1414897 (Refugee)

[2015] AATA 3254

1414897 (Refugee) [2015] AATA 3254 (31 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414897

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Antoinette Younes

DATE:31 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 31 July 2015 at 4:58pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants appeared before the Tribunal on 24 July 2015 to give evidence and present arguments.

   BACKGROUND

3. The applicants are citizens of Fiji. The first-named applicant (applicant) arrived in Australia [in] February 1998 holding a tourist visa which was valid until [May] 1998. [In] May 1998, he lodged an application for a medical treatment visa which was granted [in] July 1998 and valid until [December] 1998. The applicant was granted further medical treatment visas which were valid until [February] 1999 and [May] 1999. He was later granted a tourist visa valid until [February] 2000. [In] December 1999, he was located working in breach of his visa conditions and the tourist visa was therefore cancelled which led to him being detained.

4. The applicant lodged an application for a protection visa [in] December 1999 and the delegate refused to grant the visa [in] December 1999. On 24 January 2001, the RRT affirmed the decision to refuse to grant the applicant a protection visa and his Bridging visa ceased [in] February 2001. The applicant remained in Australia without a valid visa until [March] 2001 when he was granted a Bridging visa in relation to his judicial review application which he withdrew [in] June 2003. He remained in Australia without valid visas for periods of time and on various occasions, he held number of Bridging visas in order to enable him to depart Australia. The applicant attempted to lodge a religious worker visa which was determined to be invalid [in] July 2009. He sought Ministerial intervention and [in] July 2010, the applicant was advised that the Minister had decided that it was not in the public interest to intervene in his case.

5. Between August 2010 and October 2010, the applicant again held several bridging visas on the basis of him making arrangements to depart Australia, however he remained in Australia without a valid visa from October 2010 until January 2013.  [In] January 2013, the applicant was located and detained. He applied but was refused a Bridging visa and the MRT affirmed the decision. He unsuccessfully sought Ministerial intervention.  [In] October 2013, he lodged another application for a protection visa. This second application included his wife, the second-named applicant who in 2001 sought protection but was unsuccessful.  The second application for a protection visa was deemed valid as a result of the Federal Court judgment of SZGIZ v Minister for Immigration and Citizenship[1] .  The delegate refused to grant the visa [in] July 2014.

   [1] (2013) 212 FCR 235

   THE LAW

6. 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.

7. 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). 

8. 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’).

9. 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.

   SZGIZ v MIAC

10. 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.[3] Therefore, the Tribunal will determine the application on the basis of s.36(2)(aa) criterion. 

    CLAIMS AND EVIDENCE

    [2] Ibid at [38].

    [3] Ibid at [43]-[47].

    The first application for a protection visa lodged [in] December 1999

11. In support of the application for a protection visa, the applicant provided a hand-written statement claiming that:

    a.In May 1987, there were two coups. He was a [teacher] at [a] [workplace]. He and his wife were strong supporters of the Federation and Labour Coalition Party (FLCP), particularly his wife. His wife is [a relative] of [Mr A] who is a [member of] the Party.

    b.The Fijian oppositions made life miserable for Party members. There was physical abuse mostly directed at Indian Fijians. On many occasions, he protested and he was interrogated. He stood by the Party and its members.

    c.Prior to the coup, he, his wife and sons also supported Every Home International. By the end of 1989, the Ministry of Education submitted to their demands and they threw his family out of school. When he complained to the senior education officer, he was told that he deserved what was happening to him because of his political affiliations. For 12 weeks, they unsuccessfully tried to find a [workplace] for him to [work at] but this was unsuccessful because of his political affiliations.

    d.Fourteen weeks later, he was given a position with terms and conditions with which he had to agree. He however decided to retire because he was [age] years of age and in Fiji, one can retire at[age].

    e.[One] son obtained his [qualification] at the end of 1987 and he started [working] in Suva. He was dismissed at the beginning of 1990 because he was coming late to [workplace]. He appealed against his dismissal and he was re-employed in mid-1990. In 1993, the son was dismissed from his [position] and again appealed and was reinstated.  His son fully-understood what was happening.  He was a vocal supporter of [Mr A]. Throughout all those years, his son had to put up with all forms of abuse, hardship, victimisation, condemnation and unnecessary transfers until he resigned from his [position] and joined[a company].

    f.[Another] son completed high school at the highest level and joined the government as a [occupation] at the end of 1988. He progressed well but in mid-1991, he was dismissed. They tried to find out what happened but could not because of their party affiliation and faith in Christ. Hi son joined a church workers’ group in Suva and managed to progress.

    g.After the applicant’s retirement in 1992, they moved to Suva where they were abused, molested, victimised and discriminated against. He and his wife decided to come to Australia and find means of acquiring permanent residence. Three weeks after his arrival, he had a car accident and he was admitted to hospital.  He has worked for the church in Australia and he is now an elder. There is no future for him in Fiji and he does not wish to return.

