1414679 (Refugee)

[2016] AATA 3959

1414679 (Refugee) [2016] AATA 3959 (3 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414679

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Louise Nicholls

DATE:3 June 2016

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 03 June 2016 at 9:24am

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. The applicants are husband and wife and they claim to be citizens of Fiji. The applicants arrived in Australia [in] February 1988 and have remained in Australia since that date. Their [temporary] visas expired [in] May 1988 and lived in Australia without visas until December 2007. The applicants have held a series of bridging visas since [December] 2007.

2. The applicants first applied for protection visas [in] September 2008 and their applications were refused by a delegate of the Minister for Immigration [in] December 2008. They sought review of those decisions and when they were unsuccessful they requested Ministerial intervention on two occasions.

3. [In] August 2013 the applicants made further applications for protection visas. They provided a number of documents including copies of their passport extracts, the applicant husband’s statement (26 June 2014), the applicant wife’s statutory declaration (25 June 2014), the representative’s submissions and a notification of incorrect answers (Form 1023).

4. The applicants attended an interview with the delegate [in] July 2014.

5. [In] July 2014 the delegate of the Minister for Immigration refused to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The delegate was not satisfied the applicants met the criteria for protection visas.

6. This is an application for review of the decision and it was made [in] August 2014.

7. The applicants provided a copy of the notification of the delegate’s decision dated [July] 2014 but did not provide a copy of the decision record.

8. The applicants also provided copies of;

   ·     Submissions made by the applicant’s representative in relation to matters of law.

   ·     Medical certificate from [a doctor] ([November] 2016).

   ·     Letters and discharge document from [a] Hospital ( [August] 2015 and [October] 2015).

   ·     Letter from [an Ambulance service] ( [October] 2015)

   ·     Supporting letters from the applicants’ son [Mr A], [name] and [name] and a letter from [a] City Council ( [November] 2015).

9. The applicant wife appeared before the Tribunal on 14 December 2015 to give evidence and present arguments. The applicant husband gave evidence by telephone. The applicants’ son [Mr A] also gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.

10. The applicant wife gave evidence about her family history, her current circumstances and her claims for protection. The applicant husband told the Tribunal by telephone that he did not wish to give evidence as he was sick. The Tribunal offered the applicant husband the opportunity to give evidence at a later time when he felt able to give evidence. The Tribunal explained that if he chose not to give evidence it could proceed and make a decision on the evidence before it. Despite this advice, he declined the offer of an adjournment and stated he did not want to come to the Tribunal to give evidence or to give evidence by telephone.

11. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

12. After the Tribunal hearing the applicants’ representative made submissions regarding a request to refer the application to the Minister for humanitarian intervention pursuant to s.417 of the Act.

13. For the following reasons the Tribunal has concluded the decision under review should be affirmed.

    RELEVANT LAW

14. The findings set out below are based on the legal principles contained in Attachment A.

    CONSIDERATION

    How does the Tribunal deal with a further protection visa application made before 28 May 2014?

15. The applicants applied for protection visas [in] August 2013. In their applications for protection (Form B) they stated they had previously applied for protection visas. In answer to Q.9 they stated they had been asked to leave Australia and had outstanding debts to the Commonwealth. They referred to previous DIAC files and cost orders from Court.

16. In submissions lodged with the application for the visa [1] the representative stated he had received instructions to lodge an application for complementary protection visas under s.36(2)(aa) of the Act. He submitted that the application was expressly made in reliance on s.36(2)(aa). The submission also refers to the previous visa application made by the applicants which was assessed under the Refugee’s Convention and not on any other basis.

    [1] DIBD File CLF [number] p.51-53

17. At the Tribunal hearing held on 14 December 2015 the applicant wife gave evidence that she and her husband applied for protection visas in 2008 and their application was refused. They applied to the Refugee Review Tribunal but the refusal was affirmed. They then applied to the Minister for humanitarian consideration but the Minister did not intervene.

18. Taking all of the above into account the Tribunal considers that the applicants first made a protection visa application [in] September 2008 and the first application was refused. They made a further application [in] August 2013 and that is the subject of this review.

