1413087 (Refugee)

[2015] AATA 3922

1413087 (Refugee) [2015] AATA 3922 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413087

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Christine Cody

DATE:18 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2015 at 3:34pm

STATEMENT OF DECISION AND REASONS - APPLICATION FOR REVIEW

BACKGROUND

1. The applicant is a national of Fiji who seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that she is a refugee or entitled to protection under Australia’s complementary protection provisions. After being informed that the Tribunal had insufficient evidence before it to make a favourable decision, she was invited to attend a hearing on 15 December 2015 before the Tribunal to give evidence and present arguments. She is represented by a registered migration agent. She declined to attend the hearing, without explaining her reasons why. The following background is relevant.

2. She first arrived in Australia [in] July 2001 as a visitor. She left Australia, then returned again as a visitor [in] May 2008. Her visa was valid until [date] May 2008, however she did not depart Australia.

3. She remained in the community unlawfully from [date] May 2008 until [date] July 2010. She then sought permission to lodge a carer visa onshore in August 2010, which was refused in September 2010.

4. She applied to the Department of Immigration for her first protection visa [in] November 2010, seeking recognition as a refugee. She claimed that she left Fiji on a tourist visa to come and visit her brother and see [Australia]. News from home says that one has to be careful of what one says or does about the government. Soldiers are heading the civil service departments and there is not much one can do. Jobs are getting scarce now in Fiji. If she goes back now, at her age, there is nothing she can do back home especially due to the law that the retiring age is now 55 years. She won’t be able to get into the work force. She thinks the soldiers may mistreat her. She has been away from Fiji and they think that people who have been away from Fiji say bad things about it, so if she goes back they will make sure that she doesn’t leave the country again. The authorities cannot protect her because they have other important things to worry about than her.

5. Her application was refused by the delegate in June 2011 and the applicant applied for review with the Refugee Review Tribunal (“the first Tribunal”), which was differently constituted. The first Tribunal affirmed the delegate’s decision on 14 February 2012.  [In] April 2012 she applied to the Minister pursuant to s417 of the Act; the Minister refused to consider and accept her application [in] June 2012.

6. She then sought permission to lodge a partner visa application onshore [in] July 2012. This was refused [in] August 2012.

7. She again remained in the community unlawfully, from [date] October 2012.

8. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. On 24 March 2012, the complementary protection provisions were introduced. On 3 July 2013, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (hereinafter referred to as “SZGIZ”) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

9. The applicant applied to the Department of Immigration a second time for a protection visa pursuant to SZGIZ [in] December 2013 (it was claimed in the agent’s recent submissions that due to personal particulars not being completed correctly, her second protection visa application, originally lodged in October 2013, was deemed invalid). The applicant’s claims are set out in her protection visa application lodged with the Department; her birth certificate, submissions and country information were also provided to the Department. The file also contains a copy of the recording of the interview with the delegate; and the delegate’s decision record (which refers to her evidence given at interview as well as country information).

10. According to those documents, her claims are that:

    ·     She was born in [village, town], Fiji, and is now aged [age]. She resided, until May 2008, in [name] village in [town]. She has [years] of education, including [academic study], and she achieved her [certificate] in [year]. She worked as a [occupation] from 1999 until April 2008. Her religion is Methodist Christian and her ethnicity is “Fijian”.

    ·     She left Fiji out of fear that she would be subjected to harm from military officials due to her political opinions. She told her employer and the authorities that she was visiting her [sibling] as she thought that would be easier. Although she obtained her passport, there was an extended delay in processing it.

    ·     Threats have been made to her family and it is inevitable that physical harm would result to her given her political views if she returns to Fiji. Anyone who speaks out about the military will be subjected to torture by the military.

    ·     She has [siblings] in Fiji and they are both receiving threats, such as anonymous phone calls in the night, threatening them and their families that the houses would be burned down and their families killed. These threats made on the basis that they are both strong supporters of the SDL political party. She is also a supporter of the SDL party, and was told by her [siblings] that since she is the loudest, most outspoken sibling in the family, the military will silence her if she returns. She also supported anti-regime political parties when she was in Fiji, and believes she will be targeted for her known opposition to the regime. She fears she will be targeted because of her known previous assistance to the SDL parties campaigning and for expressing her opinions against the regime and its policies and agenda.

    ·     If she is forced to return she fears she will be taken to the military barracks for interrogation and mistreatment for voicing her political opinion. She will not be able to stand by quietly while civil liberties are being eroded. She is unable to accept the situation in Fiji currently, particular the strict censorship of the media and the recent public order decrees.

    ·     Since arriving in Australia she has become a member of the Fijian Democracy Associations and she has been a strong supporter and attends meetings.

    ·     As she has remained in Australia since 2008, she fears that her lengthy and unlawful stay in Australia will further confirm her position of being in opposition to the regime and its policies and agenda. As a consequence of her lengthy stay it is likely that her views against the regime have become known in Fiji through word of mouth, and her activities in Australia with the Fiji Democracy Movements.

