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1705253 (Refugee) [2020] AATA 709 (17 March 2020)

Last Updated: 3 April 2020

1705253 (Refugee) [2020] AATA 709 (17 March 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1705253

COUNTRY OF REFERENCE: Fiji

MEMBER: Anne Grant

DATE: 17 March 2020

PLACE OF DECISION: Melbourne

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

Statement made on 17 March 2020 at 12:54pm

CATCHWORDS
REFUGEE – Protection visa – Fiji – applicant does not fear persecution or harm in Fiji for any reason – preferred to remain in Australia to support his partner – no ‘significant harm’ –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant who claims to be a citizen of Fiji, applied for the visa on 3 November 2016. The delegate refused to grant the visa, and the applicant lodged an application for review of the decision on 20 March 2017.

CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
4. 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.
5. 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).
6. 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.
7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. In his written application, the applicant claimed that he had come to Australia on a [temporary] visa to play [sports]. The applicant said that life in Fiji was very hard for him and there were no employment opportunities. According to his written claims, he had experienced discrimination in finding employment, and that he wanted to find ‘life’ to help his family and himself and he does not want to be discriminated against by his community. He claimed that the authorities could not protect him because ‘people won’t accept me for who I am.’ He claimed be unable to relocate because it’s the same everywhere and everyone is the same. Attached to the application was a copy of a news article entitled “No Same Sex Marriage: PM” published in an online edition of the Fiji Sun on 6 January 2016.
10. A hearing was conducted on 17 March 2020, by telephone. The hearing was conducted in English.
11. Prior to the hearing, on 3 March 2020, the applicant wrote a letter to the Tribunal in the following terms:

I am writing in relation to refusal of application for a protection (subclass 866) Visa which was lodged at Melbourne Regional office on the 03 November 2016.

I agree with the application being refused as I was not fully in charge of the application process at the time. I do not know what my claim was and what was written as my application was proposed by my visa sponsor who supported me on my trip to Australia.

My idea of coming to Australia was to come and play [sports] professionally and legally. I was promised by my coach and his wife to come and stay for six months with working visa rights and study which was not fulfilled. Without having any knowledge of the immigration law and applying for certain visas I was advised by my coach and his wife that we should apply for protection visa which she proceeded with.

I am now being supported by my de facto partner [of] three years who has helped me stay in Australia financially and emotionally. We have been in a loving relationship and have been living together and she has been there for me. We are also expecting our first born baby on [date]. I am wanting to be with her and the baby on the day of the arrival and support her through her first pregnancy. I would ask if you could please reconsider my situation and advised me on what best to do here as I need to be there supporting her financially and emotionally.

I know understand and am aware that protection visa was not the right visa for my situation and hope that there are other avenues.

12. At hearing, the applicant confirmed the information in his letter above as the truth and confirmed that he does not rely on his original written claims and does not fear persecution or serious or significant harm in Fiji for any reason. He indicated a desire to remain in Australia because he has a partner who is pregnant with their first child, due [date]. He is not a gay man, he is straight. He therefore does not fear harm in Fiji because he is gay, (as implied by his written claims in the application) because he is not. The applicant gave evidence that there was no reason why he could not safely return to Fiji but he preferred to remain in Australia to support his partner. He lodged the application for review because he wanted to tell the truth and get the matter sorted out and because he wanted to stay in Australia, not because he fears returning to Fiji for any reason. The applicant was advised that the Tribunal is only looking at the protection visa provisions of the legislation and he should seek advice of a migration agent about the appropriate visa for him and his options in that regard.
13. The applicant said that it was the couple who organised their [sports] tour, [who] told him (and some other young men) on the tour to apply for a protection visa. He stayed with them until they moved to Queensland in 2017.
14. The applicant’s partner [and] her mother [were] available to give evidence and I spoke to them by telephone in the applicant’s (telephone) presence. They each expressed a desire that the applicant stay in Australia and confirmed that they had observed that he was unaware of the content of his protection visa application and wanted to get the appropriate visa so he could stay in Australia. They each stated that he is a good person who has contributed to his church community. The applicant’s partner had lodged a letter in support of the applicant and she confirmed that the content of that letter was true and correct. That letter notes that she has been in a relationship with the applicant for three and a half years, and that they are expecting their first [child]. She states and confirmed at hearing that she relies on the applicant for emotional and practical support and would like him to be here when the baby comes, and asked the Tribunal to advise on ‘what best to do’ so the applicant could be here when the baby comes. She also provides a character reference for the applicant.
15. The applicant has also provided a reference from [a sports club] which states, (amongst other things) that the applicant is a valued member of the community who contributes across many aspects of the club operations.

