at, especially if it is claimed by a male.

·When the applicant reported [Mr A] to the police in December 2018 the officers didn’t file an incident report or take it seriously. They were only interested when they asked about [Mr A]. Eventually 3 policemen returned with the applicant to the family home. They asked [Mr A] to apologise for what he did, saying if they got a further report about him, they would enforce action against [Mr A]. The applicant agreed that it was common in Fiji to resolve a dispute informally in this way. He agreed that he had not requested further action. He said he didn't want to take this incident any further because [Mr A] could instil more fear by yelling and threatening the applicant.

·The applicant was unable to give any details regarding his mother's statement that [Mr A] had connections in high places. The delegate noted from the applicant’s evidence, that even though the police appeared to know about [Mr A], they still went to the home to sort out the issue. Given that, perhaps [Mr A] didn’t have those high connections? The applicant agreed. Maybe his mother had just said that about the connections to stop him acting against [Mr A]. The applicant then claimed that as [Mr A] is an indigenous Fijian, the police may be more inclined to help [Mr A] rather than the applicant who is Indian Fijian. The delegate asked, if he was unsatisfied with the police’s response, why he had not tried to report an incident at another police station. The applicant replied that his mother had convinced him not to probe any further with the police.

·The delegate noted the applicant's claim was that he was too scared to contact the police again because he and his mother would be harmed by [Mr A]. Yet in another claim, he stated that he could not get police assistance due to [Mr A’s] connections. The delegate asked which was the correct reason for not seeking further police assistance. The applicant said that it was mainly because he was concerned of harm from [Mr A], but at the back of his mind he also feared that [Mr A] may have connections to the police.

·The applicant agreed that the only time that he requested assistance from the police was for the December 2018 incident.

The Department’s decision

1. A copy of the Department's decision was forwarded to the Tribunal with the application for review.

2. The decision set out country information from the Department of Foreign Affairs and Trade Country Report Fiji 2022 (the ‘DFAT Report’). A short summary of the quoted information follows:

   ·The Fiji Police Force is described as professional, with improvements in training and accountability. Victims of crime can expect fair treatment with dignity. Police are generally well resourced by the government. Policing is conducted on community policy model and police are generally actively engaged with the communities they serve. Corruption is reported, but DFAT understands that it's not widespread.4 Police protection is available in Fiji but not consistently.5

   ·Domestic violence is a serious problem in Fiji. Most victims of domestic violence are women and girls.6 The police have a no drop policy which means the cases cannot be dropped by police nor be withdrawn by victims. Claims must be investigated. This policy was to prevent victims from being pushed by family to drop the cases. It’s not implemented in all cases and sometimes police do drop domestic violence cases or were unhelpful or hostile to the victims. 7

   ·Fiji is described as an upper-middle economy country that has one of the largest economies in the Pacific region.8

3. The delegate found that the harm that the applicant fears from [Mr A] did not relate to any of the reasons set out in s 5J(1)(a) of the Act and there was no other information to suggest that he

4 DFAT Report paras 5.6-5.8

5 DFAT Report paras 5.6-5.8
6 DFAT Report para 3.51, 3.53, 3.55
7 DFAT Report para 2.34
8 DFTA Report para 2.7

would be subject to harm on his return to Fiji for any of those reasons. Further, the delegate was not satisfied that there were substantial grounds for believing that as a necessary forseeable consequence of being removed to Fiji, there was a real risk that the applicant will suffer significant harm.

The review application

1. On 9 April 2024, the applicant applied to the Tribunal for a review of the delegate’s decision.

2. The applicant submitted a statutory declaration dated 5 September 2024. My summary of it follows:

   ·The applicant’s mother recently told him that [Mr A] has been pressuring her to sell [Address 2] which is ¼ owned by the applicant (and ¼ by [Brother A]) as they need the money. He attached Facebook messages with her to support this claim.

   ·The applicant doesn't want to sell [Address 2] as it is his home and his inheritance.

   ·The applicant fears that [Mr A] will kill him because he refuses to sell it. [Mr A] would be able to find him in Fiji. The applicant has no protection in Fiji.