    ·     She has expressed her political views against the regime on social media such as Facebook since arriving in Australia.

    ·     It has been confirmed to her by her relatives in Fiji, who hold office in the army, that her name, along with other opponent’s names, has been blacklisted. Her relatives are continually telling her not to return to Fiji.

    ·     She does not wish to live in constant fear of interrogation, discrimination and/or physical harm from the regime. She faces harm because she will continue to express her political opinion; she has negative views about the regimes’ activities.

11. The applicant attended an interview before the delegate [in] May 2014 and provided additional information[1]:

    ·     She calls a [radio show] and makes comments against the current government. She identifies herself by full name when making these calls. She calls [frequently] and has been doing so since 2012.

    ·     She believes that she will be questioned by the military about the comments that she has made on this show if she returns to Fiji.

    ·     She makes comments about the current Fijian government on Facebook. She makes comments on political Facebook page.

    ·     She also comments on articles from blog website Coup 4.5 and makes her thoughts well-known.

    ·     She fears that news will spread from the comments she has made on Facebook and she will be interrogated by the military if she returns to Fiji.

    ·     She has been to two meetings of the “Fiji Democracy Movement” [in] 2013. These meetings discussed the SODELPA and financial support for this party. She claimed she did not have any other involvement with this group and that she had not been involved in any other groups.

    ·     She wishes to vote in the upcoming Fiji elections and is going to write a letter to register. She was not able to register before the time because the [radio station] provided the wrong information.

    ·     If she had to return to Fiji, she would continue to be politically active and join the campaign for SODELPA.

    [1] The source of the information provided is set out in the delegate's decision record which the applicant provided to the Tribunal (unless otherwise specified).

12. The delegate sought evidence about the applicant’s Facebook posts and her participation in the [radio show]. After the interview, representations were made on behalf of the applicant as set out below.

13. [In] May 2014 the applicant emailed the delegate stating that she tried with a friend to retrieve her bad comments on Facebook but they had all been deleted by the owners page and she now realises that the comments do not occur on her page, but only on the pages of those she comments on. Concerning the radio talkback show, it was very hard to even get started. She is not very good in computer.

14. [In] June 2014 the applicant’s agent responded, stating:

    ·     Many posts were made by the applicant to personal pages, which have since been deleted. Others have unfriended or blocked the applicant as a result of her obscene anti-regime posts or comments in reply to posts by others.

    ·     Various posts were also submitted by the applicant to public anti-government group pages. These pages receive many posts and comments from many users, some of whom hide behind fake accounts. The applicant is unable to determine who the moderators of these anti-Fiji pages are. That means the applicant has no control over the lifespan of the comments, and such posts can be deleted without her knowledge. This has resulted in the applicant having difficulty to source the old posts made to these pages.

    ·     Despite this, the applicant has been able to source some comments to exemplify her activity on Facebook and depict the nature of some of her Facebook posts. As a result of her political expression, she received a threatening message to her Facebook account inbox which states: “[message deleted]…”

    ·     The applicant has had various conversations with employees at the radio station asking if they could find any record of previous calls. She was unsuccessful in obtaining any record of her calls even with the assistance of her friends.

15. The delegate refused to grant the visa [in] July 2014, having considered the claims on the grounds of refugee and complementary protection. This is an application for review of that decision.

    The Tribunal

16. The applicant provided a copy of the delegate’s decision record to the Tribunal.

17. On 30 November 2015, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the 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 on 15 December 2015. The Tribunal sought (in accordance with the Practice Direction) a written submission setting out all claims made and maintained by the applicant by 8 December 2015, accompanied by a signed declaration from the applicant that the submission has been read and explained to her and that it accurately and completely presents her claims. The Tribunal also requested that any evidence of any activities be provided to the Tribunal by 8 December 2015. Further, by the same day, the Tribunal requested that if a witness was to give evidence, a witness statement be provided to the Tribunal in advance.

18. On 8 December 2015 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. The Tribunal was also advised that the agent would not be attending the proposed hearing. The Tribunal thus decided to determine this matter, without hearing, on the evidence available to the Tribunal.

19. On 14 December 2015, submissions, including country information, of about 80 pages, were provided to the Tribunal, with a confirmation that the applicant would not be attending the hearing.

20. The Tribunal has considered country evidence that was provided by the applicant, including as referred to in the delegate’s decision record, referred to by the witness, and in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Fiji, 14 April 2015 (the DFAT report).

21. The applicant was represented by her registered migration agent of [name], in relation to her second protection visa application to the Department, and in relation to the review.