19. Where a further application for a protection visa was made before 28 May 2014, s.48A applies as it was before amendment by the Migration Amendment Act 2014. Before this amendment, s.48A(2) provided that an ‘application for a protection visa’ included ‘an application for a visa, a criterion of which is mentioned in s.36(2)(a), (aa), (b) or (c)’, which respectively relate to being either a person in respect of whom Australia has protection obligations under the Refugees Convention, a person in respect of whom Australia has protection obligations under the ‘complementary protection’ criterion, or a member of the same family unit of either such person.

20. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.[2] That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) or the family membership criteria in s.36(2)(b) or (c) while he or she remained in the migration zone.

    [2] SZGIZ v MIAC (2013) 212 FCR 235 at [38].

21. The Federal Court in AMA15 v MIBD held that where an applicant has already been assessed against the refugee criterion, neither the delegate nor the Tribunal has any jurisdiction to consider a further application made on the basis of the complementary protection criterion against the refugee criterion.[3]

    [3] AMA15 v MIBD [2015]FCA 1424 at [48].

22. Applying the reasoning in SZGIZ v MIAC and AMA15 v MIBP the Tribunal finds it does not have the power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicants’ claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

23. This the issue for the Tribunal is whether the applicants meet the complementary protection criterion in s.36(2)(aa).

    Background

24. The applicants are husband and wife and they are [age] years and [age] years old respectively. They were born in Fiji and married in 1985. The applicant wife was a casual worker [in] Fiji and the applicant husband was working in a [factory] .

25. The couple have 2 children; [name] who is [age] years of age and their son [Mr A] who is [age] years of age. Both children are Australian citizens.

26. The couple lived in a rented property in Fiji before they travelled to Australia in 1988 but now own a house in Sydney.

27. The applicant husband had a history of [medical] problems resulting in a [medical condition] in 1987/1988. After his [medical condition] he did not return to work and took some money out of [a] Fund in February 1988 for the family’s support. The couple came to Australia on [temporary] visas in 1988.

    What is the applicants’ receiving country?

28. The applicants provided copies of their Fijian passports and the applicant wife has given oral evidence she was born in Fiji and lived there until 1988. On the basis of the oral evidence and documents the Tribunal considers that the applicants are citizens of Fiji and that Fiji is the receiving country for the purpose of s.36(2)(aa).

    What are the applicants’ claims?

    Claims made in the application for protection and accompanying documents lodged [in] August 2013

29. The applicants each submitted their own claims for protection (Form C). They stated they are of Indo Fijian ethnicity and have lived in Australia for nearly 30 years. They claim that they faced harm and harassment in Fiji prior to coming to Australia due to their minority ethnic background. They claimed that country information confirms that Indo Fijians continue to face harm at the hands of the native Fijians and the authorities.

30. In addition, because they stayed in Australia for a considerable period they fear the military government may perceive them as persons holding political opinion against the government Further, they respect democratic values and have political opinions opposed to the military government in Fiji. Due to that fear they will face significant harm in Fiji and may be targeted and detained and face torture, degrading, cruel and inhuman treatment in Fiji. They fear they cannot get state protection and even if they moved to other parts of Fiji and will continue to face harm.

31. The applicant wife claims that in addition she will face harm because she is a female of Indo Fijian ethnicity.

32. In their individual statements the applicants provided information about their life in Fiji and incidents which caused them to become concerned about their safety.

33. The applicant husband claimed that after the political coup which took place in May 1987 the native Fijians became violent towards Indians who lived in Fiji. They would set fire to houses, rob and throw stones at members of the Indian community or randomly come and bash them.

34. He remembers one morning when he was waiting for a bus, a group of young Fijians gathered round him and began to bash him whilst he was lying on the ground; this was not the first time it had happened. Life became very hard for Indians in Fiji after the coup and the native Fijians would even steal clothes from the clothesline. He was targeted because he was not well and could not protect his family.

35. In 1988 he decided he would come to Australia with his wife and daughter and obtained a [temporary] visa. This visa was granted for 3 months. He and his wife applied for permanent residence at the time.

36. The applicant’s family suffered in Fiji and he believes that Fiji is an unsafe place for a disabled man and his family. Both of his children are Australian citizens and even though they are Australian citizens they refuse to visit Fiji.

37. The applicant husband fears he will be particularly vulnerable for targeted killing and harm in Fiji if he returned because;

    ·He is an Indian Fijian.

    ·He belongs to Hindu minority group in Fiji.