   ·The applicant will have to reside in the family home if he returns to Fiji because rents of other properties are too high, and he can't afford living expenses otherwise. Rents in Fiji cost a minimum of FJD $600 to $850 a month. He can earn a maximum of FJD

   $10000-$12000 a year in Fiji. The applicant can’t afford this so he would have to stay in the family home where he would be subject to abuse and violence from [Mr A].

3. The applicant attached a copy of an unsigned and undated Deed of Renunciation which indicates that he and [Brother A] each own1/4 share In [Address 2]9. He also submitted advertisements for various rental properties in Fiji.10

   Hearing

4. The applicant appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The applicant’s representative attended the hearing. The applicant’s [Uncle A] with whom he has lived since coming to Australia in July 2023 also attended the hearing as a support person. An interpreter was not required.

5. The applicant explained that [Officer A] was ill and would not be a witness at the hearing as foreshadowed. I noted that his letter dated 19 August 2023 had been provided, and I had read it.

6. The applicant confirmed information already provided about his family members. He said his mother was in her [age range] and [Mr A] a little younger than her. Their son, [Brother B], is about [age].

7. He said that his grandmother who owned [Address 1] where the family moved to from [Address 2], is owned by his grandmother who has lived in [Country 1] since he was a child. Previously the family resided a few houses away at [Address 2].

8. The applicant said that since aged about 15 years old he had worked in Fiji variously [in specified jobs]. He also had worked 2 years in [industry 1] as an apprentince [occupation 2].

9 The Deed indicates that the applicant is [an occupation 3] and [Brother A] is a student and they both live at the residential address in NSW that the applicant has already provided to the Tribunal.

10 He also submitted the same pay slip from May 2023 (see para 10) and the same letter from [Officer A] (see para 8).

He also said, when discussing his salary, that he has worked in many [business 1s].

1. The applicant confirmed that he finished high school. He then completed the first year of a [Course 1] degree before withdrawing. He’d also completed 1 year of theory and 1-year practical training and graduated in [occupation 2], but he had not taken out [an occupation 2’s] licence.

2. The applicant currently works in Sydney as [an occupation 3] for a [business].

3. The applicant confirmed that he has stayed with [Uncle A] when he visited Australia at the end of 2015, and that he has lived with [Uncle A] since returning to Australia in 2023.

4. The applicant confirmed his evidence that he has had no contact with [Mr A] since leaving Fiji in 2023. He remains in contact with his mother once a week.

5. The applicant thought that [Address 2] was currently for sale. However, he also thought that it could not in fact be sold unless he and his brother renounced their ownership share.

6. At the end of the hearing the representative made submissions including that the applicant’s mother was compliant to [Mr A’s] direction. The applicant is unable to relocate because of financial limitations and because Fiji is small and [Mr A] would be able to find him.

7. Where relevant, the applicant’s other oral evidence at the hearings is referred to in the Tribunal’s analysis below.

   Section 424A letter and response

8. During the hearing, I raised an issue about the rental value of [Address 2], the family property which the applicant’s mother wishes to sell. The description and photos of a property for sale at the same address at [Address 2] found in an Internet search11 indicate a higher value than that described by the applicant. After the hearing a s 424A letter was sent to the applicant for comment. The applicant responded in a statutory declaration dated 1 October 2024. He attached a printout of the photos and description of [Address 2] as advertised on the Internet and repeated his claim this property was not his family home. He attached photos of what he claimed was his family home. The listing’s real estate agent contacted by the applicant told him that a marketing agent had compiled the (inaccurate) Internet listing. No other explanation is provided. I accept that the property shown on the Internet listing is not [Address 2], [Address 2] has not been sold, [Address 2] is in poor condition and its rental value is FJD$300 a month, as claimed by the applicant during the hearing. This issue of the description and photos of [Address 2] is not otherwise pursued by the Tribunal.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.

Relevant law

1. 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

11 [Real Estate] advertisement. Also on Facebook.

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.

1. 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.

2. 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).

3. 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.

4. 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

1. 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.