22. The Tribunal has referred to the evidence and information before it when relevant, below. The Tribunal notes that all references to the applicant’s evidence at interview are sourced from the delegate’s decision record provided to the Tribunal by the applicant, unless otherwise stated.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

    The Effect of SZGIZ and its relevance to this review

23. The Tribunal’s understanding of the reasoning in SZGIZ is that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and thus should proceed on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

24. The Tribunal notes the decision of the Federal Circuit Court in SZVCH v MIBP [2015] FCCA 2950 which indicates that in a case such as this case, where a valid application has been made to the Department, and the Department has considered claims under both the Refugee Convention in s.36(2)(a) and the Complementary Protection provisions in s.36(2)(aa) of the Act, the Tribunal should also consider claims under both.

25. However, after the decision in SZVCH, there has been another decision of the Federal Circuit Court in SZQTJ v MIBP [2015] FCCA 3226. This case found that considered that the correct approach is to consider only claims in relation to the complementary protection criterion in s.36(2)(aa) (where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a)). The court found that, the approach in SZVCH is inconsistent with the clear words of s.48A and with SZGIZ, which makes clear that a second application can only be made relying on a different criterion. The decision in SZVCH cannot be reconciled with the binding authority of the Full Court and is wrong.

26. As a later judgment that directly considers SZVCH, SZQTJ should be regarded as stronger authority. In light of this authority, the Tribunal found it correct to consider only the applicant’s claims only in relation to s.36(2)(aa) of the Act (however, in the event that the Tribunal is wrong in its approach to the judgement in SZGIZ, it has made alternative findings below). The relevant law, in addition to that discussed in the body of this decision, is set out in Annexure A (that Annexure also contains the law relating to the Refugee Convention criterion in s.36(2)(a)).

    Complementary Protection provisions in s.36(2)(aa)

    Country of reference

27. The applicant produced to the Tribunal a certified copy of the identification page of her passport. The Tribunal accepts that the applicant is a national of Fiji, and that the receiving country for the purposes of her complementary protection claims, is Fiji.

    Concerns about the applicant’s claims

28. The applicant claims to fear persecution and/or significant harm. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

29. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

30. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

31. In the circumstances where an applicant does not attend a hearing to which she is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

32. The Tribunal has considered on the evidence before it whether there is a real risk that the applicant faces significant harm in Fiji (or, as discussed later, a real chance that the applicant will be persecuted within the meaning of the Convention if she returns to Fiji in the reasonably foreseeable future). She declined to attend a Tribunal hearing at which she could have had the opportunity to provide necessary details of her claims, noting that she had been advised that the Tribunal had insufficient information before it to make a favorable decision on her behalf.

33. The agent submitted that a common cultural and personality trait appears to exist in many Fijian people resulting in them being reserved when it comes to personal matters. It is submitted that this “conservative” manner is even evident within the Fijian media. It was noted that a Professor Robert Hooper had published an academic paper in 2013 “When the barking stopped: censorship, self-censorship and spin in Fiji”, where he claimed that although the government insists Fiji’s media are completely free to report what they want, this is not in fact the case at all due to fear and reservations held by the people. On this basis, it was submitted that cultural reservations hindered the applicant in explicitly detailing her claims for protection with her initial application, and that such reserved cultural behaviour be considered for the applicant’s current review application.

1. While there may be some evidence that some Fijian people may be reserved, the applicant claims the opposite about herself. For example, in the initial submissions made to the Department, it was submitted that the applicant is generally known as the outspoken and loud sibling of her family. She has expressed her views in Australia to friends and even in the public domain which includes a social media streams such as Facebook. It is also submitted that she supported anti-regime political parties while in Fiji. Thus, the Tribunal notes her claim that she is outspoken about political matters (the mainstay of her claims) and willing to put herself at risk, and to garner the adverse attention of the authorities when expressing her political opinion.

2. Thus, although it was suggested that Fijians may be reserved, the applicant claimed that she was effectively passionate and outspoken concerning political matters. The Tribunal is not satisfied, on the evidence before it, that there is anything in the applicant’s nature which could have prevented her from attending the hearing to answer questions about her claims (or explain why she chose not to do so). The Tribunal is not satisfied, on the evidence before it, that the applicant is “reserved”, and thus it does not accept that this can explain its concerns with her evidence. The Tribunal is not satisfied that the applicant has provided any sufficient reason for her non-attendance before the Tribunal. In these circumstances, a number of relevant questions about her claims remain unanswered, and cause concern.

3. The Tribunal has considered country information, and in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the DFAT report. The Tribunal would have discussed relevant sections with the applicant at hearing; on the evidence before it, the Tribunal is not satisfied that the DFAT report (or the PAM Guidelines) change the Tribunal’s findings in the above paragraphs, or below.

4. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible. The Tribunal has the following concerns.