    ·He did not return to Fiji after he arrived in Australia in 1988 and fears that the military government will perceive him as an anti-military political opponent.

    ·He has lived in Australia for almost 3 decades and fears if he returns that the native Fijians and criminal elements operating in Fiji may see him as a wealthy person and attempt to extort money from him.

38. He believes Australia is a better place for himself and his wife and the medication he is taking at present is impossible to find in Fiji. He would suffer and would be risking his life if he did not take these medications. He also fears he will be deprived of medical treatment if he returns because of a perception he is a person holding a political opinion against the government. He cannot relocate to other parts of Fiji due to health issues. He also believes it is better for the applicants to remain in Australia because they have children and grandchildren.

39. The applicant wife claimed that she and her husband married in March 1985 and 6 months after their marriage, the husband became unwell with [medical condition] and had a [medical condition]. She and her husband have 2 children and they are now Australian citizens.

40. After the May 1987 coup Fijians became violent towards Indians who lived in Fiji.

41. She was afraid that they would die at the time of the coup because no one was able to protect them against this violence. The police were helpless and the family became prisoners in their own homes. There are a number of times when she would feed her daughter and someone would break into her house and start throwing stones at her, pulled her hair and punched her.

42. After the coup her husband lost his job and they had no income to live on. They could not afford food or medicines.

43. Her family suffered in Fiji and she does not believe it is a safe place to return because they are Indo Fijians. They faced discrimination in targeted attacks in Fiji. As result of that they left Fiji and came to Australia.

44. Since she moved to Australia in 1988 with her daughter and husband she regards Australia as her home and has never wanted to return to Fiji. Her daughter has become an Australian citizen.

45. She fears returning to Fiji because;

    ·She is an Indo Fijian.

    ·She is a Hindu from Fiji.

    ·She has been in Australia since 1988 and fears she will be seen as a person holding an anti-government political opinion.

46. She believes Australia is a better place for her husband because her husband’s medication is impossible to find in Fiji and he would be taking a risk if he did not continue to take his medication. She fears her husband will not get adequate medical treatment in Fiji due to his ethnic and religious background and perceived political opinion.

47. She also believes Australia is a better option because they have children and grandchildren here and they been helping. Her daughter has been buying her husband’s medication and groceries for the couple.

48. At the departmental interview the applicant’s gave further details about their circumstances in Fiji and made claims relating to harm they experienced after the coup in 1987 and fears of harm for the reasons set out in the application.

    Claims made at the Tribunal hearing held on 14 December 2015

49. The applicant wife gave evidence that she is [age] years of age and was born in [Fiji]. She has siblings in Australia and a [sibling] in Fiji. Her husband’s parents are deceased and he has one [sibling] in [another country].

50. After her husband had a [medical condition] in 1988 he did not return to work but took money out of [a] Fund and came to Australia on a temporary visa. She stated they applied for a humanitarian visa but found out later they had applied for the wrong visa. Their application was refused after about 6 months and they appealed by themselves and their appeal was rejected. She blamed the agent and her [sibling] for the poor advice.

51. In 2008 the couple applied for protection visas, their applications were refused by the Department and they sought review by the Refugee Review Tribunal. They attended a hearing but the refusal was later affirmed by the Tribunal. The Tribunal did not accept their claims that they were refugees. They later sought ministerial intervention which was not successful. In 2013 they re-applied for protection visas on the grounds of complementary protection.

52. The Tribunal asked the applicant wife why she feared returning to Fiji and she stated that she is scared to return. Firstly, her husband [has physical impairments]. She cannot return as a single woman as the applicants are very attached to each other.

53. If she returned to Fiji and they were attacked they would both suffer as her husband is very sick and she takes care of him. The Tribunal asked her why they would be attacked as they have not lived in Fiji for the last 28 years and she stated that people they know have visited and say that it is not safe.

54. The Tribunal put it to her that things have changed considerably in Fiji since she left. The current government has brought in strong anti-discriminatory measures and is regarded as pro-Indo- Fijian. She stated that she can only say what she has heard from other people. She also has no family who can advise her or guide her as to what is happening in Fiji.

55. She claimed she fears the indigenous Fijians because she was attacked when she lived in Fiji in 1987. She recalled that when her daughter was about [age] and she was feeding [her] she heard a group of young indigenous men throwing stones at her house and when she went outside they continued to throw stones. She was lucky to escape. The stones broke one of the windows and she was very scared. She went out and got some milk and locked herself inside the house for 2 days and with no food or water but was so scared that she did not go outside the house.