Country information

1. The DFAT Report has already been referred to above.12 It also states as follows regarding ethnic discrimination:

   The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei.13

   …DFAT assesses that Indo-Fijians face a low level of societal discrimination. This affects

12 See paragraph 14.

13 DFAT Report 3.1.

most Fijians as some people of each major ethnic group perpetuate racist stereotypes against the other….Because of traditional land ownership, most Indo-Fijians are unable to buy land outright, but rather lease it... Otherwise, DFAT is not aware of evidence of official discrimination against Indo-Fijians based on race/nationality.14

Analysis, reasons and findings

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Fear of harm in returning to Fiji

2. The applicant claims that if he returns to Fiji, he will be seriously harmed or killed by [Mr A], whom he claims is violent and abusive and has a history of domestic violence against the applicant, [Brother A] and his mother. He claims that he would have to return to live in the family home because of his own financial limitations. He claims in having to protect his mother at home he may be hurt or killed by [Mr A].

3. In a new claim since the protection visa application was lodged, the applicant also claims that even if he were to live in another location in Fiji, [Mr A] would find him and seriously harm or kill him because the applicant refuses to renounce his 1/4 share ownership in [Address 2] which his mother and [Mr A] want sold. He also claims that financial limitations and lack of support prevent him being able to live anywhere else in Fiji.

   Domestic violence experienced in Fiji

4. The applicant has consistently claimed specific acts of domestic violence against him by [Mr A] in 2014, 2015, and 2018 during which he was threatened, slapped, pushed against the wall and elbowed. He claims that at other times [Mr A] was abusive emotionally and verbally. According to the applicant’s claims, [Mr A] became violent at the family home when the applicant intervened to protect his mother, when the applicant challenged [Mr A’s] authority or when [Mr A] was drunk.

5. I discussed the abusive events that the applicant claims occurred, including the December 2018 incident (which is discussed in more detail below).

6. I also asked the applicant about his claim that he was forced to work since he was 15. The applicant old me that he remained attending high school but worked in [a local business] after school on 2 days and during the weekends.

7. I asked about his claim that [Mr A] stopped him studying in August 2014. The applicant said that he was at home and wanted to study for a forthcoming exam, but [Mr A] wanted him to help with the chores (like trimming the bushes in the garden and inside chores). [Mr A] pointed the cane knife at the applicant, so he stopped studying and did the chores.

8. Having considered the largely consistent evidence provided by the applicant in his written statements, during the interview and the hearing, I accept that the applicant was threatened and verbally, emotionally and physically abused by [Mr A]. Specifically, that in May 2014 he was choked when pushed against the wall, a knife pointed at him in August 2014, he was elbowed and pinned to the wall in January 2015, slapped in June 2015 and in December 2018 while protecting his mother he was pushed against the wall and threatened with a knife. I accept the claims that these domestic violence incidents caused fear, bruising and pain to the applicant.

14 DFAT Report 3.7.

1. I also accept the applicant’s evidence that after the 2018 incident (which was the worst one) although [Mr A] continued to be abusive, the applicant decided to avoid him, so [Mr A] didn’t ‘have a reason’ to harm him.

2. The applicant claims that medical or hospital treatment was not sought by the family because of fear of [Mr A]. However, I note that the applicant has not claimed that he ever required medical or hospital treatment for his injuries that was foregone.

3. The applicant confirmed his evidence already given that the domestic violence incidents occurred within the family home. There are no claims that [Mr A] was violent to or threatened the applicant beyond the family home. I find that [Mr A’s] domestic violence to the applicant in Fiji was confined to the family home.

   Financial limitations: applicant must live with [Mr A] and his mother if he returns to Fiji

4. The applicant is an [age]-year-old fluent English speaker who completed schooling, one year of university and [an occupation 2] apprenticeship. He has demonstrated a pattern of dedicated employment in Fiji whereby he supported himself financially. He has skills in many areas (which he acknowledges) including in [specified jobs] and [in industry 1].