   The applicant’s claimed political activities while in Australia

5. The Tribunal was concerned about the applicant’s claimed political activities in Australia. The Tribunal notes the context that the applicant claims to have been politically active in Australia, and that the Fijian authorities are aware of her political activities. However, despite having been in Australia since May 2008, she claimed at interview that she only attended two meetings at “Fiji Democracy Movement” [in] 2013. As set out the delegate’s decision record, country information indicates that the name of the political organisation and movement in Australia is the Fiji Democracy and Freedom Movement (“FDFM”) and the delegate noted an absence of available information indicating a different organisation under the name of “Fiji Democracy Movement”. The delegate noted that in the circumstances it appeared that the applicant had provided an incorrect name for the organisation, and that she had provided no evidence of any involvement with this group or of her attendance at meetings, which caused the delegate to question the credibility of her claimed political involvement. The delegate also noted in the decision record, that the applicant had previously claimed that she had had involvement with the FDFM in her first protection visa application hearing before the first Tribunal, which claims were assessed and disregarded under s.91R(3) of the Act as it was deemed that this activity was solely for the purpose of strengthening her (first) protection visa application.

6. Given the concerns with her claimed political involvement set out in the delegate’s decision record (which was provided to the Tribunal by the applicant), the Tribunal was concerned that there was no attempt made by the applicant to provide any clarification about her political involvement in either FDFM or “Fiji Democracy Movement” in Australia. The Tribunal is also concerned, given her evidence at interview that she has not been involved in any other organisations, that she only claimed to have attended two meetings of “Fiji Democracy Movement” in Australia in the seven years she has been here. While the Tribunal has considered country evidence provided by the agent that some people may have a fear of harm outside of Fiji of expressing their political opinion, the applicant has claimed that she has been politically active in Australia, and that she has not been worried about the consequences of being politically active. In regard, the Tribunal notes for example her claim to the delegate at interview that whenever she called the radio station, she would give her full name when providing her opinions on air, including making anti-regime comments, because she wanted to identify herself.

7. While the Tribunal notes that it is not a requirement of a politically active person to join an organisation, it has been the applicant’s claim that she has joined, and has been politically active, in organisations in Australia. In the circumstances, the Tribunal considers that her evidence at interview, as set out in the delegate’s decision record, that she has not had any other involvement with “Fiji Democracy Movement” (other than attending two meetings), and that she has had no other involvement with political groups in Australia, both inconsistent with her evidence provided in her application form and the initial submissions (where she claims she has become a member of Fijian democratic associations, such as the “Fijian Democracy Movement (FDM)” in relation to which she has had a “lengthy period of membership”, and that she has been a strong supporter of anti-regime movements while in Australia, has attended meetings and arranged events by these anti-regime movements), and is not credible when considering her claims to have been in Australia for (now) eight years, and to have been politically active.

8. Further, the Tribunal considered that her evidence in her application form did not provide any specific details of her political activities in these organisations. In the circumstances, after the delegate referred to her evidence from interview in his decision record to the effect that she had not had any involvement in any other groups, she has made no attempt to provide any clarification of this inconsistent evidence, nor to provide details of her involvement and/or memberships in Australia.

9. The Tribunal has further concerns about her claimed social media activity (making comments against the current government in Fiji). The Tribunal notes that she told the delegate at interview that she made comments about political appointments and questioning of Bainimarama’s campaign funding on a political page that she initially said was followed by a lot of people, and then when asked, she said [number] people. The delegate questioned the credibility of her Facebook claims, and noted that she claimed to be unable to provide any evidence of her political Facebook activity, claiming that her comments had been deleted (but providing no reason for why her comments were deleted). The delegate also conducted research after the interview concerning the Facebook page that the applicant claimed she posted comments on, and a search of the “friends list” for that page showed [number] friends, but the applicant’s profile was not listed (when checked twice), which indicates that the applicant was not a “friend” of that page. The delegate seriously questioned the credibility of her claims regarding her activity on this Facebook page and considered that it was likely that if the applicant followed this page and made comments on this page, she would be listed in the “friends” list of the Facebook page. The Tribunal has similar concerns, and notes that despite producing the delegate’s decision record to the Tribunal, she has not attempted to respond to this (and other such matters).

10. The Tribunal also notes that, as set out the delegate’s decision record, the applicant was provided with a printed copy of her Facebook profile and she confirmed this was her. When the delegate put to her that there was no evidence of political activity and no political comments on this profile, the applicant then stated that the comments she had made were not in her page, but were on the page referred to in the above paragraph.

11. The delegate noted in the decision record that the agent was informed by way of letter dated [in] May 2014 that the lack of evidence of the applicant’s Facebook activities may lead the delegate to question the credibility of her claims in that regard. The agent responded that the applicant had made comments on other pages. Also provided was an attachment containing several brief comments on photos, which it was said were comments made by the applicant on Facebook. However, as noted by the delegate in the decision record, there was serious credibility concerns with that piece of supporting documentation, noting that the documentation provided no indication of the source, meaning there was no indication that the comments were posted on Facebook or any other specific social media site, nor is there any indication of what page the comments were made on, nor do the comments display any of the familiar Facebook formatting. The delegate questioned that this was a credible document, and did not consider that the comments were legitimate posts made by the applicant on Facebook or any other social media site. The delegate also noted that it would appear that the applicant should have been able to provide copies of genuine posts made on Facebook or other social media sites at an earlier stage if her claims were credible.