56. On another occasion she had done the washing and put the washing on the clothesline and about 6 or 7 young men took the clothes from this clothesline. She also had her shopping bag snatched on the way from the shops. She called the police, but they did not arrive for about an hour and a half and the boys were gone and the police could not do anything. She could not identify the boys that snatched her bag and the police talked to her about what happened but nothing happened.

57. She stated that at the time they left there was turmoil in Fiji due to the 1987 coup and related political problems. Further, her husband was not working due to his illness.

58. She does not want to return to Fiji because she is scared. She has a [age]-year-old daughter and a [age]-year-old son living in Australia and they have never been back to Fiji. She and her husband live with her children and want to have a happy life in Australia. Her husband suffers every day due to his illness, but he has a lot of family support from her and the children. She is no longer able to work due to withdrawal of her permission to work and her children provide the couple with financial support.

59. She used to work but has had her permission to work withdrawn. She and her husband bought a house in Sydney and there is an outstanding mortgage on that property. Her children and her friends currently help them pay for the mortgage.

60. The Tribunal discussed the country information set out in the latest Department of Foreign Affairs (DFAT) Country Report published on 14 April 2015. The Tribunal put it to her that elections were held in 2014 and the Fiji First party of Frank Bainimarama won the last elections. They were strong supporters of the Indo Fijian community and had taken strong anti-antidiscrimination measures to support the Indo Fijian community. There are a number of powerful Indo Fijian members of Parliament, the security situation is stable, the elections were nonviolent, crime rates are moderate and police protection is non-discriminatory and partially effective.

61. The applicant wife stated that her husband has [medical conditions] and took a number of medications including [medications]. The Tribunal put it to her that country information indicated there was a Free Medicine Program for persons whose income was lower than $20,000 per annum and the government was taking steps to improve the health care system by providing better initial care for citizens.

1. The applicant wife stated that if they returned they would have nowhere to live. The Tribunal put it to them they could sell their house in Australia and she asked where her children would live if they sold their [home]. She stated her son only made $[amount] a week and he could not buy his own house. Her daughter was a single mother with a small child.

2. If the applicants became ill the children could not travel to Fiji to assist them. Further, the applicant would not be able to find jobs in Fiji. She pointed to the age and health of her husband, the residence of her children and the fact they had no relatives in Fiji. The Tribunal put it to her that the things she was raising were humanitarian considerations.

3. The Tribunal telephoned the applicant husband and asked him if he would like an opportunity to give evidence in support of the review. He stated his wife would give evidence on his behalf. His only comment was he should be allowed to stay in Australia and he could not go back to Fiji because he was sick. The Tribunal explained to him if he did not take up the invitation to give evidence it could only make decisions on the evidence before it. He stated he did not wish to give evidence by telephone or come into the Tribunal at a later time.

4. The applicant’s son gave evidence that the family would be severely affected if they were forced to separate from the parents. The applicant’s daughter gave evidence that she is [age] years old and is a single mother with a young child and has no financial support from the father of child. Her mother provides her with emotional and physical support in caring for her [child] and she helps with her father.

5. In her final remarks the applicant wife stated that the couple had lived in Australia for a long time and had suffered a lot and they would like to stay with their children.

   Do the applicants meet the complementary protection criterion?

6. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji there is a real risk that they will suffer significant harm: s.36(2)(aa).

7. Turning to the claims made, the applicant husband and applicant wife both claimed that they feared they would suffer significant harm for a number of reasons.

   Indo Fijian ethnicity and Hindu religion.

8. The Tribunal accepts the evidence given by the applicants that they are of Indo Fijian ethnicity and of the Hindu religion. Their claims of fear are based on events which occurred in Fiji in 1987 and the applicant wife stated people had told her it was not safe in Fiji. They claim that they currently fear harm from members of the indigenous Fijian community and their representative submitted there is country information indicating that members of the Indo Fijian community continue to face harm in Fiji. The applicants also claim they fear they will suffer harm for reasons of their Hindu religion.