5. He has been living away from his mother and [Mr A] since leaving Fiji in June 2023.

6. The applicant claims that he cannot relocate from the family home in Fiji because of his financial limitations. He claims that the minimal rent he would pay in Fiji is FJD$600-$850 per month.15 He submitted printouts from Internet searches for rental properties in Fiji to support these claims. However, he also gave evidence during the hearing that [Address 2] (in Suva) is rented out at FJD $300 a month, which albeit in poor condition, is half the price of the minimal rent he claims applies to rental accommodation in Fiji. He also claims that there are very few properties available to rent in Fiji. However, in providing the supporting information regarding rent amounts, he also demonstrates that rental properties are available in Fiji including some 48 properties in Suva through [one agent’s] Suva property listings. As I pointed out to the applicant, while I accept that there may be some competition in finding rental properties in Fiji, from my Internet searches it is generally not overly difficult to find rental property in Fiji.

7. I further noted that the applicant could possibly move into share accommodation (rather than single occupancy) to bring down rental and living costs. The applicant agreed but said that this was difficult to do unless you knew the other renters. I accept that it may be helpful to know existing renters to secure shared accommodation, nonetheless, share accommodation is available in Fiji. As I pointed out to him, one of the rental properties he submitted details for was a 2-bedroom premise for rent at FJD$690 per month. The advertisement encouraged a student or students to apply. Also submitted by the applicant were details of another 2-bedroom home at FJD$650 per month (i.e. $325 FJD for ½ share) including water and electricity costs and which also encouraged a student to apply.

8. Given all the above, I don’t accept that $600-$850 FJD is the minimal rental amount the applicant would have to pay per month to rent a property away from the family home. Nor do I accept that he would be unable to secure accommodation including shared accommodation. I consider that the applicant has exaggerated the rental amount he claims he would have to pay and the difficulty he would face in securing rental accommodation in Fiji. I also find that these embellishments also reflect adversely on his claim that he would have no other option other than to live with [Mr A] and his mother if he returned to Fiji.

15 Statutory declaration dated 5 September 2024, paragraph 15.

56.      The applicant also claims that his annual salary would be limited to a maximum of FJD$10,000-$12,000 annually if he returns to Fiji. He submitted a pay slip from a former Fijian employer for whom the applicant worked as a [business 1] agent. It indicated that based on the pay for a period in May 2023, his annual salary would be FJD $12,000 (i.e. FJD $1000 a month). However, as I pointed out to the applicant, the various salary websites that I accessed on the Internet indicated that this salary would be unusually low in Fiji in 2024. I referred the applicant to salary.explorer.com which listed the average wages for different employment positions in Fiji. It stated that the average monthly wage in Fiji was FJD $4,830.16 For a customer service representative it was FJD$1810 a month, for a receptionist in hospitality it was FJD $1760 a month and for [an occupation 2] it was FJD $1630 FJD per month. The applicant stated that this was not his experience in Fiji. He said that he did not have qualifications and he would have to start at the lowest level even with all the skills that he had. I told him that information available to me consistently reported higher incomes available in Fiji. I told him that I had checked other websites too like and paylab.com and they reported available salaries consistently. The applicant said that he would start at the bottom level as his did not have experience.

1. The applicant’s evidence consistently given is that he does in fact have experience working in many [specified jobs] and in [industry 1], and most recently as [an occupation 3]. I accept that he has this wide-ranging employment experience. I also accept his evidence set out in the Department’s decision record that apart from a gap of a few months he had a steady employment history in Fiji. I understand that it is possible, he may experience some initial difficulty in securing employment in Fiji, but this would also be the case with other [age]-year-old men in Fiji with same language ability, experience and skills. I find that there is consistent information available to me about the salaries currently available in Fiji, at a higher level than the applicant claims. I don’t accept that the applicant’s maximum salary would have to be limited to FJD $10,000 to $12,000 FJD. I find that the applicant has underestimated his income earning capacity in Fiji. I also find that this embellishment reflects adversely on his claim that he would have no other option other to live with [Mr A] and his mother if he returned to Fiji.

2. Given all the above, I don’t accept the applicant’s claim that he would have to live with [Mr A] and his mother in Fiji because of his financial limitations. I find that the applicant would be able to find alternate, albeit modest, accommodation and financially provide for himself in Fiji.