12. The Tribunal notes that the applicant has provided no clarification of any of the concerns raised by the delegate in the decision record, nor any further explanation about her Facebook activity. The applicant claims that she is openly politically active in Australia, that she has been politically active on Facebook, and she is not afraid of revealing her name. While noting (in relation to this aspect, and other aspects of this decision) that an applicant is not required to provide documentary evidence of her claims, the Tribunal has considered the earlier explanations made to the delegate, but does not find them persuasive. Further, the Tribunal is not prepared to accept as genuine the claimed Facebook posts provided by the applicant after the interview.

13. Further, the Tribunal is concerned with the applicant’s evidence to the delegate at interview (in May 2014) that she did not make political posts on her own Facebook profile (which it seems would not have been deleted unless she did so), given her claims to be outspoken and her claims to be prepared to make public political comments.

14. The Tribunal also notes that the applicant claimed to have received a threatening message to her Facebook account. The delegate provided concerns about this claimed threat in the decision record, including that there was no information about the source of the message, and there was no date or time that the message was sent, which appeared inconsistent with her claim that it was received through Facebook. The delegate noted that she could have printed or obtained a screenshot from her Facebook account of the threats, and that if it was received through Facebook, it would be likely dated and timed, and would have come from another Facebook account with the name of the sender on it. The delegate considered that the message was fabricated for the purpose of the application and noted it was claimed that the applicant received the threat only after her agent was informed of credibility concerns regarding her claims.

15. Although these concerns were raised in the delegate’s decision record, there has been no attempt at clarification or explanation by the applicant. The Tribunal considers that the issues raised by the delegate in the decision record cause concern, and yet the applicant has not offered explanations for these matters. In the circumstances, the Tribunal is not prepared to accept the assertion that a threat was received (after the delegate raised the issue of the credibility of her claims) by the applicant through Facebook.

16. The applicant also asserted that she made comments against the current government on radio in Australia. As set out the delegate’s decision record, she stated at interview that she had been making political comments since 2012, [on a regular basis] on a [radio show], which broadcasts between [hours] on [a certain day]. She reported no other involvement with the radio station. She told the delegate at interview that she could obtain evidence from someone at the radio station, however after the interview she claimed she could not obtain any evidence.

17. The delegate referred to in the decision record to a letter of support from [name] of the [radio station] dated [in] September 2011 that the applicant had provided with her previous s417 Ministerial Intervention request. The letter stated that she is a voluntary member of “our” broadcasting team and while engaged during the radio program, she has shown a lot of interest in communicating with the general public and has a great command of English languages and generally Fijian languages.

18. The delegate stated in the decision record that this letter indicated that she was a volunteer for the radio station; it was also noted that her agent’s letter [in] June 2014 stated that the applicant used to assist the radio station, but provided no details of her involvement. The delegate noted that the supporting information previously provided to the Department was not consistent with the applicant’s account provided at interview which caused the delegate to question not only the credibility of her claims, but also the credibility of the supporting letter. The delegate also noted that although she had previously provided a letter of support from the radio station, she failed to provide a letter of support from the radio station now concerning her claimed political comments made on air, using her full name.

19. Again the Tribunal considers that the issues raised by the delegate in the decision record, provided to the Tribunal by the applicant, are of concern. The Tribunal notes however that the applicant has not provided any credible explanation or clarification to it concerning these matters although she provided the decision record, where these matters are raised.

20. Given the claimed earlier supporting letter that she had been working at the radio station, the Tribunal considers she could have provided an explanation for the matter raised in the delegate’s decision record (that she had previously provided evidence from the radio station, but had not done so now). On the evidence before it, the Tribunal is not prepared to accept her assertion (or supporting letter) as to her involvement in this radio station.

21. The Tribunal has considered that the applicant, at interview, was able to say that at the two meetings she attended in Australia involved discussions about Sodelpa Party, Ro Teimumu and financial support for the party; and she was able to state that the elections were scheduled to take place in September 2014 in Fiji. However, the Tribunal is not satisfied that this overcomes its concerns about her claims.

22. The Tribunal has considered the agent’s submission to the Department that although the first Tribunal decided to disregard the applicant’s activities in Australia as it was deemed that these activities were undertaken in an attempt to strengthen her claims for protection, her activities since entering Australia are consistent with her genuine objection to the regime in Fiji and her actions have not been orchestrated to strengthen her claims remaining in Austria, but rather are indicative of her feelings concerning the regime in Fiji and consistent with her actions and beliefs prior to leaving for Australia. However, the Tribunal is not satisfied that there is credible evidence of any activities in Australia other than that she had in the past worked as a volunteer for a [radio station] and the Tribunal is not satisfied on the evidence before it that this is a claimed political (or imputed political) activity which would lead to a real risk of significant harm (or a real chance of serious harm).