9. However, as put to the applicants at hearing the situation in Fiji has changed significantly since 1987. The latest DFAT report notes

   2.13 At the most recent census, in 2007, approximately 57 per cent of the population was indigenous Fijian. Approximately 37.5 per cent of the population was of Indian descent. The balance was made up of Rotumans (a distinct ethnic group from the Fijian protectorate of Rotuma), Chinese, Europeans and other Pacific Islanders.

   ….2.48 Fiji is generally stable and secure. The 2006 coup was non-violent and did not affect the country’s overall security. Elections in 2014 were calm and free of violence. Security services, including police and military, are well-resourced and maintain effective control of the country (see more below at ‘State Protection’)

   ….3.2 Since 2009, the government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. It has reformed or removed racially-based aspects of the political system (including by abolishing separate ethnic-based voter rolls and the Great Council of Chiefs). The 2014 election suggested that a strong majority of Indo-Fijians and a significant plurality of indigenous Fijians support this agenda. Without discounting the importance of race in communal and political relations, Fiji is an increasingly multi-racial and racially integrated country. For example, Fijian youth increasingly support a multi-racial Fiji and racial slurs are now generally considered a social taboo.

   Indo-Fijians

   3.5 Indo-Fijians in Fiji today are the descendants of indentured labourers and free migrants. The main centres of non-indentured immigration were Gujarat and Punjab, while indentured labourers were from a range of provinces in north and south India. As a result, Indo-Fijians are an ethnically heterogeneous group. In broad terms, Indo-Fijians can be categorised as north or south Indians, though this distinction is imperfect.

   3.9 Indo-Fijians and indigenous Fijians are represented to some extent in all sectors of the economy. Indo-Fijians pre-dominate in the transport sector, retail trade, building, manufacturing and sugar farming. They are relatively under-represented in non-sugar farming, fishing and fish-processing, and the public sector

   3.10 The 2013 Constitution provides for freedom from discrimination on the basis of race / ethnicity. However, land rights of indigenous Fijians and Rotumans are protected under the Constitution. This provision underwrites the system of land ownership which generally discriminates against Indo-Fijians and other non-indigenous Fijians (see ‘Land rights’, above).

   3.11 In practice, Indo-Fijians are able to access employment, education, healthcare and other government services on the same basis as other Fijians. The number of Indo-Fijians in Parliament, in Cabinet and in FijiFirst, the governing party, is broadly proportionate to the broader population. The main opposition party, SODELPA (the Social Democratic Labour Party) is nationalist-leaning and has very few Indo-Fijian members.

   ….3.16 Instances of official discrimination are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.

   3.17 Overall, DFAT assesses that Indo-Fijians face a low level of official discrimination on the basis of their race/nationality.

   Societal treatment

   3.18 In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists…..In late 2014, a range of contacts described communal relations as “neighbourly”, “peaceful” and “friendly”.

   ….3.21 State protection for Indo-Fijians is generally assessed to be only partially effective. However, this is because of poor police capacity and there is not a significant disparity between the quality of state protection provided to Indo-Fijians and to indigenous Fijians. Indo-Fijian groups assessed the police to be under-resourced and unresponsive, while the military (despite its overwhelmingly indigenous Fijian make-up) was assessed to be effective and responsive. See more details below at ‘State Protection’.

   3.22 Overall, DFAT assesses that Indo-Fijians face a low level of societal discrimination on the basis of their race/nationality.

10. With respect to religion DFAT notes that government authorities respect and protect the Hindu community’s freedom of religion, belief and worship. There are some credible allegations of discrimination in military recruitment practice and there has been some promotion of Christian practice in the police; however, in 2014 the police reverted to non-denominational values. Although there have been some instances where temples have been vandalised in 2010 this trend has diminished with only one case of vandalism reported in 2013.

11. The Tribunal accepts that the situation following the 1987 coup was unstable and that there were significant tensions between the Indo Fijian and indigenous community at that time. Members of the Indo Fijian community were harassed and some members suffered physical harm as a result of those tensions. The applicant wife and husband have described some incidents where they were victims of violence and harassment and the Tribunal accepts that they were fearful for their safety at that time.

12. However as set out in the country information above the situation has changed considerably since that time. Fiji is generally stable and there is little communal tension or conflict. The current Fijian government has taken steps to ensure that the Indo Fijian community do not suffer discrimination or harm.