3. The applicant also claims that he can’t relocate from the family home because he does not have other family support in Fiji. I noted to the applicant that he is [age] years old and has now been living independently away from [Mr A] and his mother for some time. I do not accept that the applicant would be unable to relocate due to lack of family support.

   Returning to domestic violence in the family home

4. The applicant has claimed domestic violence incidents by [Mr A] in 2014 and 2015, including threats to kill him, and that [Mr A] was abusive verbally and emotionally as well. However, he visited Australia at the end of 2015 for a month or so and then returned to Fiji. He was [age] years old at the time. I asked why he resumed living in that abusive situation if he had been as fearful of [Mr A] as he claims to have been. The applicant said that he had viewed [Mr A’s] actions as disciplinary actions, that he somehow deserved this treatment and that it was OK for [Mr A] to have done this. He has also claimed that he was influenced by his mother to come to these misguided conclusions.

16 Lowest $1,220 and highest $21,500.

1. I have considered the applicant’s evidence on this issue. I accept that as a younger man he may have had confused and misguided views about the motives of [Mr A’s] abusive behaviour in 2015 when he returned to live in the family home. I also accept that the applicant perhaps saw it as his duty to remain in the home to protect his mother. However, the applicant is a mature adult and independent now. He is almost 29[age] years old and has been living separately from [Mr A] and his mother for some time. As he acknowledges, his mother has continued to reside with [Mr A] without the applicant’s protection. Further, she has not paid any heed to the applicant’s requests to leave [Mr A], despite him imploring her to do so for a long time. Given all of this, I don’t accept that the applicant feels compelled to return to the family home to protect his mother.

2. I accept the applicant’s evidence that he came to realise that [Mr A’s] abuse should not been seen as parental discipline or that the applicant somehow deserved it. As he has recognised, [Mr A’s] abuse in the home against him was not justifiable in this way.

3. The applicant presented during the hearing as a determined and independent individual. He was able to objectively assess [Mr A’s] past behaviour in the family home and call it out for being abusive. He recognises [Mr A’s] attempts at manipulation, and his mother’s unfortunate acquiescence to [Mr A’s] dominance in her home. The applicant agreed during the hearing that he is older and stronger than he was as an adolescent living in the family home in Fiji. More significantly, the applicant presented as being self-aware of his place in the family dynamic. He expressed some disapproval and contempt towards [Mr A] because of the abuse. He also expressed some disappointment towards his mother in her not protecting him, not standing up to [Mr A] for him and continuing to reside with [Mr A]. He also expressed a commitment to want to take control of his life. He feels has sacrificed too much in the past. He wants to have a relationship. Given all of this, I find that the applicant is aware of his control of choices and decisions, including where to live. He is also aware of the potential for harm for him in returning to live in the family home with his mother and [Mr A]. He has had no on-going contact with [Mr A] and objective about his family home situation. Given all of this, I don’t accept the applicant’s claim that he would have to return live with his mother and [Mr A] if he returned to Fiji.

   Police protection

4. The applicant claims police are corrupt and domestic violence is taken lightly and laughed at, especially if it is claimed by a male.

5. He confirmed his evidence during the hearing that [Mr A’s] domestic violence to him was only reported to the police on one occasion, which was when the applicant went to [Town 1] police station and requested their assistance at [Address 2] in December 2018. This was this only time he sought police assistance.

6. Regarding that event, [Officer A’s] statement is set out below:

   I recall [the applicant] coming to [Town 1] police station to lodge a domestic violence complaint against his stepfather. Our superior got a patrol team to go and question and investigate the stepfather at their residence. Since this was a family dispute and knowing it's very common to have disputes or quarrels among stepfather/ parents/and children, our seniors requested that we try and solve this matter between the family members instead of filing a formal complaint first. As we arrived at their residence and on inquiring about his actions, the stepfather denied using any threaten weapon to threaten [the applicant's] life and was more than happy to apologise to the applicant for causing any sort of fear. I recall [the applicant’s] stepfather promised not to be angry again and apologised in front of us. Seeing that it was deemed the matter to be resolved. This is a very common practi[c]e in Fiji as we try and resolve [an issue] before it gets out of hand and at this particular case I came to know that his stepfather was a relative of one of our superior officers. That was one factor taken into consideration not to lodge a formal complaint against the accused.

