2425264 (Refugee)
[2025] ARTA 1486
•13 May 2025
2425264 (REFUGEE) [2025] ARTA 1486 (13 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2425264
Tribunal:General Member N Schmitz
Date:13 May 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 13 May 2025 at 9:51am
CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions – employment – financial support to family – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Fox v Percy (2003) 214 CLR 118
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Sujeendran Sivalingam v MIMA [1998] FCA 1167
ZLVZ v MIAC [2008] FCA 1816Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 July 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 national of Fiji, applied for the visa on 24 June 2024. The delegate refused to grant the visa on the basis that the applicant did not meet the protection criteria.
On 27 July 2024, the applicant applied to the Administrative Appeals Tribunal (the AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
The applicant appeared before the Tribunal on 12 May 2025 to give evidence and present arguments.
Criteria for 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.
The applicant must satisfy the statutory requirements
The Tribunal is not required to make the applicant’s case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; and Abebe v Commonwealth of Australia (1999) 197 CLR 510.
Fact Finding and Assessing Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims made. Asylum cases present particular complexities in regard to fact finding. An applicant may have difficulties presenting evidence due to experiences in their home country. The full Federal Court in Sujeendran Sivalingam v MIMA [1998] FCA 1167 stated:
Refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[1] Therefore, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[2]
[1] AAT, MRD, Guidelines on the Assessment of Credibility dated 20 December 2017.
[2] Fox v Percy (2003) 214 CLR 118.
The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims; ZLVZ v MIAC [2008] FCA 1816 at [25].
The Tribunal is not required to uncritically accept all or any of the applicant’s claims; Randhawa v MILGEA (1994) 52 FCR 437. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347.
The mere fact that an applicant claims a fear of ‘serious harm’ for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed; Randhawa v MILGEA (1994) 52 FCR 437. Similarly, an applicant who claims to face a ‘real risk’ of ‘significant harm’ does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements have been made out; MIEA v Guo (1997) 191 CLR 559; and Prasad v MIEA (1985) 6 FCR 155.
Country of Nationality
The applicant arrived in Australia using an apparently genuine Fijian passport, a copy of which is contained in the Departmental file. He has at all times stated that he is a citizen of Fiji and has been assessed on that basis by the Department. The Tribunal finds he is a citizen of Fiji and has assessed his claims against Fiji as the country of nationality and the receiving country.
Evidence before this review
The Tribunal has taken into consideration evidence adduced to the Department and Tribunal, including oral evidence given by the applicant at hearing and independent country information about Fiji.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘Refugee’ criterion, or on other ‘Complementary Protection’ grounds, or as a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s personal background
The applicant is [an age]-year old male from Fiji. He is of Fijian ethnicity and of the Christian faith. He gave evidence that he was born in [Town 1], Fiji. He grew up in a family comprising of his parents and [specified family members]. The applicant resided in [Town 1] until the age of 21, when the family moved to [Town 2] due to his father’s work at a [business 1]. The applicant remained in [Town 2] until he departed for Australia.
The applicant told the Tribunal that he first arrived in Australia [in] December 2023 on a Temporary Work (International Relations) Subclass 403 visa which expired [in] September 2024. The applicant gave evidence that he came to Australia to work and financially support his family. He came in a group of people seeking work and the visa was organised by the [Agency 1] and an Australian company, [named], who he subsequently worked for.
The applicant is married. There are two children from the relationship aged [ages]. The children remain in the care of the applicant’s wife in [Town 2]. The applicant told the Tribunal that his wife does not work and that he provides his family with financial support.
The applicant’s immediate family, including his mother and [specified family members] continue to reside in [Town 2]. The applicant’s father is now deceased. [Occupations of siblings deleted.]. The applicant’s mother does not work. The applicant has maintained contact with his family whilst Australia.
The applicant completed primary and secondary school. He then studied at a [college] as an [occupation 1].