    The applicant’s activities in Fiji

23. The applicant asserted that she had been politically active in Fiji, and that she had been a member of the SDL and continues to support SODELPA. She also asserted that she would be politically active if she returned, and that the previous activities in Fiji, her activities in Australia (which are not accepted) and her future activities, would lead to her being harmed in Fiji. The Tribunal is not prepared to accept the applicant’s assertions as to her past activities in Fiji, particularly having regard to the significant credibility concerns about political activity referred to above.

    The Tribunal’s findings of fact

24. The submissions make claims which are said to be subjectively relevant to the applicant, indicating that she faces persecution for Convention-based reasons, namely due to her known opposition to the current regime (as she has been informed that it has knowledge of the same), her previous actions and experience in Fiji, and her support of/involvement in/membership of anti-regime bodies in Australia (she has been informed that her political activities have been transmitted back to the authorities in Fiji), as well as her lengthy stay in Australia which will lead to an imputed political view “and further confirm her position of being an opponent of the Fijian Military Regime, its policies and agenda”. It is claimed that she opposes the current regime, and submits the relevant Convention reason of political opinion as to why she would be subjected to persecution, and that she would face significant harm (arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment), in the form of acts of violence, intimidation, detention (where she would be abused) and assault, discrimination and abuse from the authorities.

25. It was also submitted in the submissions that the applicant’s fear is well-founded when considering her anti-regime stance, and country conditions for example because the Anti-Fiji Torture demonstration outside Fiji High Commission in New Zealand on 15 March 2013 only attracted 20 people, despite extended publicity. It was asserted that the low turnout was attributed to the fear among local Fijians who fear their identity and their views in support of anti-regime bodies becoming public and being transmitted back to the authorities in Fiji. It was asserted that this has already occurred in relation to the applicant (namely that the authorities in Fiji are aware of her activities, and that she is suspected of being black listed).

26. The Tribunal does not accept these claims or submissions on the evidence before it. The Tribunal is not satisfied that the applicant left Fiji out of fear of harm, nor that she has any political opinions that she has expressed or that she would express (the Tribunal is not satisfied that she would like to express opinions but is fearful to do so). The Tribunal is not satisfied that the applicant or her [siblings] have had any political involvement. The Tribunal is not satisfied that the applicant had any difficulties in having her passport obtained.

27. The Tribunal is not satisfied that the applicant’s family have received threats, either in connection with the applicant, nor with any of their own activities, nor that there is any reason for anyone to harm the applicant, or her family members, in Fiji. The Tribunal is not satisfied that there is any reason for the applicant to be taken to the military barracks, nor for her to be subjected to any harm from any authorities (or society).

28. The Tribunal is not satisfied that she has been informed by relatives that she was blacklisted, or that she should not return home, nor that there is any chance or risk that she has been blacklisted.

1. The Tribunal is not satisfied that the applicant has undertaken any political activities, expressed any political opinion, while she has been in Australia. The Tribunal is not satisfied that she has been a member of any organisation in Australia (it has only accepted she volunteered in the past for a radio station which it does not consider is relevant to her claims), nor that she has expressed political opinions on social media or on radio or elsewhere since being in Australia. As the Tribunal is not satisfied that the applicant has had any political involvement in Australia, it does not accept that she will face any consequences upon return to Fiji for that reason.

   The applicant having spent time in Australia/ failed asylum-seeker

2. On 26 June 2013, the Department of Foreign Affairs and Trade (DFAT) provided the following advice[2] in response to the Tribunals’ request of 29 May 2013:[3]

   As requested post provides the below updated response to the questions from DIAC’s Country Research Section originally sent on 23 September 2010.
   Question 1: What risk of harm is faced by the following categories of people on return to Fiji (including how such people might be identified or targeted and whether the risks are the same throughout Fiji):
   …
   g) People who have unsuccessfully sought protection as refugees in Australia.
   We are not aware of cases where unsuccessful protection visa applicants have been subject to harm by the regime unless they are also otherwise high profile regime opponents.
   …
   i) People who have been returned to Fiji from Australia, whether or not as unsuccessful protection visa application applicants, or those who are simply returning from periods abroad.
   

   [2] 2013, DFAT Report No. 1517 – Fiji: RRT Information Request FJI42283, 26 June.

   [3] RRT Country Advice Service 2013, Email to DFAT, RRT Country Advice Service Request – FJI42283, 29 May.

   We are not aware of cases where individuals have been subject to harm simply as a result of travelling abroad, including to Australia. As outlined above, were the individual to be high-profile activist or anti-regime campaigner then this would draw attention from the regime and could result in intimidation or harassment.