13. The applicants have not provided any current credible country information to support their claims that they would suffer significant harm for reasons of their Indo Fijian ethnicity or religious beliefs if they returned to Fiji. Whilst the information suggests that there might be some discrimination against Hindus in military recruitment, some instances of damage to temples peaking in 2010 and some evidence of social discord in the years following the 1987 coup the Tribunal does not accept that the applicants will face significant harm if they return to Fiji. There is no information supporting the applicants’ claims that they will be arbitrarily deprived of their life; or subjected to cruel or inhuman treatment or punishment; or to degrading treatment or punishment in Fiji because of their ethnicity or religion and the Tribunal does not accept these claims.

    Indo Fijian Returnees

14. The applicants claimed if they returned to Fiji from Australia after such a long absence they would be perceived to be relatively wealthy and subject to criminal activity and extortion.

15. The country information in the latest DFAT report indicates that Fiji is generally stable and secure and that the police and military maintain effective control of the country. Crime rates are moderate at the moment and the Fiji Police Force is generally seen to be impartial with an ethnic make-up broadly representative of the country’s ethnic makeup. The police force has some ability to protect individuals from social harassment, discrimination or violence and is relatively accessible but can sometimes by unresponsive. Further the military has played a role in law enforcement particularly in rural areas and is perceived to be more responsive than police in some situations. In particular the report notes

    3.20 As of 2014, the treatment of Indo-Fijians by indigenous Fijian communities varies. A range of Indo-Fijians said that treatment had improved in recent years and that there had been a reduction in (reported) crime, including a reduction in theft, robbery, assault, burglary and desecration of temples. A range of contacts said that robberies of Indo-Fijian taxi drivers were frequent, but that these were not necessarily racially based: the majority of taxi drivers in Fiji are Indo-Fijian, and taxi-drivers are a vulnerable, accessible target. More broadly, most contacts assessed robberies to be motivated by income disparity, rather than race or ethnicity per se. Indo-Fijians are sometimes perceived to be wealthier than indigenous Fijians and are therefore more likely to be targeted for economic reasons.

16. The applicants have not provided any reliable evidence that they will face extortion or criminal acts if they return. The country information indicates that crime rates are moderate and the police together with the military provide a reasonable level of protection against criminal activity. The Tribunal does not consider that the applicants will suffer significant harm involving criminal acts or extortion because they will be perceived to be wealthy returnees.

    Actual and imputed political opinion.

17. The applicants in their written claims stated that they do not support a military government and that they support the introduction of democratically elected government. The applicants have not made any written claims they belong to any political party nor are they political activists. The applicant wife did not make any claims of political activism at the Tribunal hearing.

18. The current country information set out in the latest DFAT report indicates that Fiji had democratic elections in 2014 in which a number of political parties participated. The US Department of State Country Report on Human Rights in Fiji noted in the report for 2015;

    Following eight years of military rule, Fiji held general elections in September 2014. 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 seats, and he was sworn in as prime minister. Civilian authorities regained effective control over the security forces after the general elections.

19. The latest DFAT report also noted

    3.73 In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example, to discuss the outcomes of the 2014 election. At times such gatherings include robust political criticism of FijiFirst and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.

20. There is no information before the Tribunal suggesting that supporters of political parties face a risk of harm for reasons of their political affiliations or views.

21. The applicants also claim if they return to Fiji they will be perceived to be opposed to the military government due to their long absence from Fiji and that the applicant husband will not be able to access appropriate medical care because of the perception they hold anti-government views.

22. The applicants did not explain why the current government authorities would consider they held anti-government views because they had been absent from Fiji for 28 years. There is no country information or credible evidence before the Tribunal which would support such a claim. The Tribunal does not consider that such an absence would logically lead to a conclusion that the applicants would be imputed with anti-government opinions.

23. In any event, the military government has now been replaced by a democratically elected government. Even though the ruling party, Fiji First, is led by Frank Bainimarama, the country information indicates that the 2014 elections were credible and broadly reflected the will of the Fijian people. The applicant‘s claims appear to be based on speculation, there is no apparent basis for such claims and the Tribunal rejects them.