Does the applicant have a well-founded fear of serious harm in Fiji?

16. According to s.5J:

(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.

17. I accept the applicant’s evidence as given to me in his letter of 5 March 2020 and at hearing. I accept that he came to Australia to play [sports] for six months, that his application for protection was based on incorrect claims of which he was unaware, that he has not experienced discrimination or harm in Fiji because he is a gay man or for any other reason and that he does not fear harm of any kind in Fiji. I accept that he wants to stay in Australia so that he can be with his partner and expected child. .
18. Although the applicant did not raise it as a claim of harm, I accept that separation from his partner and future child in the event he must return to Fiji would potentially be distressing for him I have considered the applicant’s new claim (although it was not framed that way by the applicant specifically) about being separated from his partner and child. I do not accept that the distress caused by being separated from his partner and child (even if it is at a level which would be considered serious harm) amounts to persecution for any of the five reasons in s.5J(1)(a). The harm would arise, not due to the act of any persecutor, but due to the physical act of separation from his partner occasioned by the applicant’s departure from Australia.
19. I have considered all of the applicant’s written and verbal claims. Based on the applicant’s direct and unequivocal evidence, I find that he does not fear harm of any kind if he returns to Fiji. On the evidence before me, I find that there is not a real chance that he will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Fiji. I have found that harm caused by being separated from his partner and child would not be due to persecution for any of the reasons in s.5J(1)(a). Consequently, I find that the applicant does not have a well-founded fear of persecution in Fiji, and conclude that he is not a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary Protection

20. The applicant has expressly stated that he was unaware of and does not rely on the claims in his written application for protection, and does not fear harm of any kind on being returned to Fiji. At hearing, and despite being given the opportunity, the applicant raised no new claims about any other harms he would face if he is returned to Fiji. As noted above, he did express a desire to remain in Australia with his partner and expected child, which I have given some consideration above under the refugee criteria. Although he did not raise it as a claim in its’ own right, I have also considered whether the act of removing the applicant from Australia (and any distress caused to him because of that separation from his partner and child) falls within the scope of s.36(2)(aa).
21. However for the reasons that follow, I do not accept that the actual act of removal of the applicant from Australia falls within the scope of s.36(2)(aa), as it would appear from the words of s.36(2)(aa) and s.5(1) that these provisions do not encompass harm of this nature.
22. In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).^[[1]] The Court upheld the reasoning of the Federal Magistrate at first instance, which turned on the relationship between various aspects of the complementary protection provisions. Firstly, the Court had regard to the reference in s.36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.^[[2]] Secondly, the Court reasoned that the qualifications in s.36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss.36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application.^[[3]] Further, the Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.^[[4]] Lastly, the Court in SZRSN v MIAC had regard to the ‘intention’ requirements in the s.5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.^[[5]]
23. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s.36(2A). As such, it appears that although the risk of significant harm envisaged by s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself
24. I have considered the applicant’s accepted evidence as a whole (as outlined earlier in this statement of reasons) against the criteria in s.36(2)(aa). Based on his direct evidence, I do not accept the applicant’s written claims that there is a real risk that he will suffer harm (significant or otherwise) if he is returned to Fiji for any reason (including because he is a gay man (which he is not) or due to poor economic conditions and hardship of any kind). Even though he did not raise it as a specific claim, I have also considered the distress he will experience in being separated from his partner and expected child but have found that such harm would not be ‘significant harm’ as defined in the Act and would not engage Australia’s protection provisions under s.36(2)(aa).
25. After giving consideration to the applicant’s evidence and my findings, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Fiji, there is a real risk that the applicant will suffer significant harm.

Conclusion

26. The applicant is not a refugee pursuant to s.5H and is not a person owed protection pursuant to the complementary protection provisions. 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.


Anne Grant
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

...

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

...

^[[1]] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.
^[[2]] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62].
^[[3]] Ibid at [63].
^[[4]] Ibid at [64].
^[[5]] Ibid at [65].