1. The applicant has confirmed that it is usual practice in Fiji to deal with family violence complaints in this customary way they do in domestic violence cases: by talking to the perpetrator at the home. Further according to the applicant’s evidence noted in the Department decision record, the police asked [Mr A] to apologise for what he did, saying if they got a further report about [Mr A], they would enforce action against [Mr A].

2. Given the police responded and attended on that one occasion they were asked, they dealt with the situation in the usual manner, and offered to take further action if required, I don’t accept the claim that the police did not take claims of domestic violence seriously, especially if it is claimed as male. On the same basis, I don’t accept the claim that the applicant did not report further incidents because he lost faith in the police after this incident.

3. The applicant has also claimed that [Mr A] could be protected by the police because he has ‘higher connections’. His mother told him that [Mr A] has higher connections, probably in the police force. These ‘higher connections’ are also referred to in [Officer A’s] letter (see above). However, even if I accept that [Mr A] does have higher connections within the police, the police ‘superiors’ nonetheless listened to the applicant’s claims and dispatched the police team to attend the family home and specifically to ‘question and investigate’ [Mr A]. Further, as already noted, the police told [Mr A] that if they got a further report about him, they would enforce action against him. Given all of this, I do not accept that [Mr A] was or is protected by the police because of higher connections.

4. The applicant also claims it is possible that the police would not assist him or act against [Mr A] because [Mr A] is indigenous Fijian, and the applicant is Indo-Fijian. However, as pointed out to the applicant during the hearing this higher level of discrimination by the police is not borne out by country information available. Further the police, including [Officer A], were dispatched to question and investigate the applicant’s claim of domestic violence by [Mr A]. I do not accept that the applicant would not be assisted by the police or that the police would not act against [Mr A] because of his and [Mr A’s] respective ethnicity.

5. Given country information available about the police in Fiji and because he was assisted when he requested assistance from the police, I do not accept the applicant’s claim that he considers that he would not seek or get assistance from the police because the police are corrupt.

6. I accept the applicant’s claim that the December 2018 incident was the worst domestic violence incident he experienced. I have already found that the applicant requested police assistance on this occasion, and it was provided to him. Given this, and the embellishments that I have already found in the applicant’s evidence, I don’t accept the claim that he didn’t seek assistance from the police after this incident because of fear that [Mr A] would kill him. Nor do I accept that the applicant didn’t take this police report any further because [Mr A] could instil more fear by yelling and threatening him.

   Reliance on the applicant for income

7. I accept the applicant’s claim that previously while he was living in the family home, and earning an income, he gave money to [Mr A] and his mother to help with shopping and bills.

8. The applicant claims that [Mr A] and his mother have had no income since the applicant and his brother left Fiji and implies that they are or could be financially reliant on him. However, during the interview (recorded in the Department decision) he also gave evidence that that [Mr A] has work from time to time as [an occupation 1] and factory worker.

1. During the hearing, the applicant confirmed his written claim that [Address 2] was rented out when the family moved into [Address 1]. He couldn’t remember when they moved homes. First, he said it had been when he was [age range] (2013-2014) but then he said that it had been around 2020 when he was [age] years old. The applicant then told me that [Address 2] was rented out but sometimes the renters were late paying and sometimes they did not pay rent. I accept that the rent may been paid late or not paid on some occasions. However, I find that [Address 2] was rented since at least 2020. I don’t accept the claim that [Mr A] and his mother have had no income at all.

2. I also consider that the applicant recognises [Mr A’s] manipulations and attempts to control matters within the family home. He has not provided any financial support to [Mr A] since he left Fiji. There is no evidence before me that [Mr A] requested financial assistance from the applicant since he left Fiji. After speaking to the applicant during the hearing, I consider that he would resist any attempt made by [Mr A] for financial assistance and that he would not financially support [Mr A] on his return to Fiji, even if requested to do so by [Mr A] or his mother. I do not accept that [Mr A] is financially reliant on the applicant or will be in the future.