In Fiji the applicant had various employment, including as an [occupation 1] at a [business 1] for two years, [an in other roles] for three years. The applicant also [had another] professional [job] in [Country 1] for approximately seven years. He confirmed this was paid employment.
Since being in Australia the applicant has had various employment, including in Melbourne, regional Victoria and Sydney. This has included [specified roles].
The applicant gave evidence that he lives independently in [Town 3], Victoria. During his time in Australia he has purchased a motor vehicle and obtained a forklift licence. He has no family in Australia other than a cousin in Brisbane who he has no contact with. He is not in an intimate relationship with anyone in Australia.
The applicant confirmed since his initial arrival in Australia in December 2023, that he has returned to Fiji [in] June 2024 to attend an uncle’s funeral. He returned to Australia due to his ongoing employment contract.
The applicant gave evidence that he prepared and submitted his protection visa application himself.
The Tribunal accepts the above matters to be true.
Protection claims
In the visa application, the applicant states that he left Fiji because the country does not have job opportunities and the economy is not good. Working as a fisherman did not provide him with a good income to support his children. The applicant did not experience harm in Fiji. He did not relocate to another part of Fiji because moving will cost him a lot. Nothing will happen to the applicant if he returns to Fiji but he will be in poverty.
The Tribunal asked the applicant why he feared returning to Fiji. The applicant replied that his life in Fiji ‘is so hard’ and that his kids had been happy as he had been working and financially supporting them.
The Tribunal asked the applicant what would happen to him if he returned to Fiji. The applicant replied that he would not be able to financially support his family and that he wanted his children to live a better future.
The Tribunal referred the applicant to his employment history and qualifications acquired in Australia and asked him why he could not use them to obtain employment in Fiji if he returned. The applicant replied that the pay rate was not good in Fiji and that the minimum wage was AUD3.75 per hour.
At hearing, the Tribunal discussed with the applicant that economic conditions in a person’s home country do not generally enliven Australia’s protection obligations because the refugee assessment is based on harm directed at a person for reasons of their race, religion, nationality, membership of a particular social group or political opinion. On the evidence before the Tribunal, it did not appear that he met the criteria, as the applicant did not suggest that the financial harm he feared in Fiji was directed at him for any of those reasons. The applicant was asked if he wished to comment. The applicant replied that the Fijian government promise things but that they did not deliver and nothing had happened with the pay rate.
The Tribunal accepts that the applicant earns more in Australia than in Fiji and that the applicant wishes to remain in Australia so that he can financially support his family. However, the Tribunal does not accept that economic harm will be directed to the applicant for reasons of his race, religion, nationality, membership of a particular social group or political opinion. For this reason, the economic harm feared by the applicant on return to Fiji does not meet the criteria set out in s 5J(1)(a) of the Act.
The Tribunal explained that whilst having financial difficulties was extremely unpleasant, it did not appear that that type of financial harm would reach the level of ‘significant harm’ outlined to the applicant at hearing. Rather it appeared to be economic conditions that applied to the Fijian population generally. The applicant was asked if there was anything he wished to say in response. The applicant replied that he did not know what to say.
In considering the complementary protection criteria, the Tribunal does not accept that any economic harm the applicant may experience in Fiji by way of reduced earning capacity or financial hardship would arise from the intentional or deliberate act or omission of any person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicant cannot be subjected to the death penalty as it was abolished in Fiji in 2015.[3]
[3] DFAT, DFAT Country Information Report Fiji dated 20 May 2022 at [4.3].
As put to the applicant, the risk of suffering poor economic conditions is a real risk faced by the population generally and not him personally. Section 36(2B)(c) of the Act provides that there is taken not to be a real risk of significant harm where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
For these reasons the Tribunal does not accept that the economic harm feared by the applicant would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).
The Tribunal asked the applicant whether there was anything he wished to tell the Tribunal which he felt had not been adequately covered during the hearing. The applicant replied that he did not want to return home.
The applicant has not claimed to fear harm from any other source or for any other reason and no other claims are apparent on the information before the Tribunal.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 12 May 2025
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.
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