3. The Tribunal considers that the country information before it does not support a finding that there is a real risk (or real chance) of the applicant being imputed with a political opinion leading to a real risk or real chance of any harm, or generally facing any harm as a result of returning from Australia, having spent time in Australia lawfully and unlawfully, or having lodged a protection visa application (particularly given that this process is confidential).  On the basis of the confidential nature of the applicant’s claims for protection and the above country information the Tribunal is not satisfied on the basis of the evidence before it that there is a real risk (or chance) of the applicant being harmed as a result of her return from Australia or her failed protection visa application.

   The security and general situation in Fiji

4. The Tribunal has taken into account the country evidence provided to the Department, and the agent’s submissions concerning the country information and in particular the claim by the agent that events that have occurred “since” she lodged her first protection visa application. The Tribunal notes that a number of the articles and reports provided by the applicant date from before the most recent elections (discussed further below).

5. The submissions attached a copy of the DFAT Report, a copy of the US DOS Human Rights Report dated 2013, a copy of the Foreign and Commonwealth Office, UK report, 2012, together with other reports and articles relating to the situation in Fiji.

6. Reference was made to political opposition, limiting of media reporting on political matters, powers to detain people, violations of human rights enshrined in the Universal Declaration on Human Rights. It was claimed that the abrogation of the Constitution, the promulgation of the Public Emergency Regulations (which the submissions note have since been lifted, although they state that the regime has installed new public order decrees which it is submitted provide other means to oppress political opposition), the dismissal of the judiciary (in April 2009), arrests and detention of those people opposing or perceived to oppose the regime, and intimidation of activists, have led to a climate of fear and desperation in Fiji. The submissions referred to the elections held on 17 September 2014, noting that this resulted in Mr Bainimarama becoming the elected Prime Minister by winning 60% of the ballot. It was submitted that the elections were not fair and thus “it seems that even with the apparently democratically elected government, nothing in Fiji has changed”. This submission however is inconsistent with the DFAT report to which the Tribunal is required to have regard, which states that Fiji is generally stable and secure, and the elections in 2014 were calm and free of violence[4]. The most recent USDOS Country Report on Human Rights Practices for Fiji (2014) notes:

   Following eight years of military rule, Fiji held general elections on September 17 in accordance with the constitution promulgated in 2013. In a contest deemed credible and “broadly reflecting the will of the Fijian people” by the Australian-led Multinational Observer Group, citizens elected 50 new parliamentarians. Josaia Voreqe (Frank) Bainimarama’s Fiji First Party won 32 of the 50 seats and he was sworn in as prime minister. Bainimarama led a bloodless coup in 2006. In 2009 his interim government abrogated the existing constitution and then ruled by decree until national elections returned the country to a constitutional republic during the year. Civilian authorities regained effective control over the security forces after the general elections[5].

   [4] Paragraph 2.48 of the DFAT Report

   [5] USDOS Country Report on Human Rights Practices for 2014, Fiji.

7. It was submitted that since the coup, human rights in Fiji have been eroded, and the applicant can in no way effectively exercise basic freedoms, irrespective of the perceived democracy that Fiji is now said to be enjoying. Reference is made to former DFAT officer stating that Fiji still has a long way to go in improving its democratic credentials.

8. The Tribunal is not satisfied on the evidence before it that the applicant faces a real risk (or real chance) because of the country conditions generally, of any of her rights being adversely affected such as to amount to significant harm or serious harm. The Tribunal does not accept that the applicant has any desire to speak out about the country conditions or any specific matters upon her return (noting her lack of political activities in Fiji, her lack of political activities in Australia, as well as the overall credibility concerns). The Tribunal does not consider that the applicant’s failure to speak out in Fiji did, or would in the future, involve a suppression of her voice because of the country conditions; instead the Tribunal is not satisfied that the applicant has had or would have the desire to speak out, and it does not accept that there is any chance that she would wish to speak out against the regime or events or infringement of rights upon return to Fiji or in the future. The Tribunal is not satisfied that the applicant has explained satisfactorily how her rights face a risk or chance of infringement amounting to signiifcna tor serious harm. 

9. It was also submitted that there had been numerous instances of Fijian citizens being subjected to brutal beatings, and acts of torture, some of which have been caught on camera. The submissions did not specify why these citizens had been harmed, however the Tribunal notes for example that one of the articles provided with the submissions referred to an Australian citizen of Fijian descent having claimed that he was assaulted by soldiers of the Fijian military when he visited Fiji in 2014, noting he has made public statements in Australia opposing some of the political developments in Fiji[6], another referred to escaped convicts being beaten (with footage). It was not stated in the submissions why the applicant faces a real chance or real risk of this occurring to her (as a citizen), other than because of her claimed or imputed political opinion, which the Tribunal does not accept. The Tribunal is not satisfied on the evidence before it that she faces a real risk of significant harm (or a real chance of serious harm) in the form of being a citizen subjected to beatings or acts of torture.