    Women

24. The applicant wife claimed that she would face additional harm as a woman of Indo Fijian ethnicity.

25. The country information in the latest DFAT report and the US Department of State report indicates that that domestic violence, rape, incest and indecent assault are significant problems for the whole female population. However, the government is aware of this social problem and has taken steps to protect women with effective legislation and the police have a “no drop policy” in cases of rape, sexual assault and domestic violence. There are a number of very active NGO’s which have raised awareness of the issues and a number of crisis centres and refuges which offer assistance and counselling to women in cases of domestic violence, rape and other issues.

26. The applicant wife did not make any specific claims relating to fears of domestic violence and the Tribunal notes that the applicant husband has suffered significant disability due to a [medical condition]. If she returned there is no suggestion that she would be at particular risk of sexual violence and the Tribunal considers this is a speculative claim.

27. The information indicates that there is no official discrimination against women or Indo Fijian women and whilst there is a level of social discrimination against women the Tribunal does not consider this level of social discrimination amounts to significant harm in the relevant sense.

    Medical Care

28. The evidence before the Tribunal indicates that the applicant husband has a number of medical conditions which have resulted in significant disabilities. He claims he will not be able to access adequate medical treatment and the provision of medication if he returns to Fiji. The evidence indicates he has [medical conditions].

29. The country information in the latest DFAT report indicates;

    2.45 Fiji’s life expectancy at birth is comparatively high at just over 72 years, reflecting higher than average regional health outcomes. The government provides generous public health services, including free primary and secondary health care. However, x-ray and other support services are not generally subsidised.

    2.46 There are four main hospitals in Fiji, three of them State-funded institutions, while the fourth (Suva Private) is a commercial facility. Two of the hospitals are in Suva, and one each in Labasa and Lautoka.

    2.47 Fiji has an estimated 2.1 hospital beds per 1,000 population and spent approximately 3.8 per cent of its GDP on health in 2011. These figures are comparable to regional averages. Due to the complexity of inter-island transportation, access to health care services from rural areas can be a challenge. Some contacts reported more difficulty for lesbian, gay, transgender, bisexual, transgender and intersex (LGBTI) people in accessing health services.

30. In 2015 the Fijian Ministry of Health announced a Free Medicine Scheme for eligible individuals earning less than $20,000 per annum.[4]

    [4] “Free Medicine Scheme” 2015 Fiji Times online 4 January

31. The Tribunal accepts that the applicant husband has significant medical needs which are currently being met in Australia through the public health system and the support of the applicants’ family members. There is evidence that he suffers some disability due to his condition and that it would be difficult for him to relocate to Fiji given the length of time he has lived in Australia, the support of family members in Australia and the difficulties in re-establishing himself in Fiji if he returned. However, the evidence indicates that Fiji has a functioning health system and that medications are available through pharmacies and hospitals. The Tribunal does not accept that the applicant husband would suffer significant harm in the relevant sense because of his medical condition if he returned to Fiji.

    Overall Assessment

32. For reasons set out above the Tribunal is not satisfied that either of the applicants have 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 they will suffer significant harm.

33. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

34. The Tribunal affirms the decision not to grant the applicants Protection visas.

    REQUEST FOR MINISTERIAL INTERVENTION

35. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so

1. The applicant’s representative made submissions on 7 January 2016 regarding a request to refer the case to the Minister.

2. In summary the submissions refer to the applicants current circumstances and the applicability of the current policy in relation to referrals. The submissions note

   ·The applicants only have 2 children and one grandchild all of whom are Australian citizens and the applicant husband has had a [medical condition] and does not wish to be separated from his children and grandchild. The family have lived as a family unit for the last 28 years and have strong family ties.

   ·The applicant wife is [age] years and has worked in [industry] and as a volunteer. The [industry] has a shortage of trained staff and a shortfall of workers in the next 10 years. She has skills which are in demand in the Australian economy.

   ·The applicants have lived in Australia for the last 28 years and are integrated into the Australian community. They have purchased a property in Sydney in which the family members live.

   ·The applicant husband is incapacitated as a result of a [medical condition] and is cared for by his wife and children.

3. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ and will refer the matter to the Department.

   Louise Nicholls
   Senior Member  3 June 2016

   
   

   ATTACHMENT A

   RELEVANT LAW

100. 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 of the same class.

Refugee criterion

101.   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).

102.   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.

103.   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.

104.   There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

105.   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.

106.   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.

107.   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.

108.   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.

109.   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.

110.   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

111.   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’).

112.   ‘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.

113.   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

114.   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.

Member of the same family unit

115.   Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include .