N00/33506 [2001] RRTA 313 (29 March 2001)

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

The applicant, who is a citizen of Fiji, arrived in Australia and lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (the Act). Visa class XA includes two subclasses: 785 (Temporary Protection) and 866 (Protection). A delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection (class XA) visa. The applicant was advised of the decision to refuse the application by letter dated [date deleted in accordance with S431 of the Migration Act], which was sent to the applicant by registered post. Relevant post office records show that the applicant collected the letter on [date deleted in accordance with S431 of the Migration Act] (see Tribunal file folios 19 and 20). This date is therefore the date on which the applicant was actually notified of the decision. The applicant applied for review of that decision30 January 200030 January 2000. He was initially informed that his application had been lodged outside the statutory period of twenty eight days from the date on which he was notified of the primary decision; however, in accordance with the decision of the Federal Court in MIMA v. Harinder Pal Singh, the twenty eight day period must be taken to run from the date on which the applicant was actually notified of the decision, not the date on which he was deemed by operation of the Migration Regulations to have been notified. Accordingly, the application for review was validly lodged within the prescribed period and the Tribunal has jurisdiction to consider it.

The Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. When no response was received to the letter, an officer of the Tribunal spoke to the applicant's sister-in-law by telephone and was advised that the applicant did intend to attend the hearing. The applicant himself did not return the Tribunal's calls as requested. Finally, the Tribunal received written advice that the applicant wished to attend the hearing. Unfortunately the hearing had to be cancelled due to unforeseen circumstances, and the applicant was notified of this by telephone and in writing. The applicant was invited to attend another hearing. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. An officer of the Tribunal attempted to telephone the applicant on several occasions but the phone was not answered. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

Under s.65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for the grant of a protection (class XA) visa subclasses 785 and 866 are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 respectively and in s.36 of the Act.

Subsection 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. "Refugees Convention" and "Refugees Protocol" are defined to mean the 1951 Convention Relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively: s.5(1) of the Act.

Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them.

Article 1A(2) of the Convention defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The High Court has considered this definition in a number of cases, notably Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 and Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 170 ALR 553.

In Guo's case, the Court observed that the definition contains four key elements. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Not every threat of harm or interference with a person's rights for a Convention reason constitutes "being persecuted". In Chan's case Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage". In the same case, McHugh J said that the notion of persecution involves selective harassment, and that in appropriate cases it may include single acts of oppression, serious violations of human rights, and measures "in disregard" of human dignity. In Applicant A's case, his Honour stated that whether or not conduct constitutes persecution does not depend on the nature of the conduct but on whether it discriminates against a person for one of the Convention reasons. Persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase "for reasons of" serves to identify the motivation for the infliction of the persecution. However, the persecution feared need not be solely attributable to a Convention reason. It may be enough if race, religion, nationality, membership of a social group, or political opinion, is but one of several reasons for the persecution feared.

Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality. Whenever the protection of the applicant's country is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.

Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

The Tribunal has before it the Department's file, which includes the protection visa application. The Tribunal also has before it brief written submissions in support of the application for review.

In his protection visa application the applicant stated that he does not want to return to Fiji as he has lived in Australia since the late 1980s; he has no close relatives now living in Fiji, his wife and her family live in Australia, and he has two children who were born here and who will enjoy more opportunities and a better future in Australia.

In his application for review the applicant reiterated these matters. In addition he stated that the "government situation right now, in Fiji, is unbalanced and uncertain", and he does not want to return to a country where the heads of the nation are "embroiled in battle" and citizens are in fear for the safety of their lives.

It is evident from the information provided by the applicant that his primary reasons for wishing to remain in Australia and not return to Fiji concern his long period of residence in this country; his marriage to an Australian resident, with whom he has children; the absence of any close relatives residing in Fiji; and the presence of many of the applicant's and his wife's relatives in Australia. Further, the applicant believes that his Australian born children will have a better future in this country. Clearly, the applicant's reasons for not wishing to return to his country of nationality do not fall within the Refugees Convention, and cannot found a claim to refugee status. The applicant does not claim that he has ever experienced harm or ill treatment in Fiji for any Convention reason, such as would amount to persecution. Nor has he suggested that he would, in the reasonably foreseeable future, do so.

As to the applicant's claim that, at the time of his application for review, the political situation was uncertain, leaders were fighting and citizens were in fear of their lives, the Tribunal accepts that, at that time, in May 2000, the government had been deposed in a coup and its members were being held hostage. Martial law had been declared to stop looting and civil unrest which followed the coup. Subsequently, a degree of political stability was restored with the appointment of an interim government. That government has, however, recently been declared to be illegal by the Fijian High Court. Notwithstanding all these developments, and the continuing uncertainty in the political situation, the country is, at the present time, calm. In any event, there is no evidence before the Tribunal to suggest that the current political situation in Fiji poses any particular risks for the applicant, or that there is any real chance that he would be subjected to persecution for any Convention reason should he return to Fiji now or in the reasonably foreseeable future.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

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