   [6] See tf45

10. The Tribunal is not satisfied on the evidence before it that the applicant seeks to undertake any activity (or omission) which would lead to a real chance or a real risk that she cannot, exercise the basic freedoms. Although there are instances where people face harm in Fiji, as referred to in the country information provided by the applicant and in the DFAT report and the 2014 USDOS Report, the Tribunal is not satisfied on the evidence before it that this means that the applicant faces a real risk of significant harm (or a real chance of serious harm) on the basis of general country conditions, especially post-election.

11. As noted in the delegate’s decision record, the applicant asserted in her first protection visa application that she would not be able to work in Fiji. The Tribunal notes that in her protection visa application form, she claimed to have worked for a number of years in Fiji; she has not attended before the Tribunal to explain her particular circumstances, or to explain why she believes that she faces a real risk (or real chance) of either not being able to work, or not having support. The Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of significant harm (or a real chance of serious harm) in relation to her economic survival or her financial situation.

12. The Tribunal also notes that the applicant is a woman, and although the DFAT report refers to societal discrimination against women, the applicant herself did not make any claims that she had faced, or feared that she would face a real risk of significant harm, or a real chance of serious harm as a woman. The Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of significant harm (or a real chance of serious harm) on the basis of her gender.

13. The applicant claims to be a Methodist. She did not claim in her application form to fear harm on the basis of her religion. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real risk of significant harm (or a real chance of serious harm), on the basis of her religion.

14. The Tribunal has considered the applicant’s circumstances individually and cumulatively.

15. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible concerning her background, past harm, or future harm feared, and other than those claims accepted above, the Tribunal rejects all the various claims made and finds that there is no basis for the applicant's claims to fear significant harm. The Tribunal is not satisfied that there are substantial grounds for believing, that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Alternate finding - Refugee claims in relation to the applicant

16. Although the Tribunal has found the law as set out above (namely the interpretation of SZGIZ pursuant to the later Federal Circuit Court decision of SZQTJ), it notes that the delegate made findings in relation to the Refugee Convention claims, and the agent made submissions on the basis of the Refugee Convention being applicable in this case with no specific reference to SZGIZ). In the event that the Tribunal is wrong in its interpretation of SZGIZ, it has also considered the interpretation of SZGIZ as set out in SZVCH.

17. The Tribunal has considered what the outcome would be if it had the power to consider the applicant’s claims under the refugee criteria. The Tribunal considers that the appropriate country of reference for the assessment of any refugee claims would be Fiji. For the reasons set out above, the Tribunal is not satisfied that the applicant’s claims are credible (other than as accepted above) nor does it accept that her claims of past involvements or future feared harm are truthful. The Tribunal has not accepted that the applicant’s claims relating to her political activities, political opinion, imputed political opinion, that she is on the blacklist, threats, that her family members have been targeted, or that anyone has had an adverse interest in the applicant when she was in Fiji, or since she has left Fiji, nor that she faces a real chance of serious harm as a result of her time spent in Australia, her protection visa application, nor that she will be imputed with any adverse political opinion. It does not accept that she faces a real chance of serious harm for any Convention reason, including for political, economic or financial (or even gender or religious) reasons. 

18. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for a Convention reason now or in the reasonably foreseeable future, if she returns to Fiji.

19. On the basis of the findings of fact set out above, if the Tribunal was to consider the applicant under the refugee criteria, the Tribunal would find that it is not satisfied that the applicant has a well-founded fear of persecution for any Convention-related reason in the reasonably foreseeable future if she was to return to Fiji. Accordingly, the Tribunal is not satisfied that, even if the applicant was able to apply under s.36(2)(a) of the Act, that she would meet the refugee criterion in s.36(2)(a).

    Member of family unit

20. 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).

    CONCLUSIONS

21. There is no evidence before the Tribunal to suggest 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.

22. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

23. The Tribunal is of the view that it does not have jurisdiction to consider whether the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention (the criterion set out in s.36(2)(a)). The Tribunal considers that even if it were wrong in that regard, the applicant does not meet the refugee criterion in s.36(2)(a).

24. Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.

    Christine Cody

    
    

    Member

    ANNEXURE A - RELEVANT LAW

    Note: this is the relevant law applicable when the Tribunal is considering all of the three criteria for a protection visa; namely refugee, complementary protection, and member of family unit of the holder of a protection visa. The Tribunal has considered this law, albeit adapted to meet the relevant criteria as set out in SZGIZ.

25. 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, the applicant 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.

    Refugee criterion

26. 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 under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

27. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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.

28. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

29. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that 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. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. 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.

30. 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. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

31. 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 being persecuted for a Convention stipulated reason. 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.

32. 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 or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

1. Whether an applicant is a person in respect of 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.

   Complementary protection criterion

2. 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 a protection 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 the applicant 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’).

3. ‘Significant harm’ for these purposes 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. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

4. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.