12. In submissions to the RRT dated 20 January 2000, the applicant stated that it was difficult to get jobs in Fiji. His wife had suffered because she is [a relative] of[Mr A]. His wife was vocal in her support of her [relative] throughout 1987 to 1997. She suffered greatly from abuse and embarrassment. He faced hardship in looking for work. During the last election, his [son] was vocal in his criticisms of the Rabuka’s party.

13. It was further submitted that in 1992, he and a group of other retired [workers] revived the Fijian Labour Party and tried to inform the government that Fijians were still nowhere because they had forgotten why they were elected to Parliament. The Prime Minister and his government did not like this conduct. In mid-1997, the applicant considered standing for the 1999 Parliamentary elections but his son convinced him not to do so because his son had heard that he had been somewhat marked and should be very careful. There is an uprising and he does not want to return to Fiji. The perpetrators would surely be looking for people like him “who had been vocal and had done a lot, reformers will support for the parties in power at present”.

14. In essence, the Tribunal found that there is not a real chance of persecution occurring to the applicant in case of his return to Fiji.

    Second application for a protection visa

15. In the application for a protection visa lodged [in] October 2013, the applicant claimed that:

    a.He came to Australia in 1998 because he needed some rest after looking after his family. The coups in Fiji have been disastrous and had an adverse impact on the whole nation. The Fijian population is suffering as a result of poor leadership of the military government. He worked for a while as  [occupation] but the family suffered terribly without work.

    b.The military government is cruel and there is lack of jobs and they would not be able to survive. Their [children] have been looking for work without success. If they were to return to Fiji, they would be subjected to torture, cruelty, inhumane treatment, or be subjected to degrading treatment and punishment because of his membership of the Fijian Democratic Movement (FDM) in Australia.  The Bainimarama regime is against the movement.

    c.They would not be able to receive protection from the Fijian authorities. If they were to return to Fiji, they would be harmed and mistreated because of their membership of the FDM. Members of the FDM who have applied for protection visas would be treated as enemies by the regime and would be tortured, degraded and punished like what had happened to those who returned to Fiji.

    d.He is [age] years of age and his wife is[age]. If they were to return, they would face neglect, homelessness, starvation, poverty, unemployment, high cost of living. Their physical and mental health is deteriorating and they will suffer miserably.

16. The applicant provided identity documents, tenancy records a letter of support from [a church] referring to the applicant’s commitment to the Christian faith, a letter from [a pastor] referring to the applicants’ commitment to the church, copies of submissions to support Ministerial interventions dated 10 June 2013, 3 April 2013 and 4 July 2014, letter of support from [a pastor] dated 30 July 2014 referring to the applicant’s commitment to the church, letter of support from [name deleted] dated 23 July 2014, a letter from the Fiji Democracy and Freedom Movement dated [February] 2013 referring to the second applicant’s involvement in the movement, including a photograph.

17. The applicant was interviewed by the Department in relation to his claims [in] July 2014. During the interview, the applicant reiterated his desire to remain in Australia and referred to his length of stay. He also claimed that his house and land in the village have been taken by another clan who occupied his house. He stated that there would be problems if he tried to get his land back and that his worst fear is that he cannot claim his land back without trouble.

18. In an undated letter to the Tribunal received on 21 July 2015, the applicant stated;

    a.As members of the FDM against the Bainimarama military coup and the government, last year they experienced fears and anxieties. They are known members of the FDM and if they were to return to Fiji, they would be tortured. They have also heard of opposition movements in the largely populated provinces of Suva, Navosa and others. As known supporters of the Fiji Australian Democratic Movement, they would not want to choose to be in Fiji.

    b.Their [children] [a few] of whom are in Fiji and [a few others] in [another country] have informed them about the high cost of living in Fiji and[that other country]. Their [children] could not support them and told them that it would be better for them to remain in Australia where there are a lot of jobs. The fact that he is a former [occupation] means that he would be able to do [a certain line of] work and his wife could do a lot if they were allowed to work in Australia.

    c.He is [age] years of age and his wife is[age]. He has been in Australia for seventeen years and his wife for 15. His wife is [a relative] of[Mr A], a former [official]. It would be torturous for them to return to Fiji and their [children] could not support them.

    d.When the Australian authorities went to detain him in January 2013, they were not concerned about their belongings in the house and they were told that they could return the following day which never occurred.

    e.He was one of the founders of [a church] in 1998. He was involved in church activities such as visiting houses, preaching in the streets, giving CDs and DVDs about God’s words. They now have a total of [number] churches in Australia. They have been involved in those activities in Australia.

    f.Since November 2013, they have also been involved in [a] centre where they have been actively involved in church services and participating on weekdays on Sundays and volunteering in the church as food distribution to those in need.