   Deed of renunciation – new claim for protection

3. I have the following concerns about the applicant’s evidence about [Address 2] and the Renunciation Deed. The applicant claims that [Mr A] is pressuring his mother to sell [Address 2]. He submitted an unsigned Deed of Renunciation regarding [Address 2] dated 2024, which he told me had been prepared by his mother’s lawyers, for him and [Brother A] to sign. The Deed indicates that the applicant and [Brother A] each have a 1/4 ownership of [Address 2].

4. However, in his statutory declaration dated 12 October 2023, as well as earlier in the hearing, the applicant claimed that his mother owned [Address 2]. When I raised this inconsistent information with the applicant, he said that he had completely forgotten his ownership interest in [Address 2]. I asked the applicant if he had any other proof of ownership of [Address 2]. He said that he did not.

5. I also noted that the Deed indicated that his mother lives at a different address in Suva than that he had provided for her at the beginning of the hearing (i.e. [Address 1]). I asked if the applicant’s mother was living at the address shown in the Deed and renting out [Address 1] too for income. The applicant said that maybe she had been living at this different address when the Deed was prepared. He then identified this address as [Mr A's] parents’ address. He also said that his mother had given her in-law’s address for school registration purposes of enrolling A. The applicant told me his mother is not living with her in laws. She is living at [Address 1]. I explained that I could accept his evidence that his mother used her in-law’s address to secure a place at a school she wanted her son to attend. However, this did not explain why she would also use an address where she was not living on an important legal document (i.e the Deed) that had nothing to do with school enrolment.

6. I have considered the evidence. With some hesitation, I accept that applicant does own a 1/4 share in [Address 2]. I also accept his evidence that he does not want to renounce this interest as he would not be paid for it. Also, he regards [Address 2] as his inheritance. I accept his claim that it would be difficult for his mother to sell [Address 2] with the renunciations.

7. For completeness, s 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claims or evidence not raised or presented before the primary decision was made, unless this Tribunal satisfied there is a reasonable explanation as to why that occurred. The applicant didn’t mention his 1/4 share ownership of [Address 2] or the Renunciation Deed in the protection visa application. I accept that it was only recently that the applicant’s mother expressed her desire to sell [Address 2] and that the Renunciation Deed was prepared only recently as well. Accordingly, I accept there is a reasonable explanation as to why this issue was not presented to the primary decision maker, and I draw no inference regarding the applicant’s credibility in regard to it.

   Harm if the applicant returns to Fiji

8. During the interview the applicant claimed that if he returned home to Fiji he would have to return to the family home and the situation could get worse and [Mr A] could get more aggressive. However, I have not accepted the applicant’s claims that he would have to return to live in the family home because of financial limitations or to protect his mother. There is no evidence before me that [Mr A’s] domestic violence towards the applicant worsened after the December 2018 incident, when the applicant reported him to the police. I have already accepted that this was the worst incident and after it the applicant chose to avoid [Mr A] to avoid harm. I have found that the [Mr A’s] domestic violence was confined to the family home, and I have not accepted the applicant’s claim that he would have to return to the family home if he returned to Fiji. By living away from the family home the applicant could avoid harm.

9. However, the applicant also claims that no matter where he is in Fiji, [Mr A] would find him and threaten or harm or kill him because he refuses to renounce his ¼ share of [Address 2]. I have already accepted that the applicant has had no contact with [Mr A] since he left Fiji. Further, there is no evidence before me that [Mr A] has contacted the applicant, or attempted to, directly or indirectly for any reason since June 2023, including to pressure him to renounce or sell his share in [Address 2]. There is no evidence before me of any ongoing threat from [Mr A]. There is no evidence of [Mr A’s] violence to the applicant outside of the family home. I have already found that the applicant embellished his claims regarding his financial limitations. I find that he is similarly embellishing his fears of harm from [Mr A] regarding not renouncing his ownership interest. I do not accept the claim that [Mr A] would find him and threaten or harm or kill him because he refuses to renounce his ¼ share of [Address 2], no matter where the applicant is living in Fiji.

10. A summary of other relevant finding of facts follows:

    ·The applicant suffered fear, pain and bruising in the specified domestic violence incidents I accept occurred. [Mr A] was abusive in other ways at other times.

    ·[Mr A’s] domestic violence was confined to the family home. The worst event took place in 2018, which the applicant reported to the police.

    ·The applicant does not have to live with his mother and [Mr A] if he returned to Fiji.

    ·With his skills (including language skills) experience and strong work ethic and history the applicant would be able to secure employment in Fiji. He would not be restricted to a maximum FJD $10,000 to $12,000. He would be able to secure and afford modest or shared accommodation in Fiji.

    ·The applicant was able to get assistance from the police when he requested it. The police dealt with the applicant’s claim of [Mr A’s] domestic violence informally, in a way not inconsistent with country information about policing in Fiji.

    ·The police did not refuse to assist the applicant or provide a lower level of protection because he was a male victim of domestic violence, because he is Indo-Fijian and [Mr A] is indigenous Fijian, or because [Mr A] has ‘superior connections’. There is no evidence before me or country information available to indicate this would not continue to be the case in the future should the applicant require police assistance in the foreseeable future.

·             [Mr A] has not contacted or attempted to contact the applicant since June 2023, including regarding the selling of [Address 2] or renouncing the applicant’s ¼ share in [Address 2]. [Mr A] has not made any threats or harmed the applicant outside of the family home.

Does the applicant meet the refugee criterion?

1. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. Section 5J(5) provides that the following are instances of serious harm: (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.

2. I have accepted that [Mr A] harmed the applicant in the past, and that this harm was fear, pain and bruising. However, 7 years has passed since the worse event, during which the applicant requested and received police assistance. I have found that [Mr A’s] domestic violence was restricted to the family home, and I do not accept that the applicant would be forced to return to the home or he feels forced to return home, or that he has no other option other than to return to the home or he feels that he has no other option but to do so. There have been no on-going threats of violence from [Mr A] and there has been no contact with [Mr A]. I do not accept that [Mr A] would harm the applicant of he returned to Fiji living away from the family home. I do not accept that the applicant is reliant on the applicant for income. I do not accept that [Mr A] would harm the applicant of he returned to Fiji because he refuses to sign the Renunciation Deed. I don’t accept that the applicant faces serious harm from [Mr A] if he returned to Fiji in the foreseeable future.

3. The applicant is [age] years old. He has a solid employment history in [various jobs and] [occupation 3] duties. He has also completed [an occupation 2] apprenticeship. I have found that the applicant would be able to secure modest or shared accommodation for himself. Similarly I have found that the applicant would likely be able to work and support himself outside the family home. Given my finding in regard to his claimed financial limitations if he returned to Fiji, I don’t accept that the applicant faces serious harm for economic reasons.

4. On the basis of the evidence before me, I do not accept that there is a real chance that the applicant will be seriously harmed on his return to Fiji on the basis of domestic violence from [Mr A] or as a result of economic hardship. Even if I were to accept, which I do not, that there is a real chance that the applicant will be subjected to serious harm, I am not satisfied that the applicant’s fear of harm is essentially and significantly for any of the reasons outlined in s 5J(1)(a), namely his race, religion, nationality, political opinion or membership of a particular social group as defined under s 5K of the Act

5. In light of the findings above, I am not satisfied that for the purposes of s 5J(1) the applicant has a well-founded fear of persecution. Consequently, I find that the applicant is not a refugee for the purposes of s 5H. As such, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Does the applicant meet the complementary protection criterion?

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). For the reasons outlined above I do not

accept that that the applicant faces a real risk being significantly harmed should he be removed to Fiji,

1. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test is considered to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition17 and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.18

2. ‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

3. I find that the harm that the applicant may face on return to Fiji does not amount to significant harm. For the reasons already outlined above, I do not accept that there is a real risk that the applicant will suffer significant harm if returned to Fiji.

4. I am, therefore, not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji as the receiving country, there is a real risk that the applicant will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Member of family unit

1. 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 any of the criteria in s 36(2).

DECISION

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

   Phillippa Wearne Member

   17 MIAC v SZQRB (2013) 210 FCR 505.

   18 Refer to Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170- 1 at [1169], [1180]).

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.

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36     Protection visas – criteria provided for by this Act

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(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.

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