19. The applicant provided:

    a.Three documents from his [children] essentially indicating that they are financially not able to support their parents.

    b.Copy of a form completed by the applicant stating that he does not have contact with[a few of his other children].

    c.Letter of support from Pastors dated 7 May 2015 referring to their assistance to the applicants in terms of accommodation and food which has caused difficulties.

    d.Copy of an Australian Red Cross ongoing medical approval form under the Migration Support Program.

    e.A letter to the applicant from [a] health district referring to the applicant’s missed appointments.

    Country of nationality

20. On the basis of the available information, the Tribunal finds that the applicants are nationals of Fiji. The applicants made no claim to be nationals of any other country. The Tribunal finds that their claims should be assessed against Fiji as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).

    DISCUSSIONS & FINDINGS

    Political and religious activities in Fiji

21. In the course of the hearing, the Tribunal discussed with the applicant the claims of being supporters of the FLCP.  The applicant stated that [Mr A] was [an official] and that they supported him and feared harm and violence. He said they discovered that the policies of the FLCP were better than those of the Fijian Alliance. The Tribunal asked the applicant about the specific activities in which he was involved in relation to both the Fijian Alliance as well as the FLCP. The applicant stated that in the Fijian Alliance, there were groups and they stood together and provided financial support including donations.  The Tribunal asked the applicant about any other activities in which he was involved in relation to either and the applicant stated “not really”.  The Tribunal asked the applicant if he or anyone in the family had suffered any harm as a result of those activities and the applicant stated that at the time of their involvement, things were good and no one suffered any harm.

22. The Tribunal asked the applicant if anything had happened after he retired in 1992. The applicant stated that they used to belong to a religious group and they were abused. The Tribunal asked him how they were abused and he stated that they were called names and he was beaten in December 1990 because they didn’t want them to “bring the Word of God”. Subsequently the applicant stated that he was not beaten but others were. The Tribunal asked the applicant about his claims that he was one of the founders of [a church] and he confirmed that he was one of the founding members.

23. In relation to claimed harm, the Tribunal asked the applicant about the claims made in the first application for a protection visa namely that after he retired in 1992, they were abused, molested, victimised and discriminated against. The applicant stated that it was all true and this happened for religious reasons. The Tribunal asked him exactly what happened and the applicant stated that they were called names. The Tribunal asked him how they were molested and the applicant stated that “they came on the road” and they had to run away. The Tribunal asked him who they were and the applicant stated that it was the neighbours and other people. He said they had to run to stop one of them from punching[a relative].  The Tribunal asked the applicant if there were any other incidents and the applicant stated that he could not recall. The Tribunal recognises that the harm is claimed to have occurred over 17 years ago and that the applicant’s memory may not be clear. However, the Tribunal is satisfied that being called names or people coming on the road do not amount to significant harm. On the basis of the available information, the Tribunal does not accept that the applicant was abused, or molested by anyone, or victimised, or discriminated against, or that he had suffered any harm in Fiji amounting to significant harm.

24. In relation to the applicant’s past employment, whilst the Tribunal accepts as plausible that the applicant had the claimed difficulties, the Tribunal is satisfied the applicant has not suffered any significant harm and that there is not a real risk of such harm occurring to the applicant on this basis. The applicant is now [age] years of age and has retired. As to the son’s employment difficulties, even if accepted as plausible, on the basis of the available information, the Tribunal finds that there is not a real risk of the applicants suffering significant harm on this basis. 

25. In relation to the connections with[Mr A], the Tribunal accepts as plausible that the second applicant [is a relative] of[Mr A]. The second applicant gave evidence that [Mr A] has left politics and currently is living in Fiji. On the basis of the available information and given the earlier findings relating to the claimed harm, the Tribunal is satisfied that there is not a real risk of the applicants suffering significant harm on the basis of having family and or political connections with[Mr A].

1. On the basis of the available information, and in consideration of the evidence as a whole, the Tribunal accepts as plausible that the applicant supported the FLCP and the Fijian Alliance and that his activities, consistent with his own evidence, were limited to financial support, standing together and donations. For the same reasons, the Tribunal also accepts as plausible that the applicant was involved in religious activities as claimed and that he was one of the founders of[a church]. The Tribunal is satisfied that those activities occurred many years ago and did not give the applicant a political and/or religious profile of any adverse interest to the Fijian authorities at the time. In consideration of the evidence as a whole, the Tribunal is satisfied that there is not a real risk of significant harm occurring to the applicant on the basis of his political/religious activities or opinions, actual or imputed.

   Political and religious activities in Australia

2. The Tribunal discussed with the applicant the claims in relation to FDM and asked him about specific activities. He stated that his activities include supporting and marching. He said the government in Fiji may be aware that he disagrees with the regime. The Tribunal asked the applicant about any other activities of the FDM and he stated that he is involved in meetings, donations, and showing disapproval by being involved in marches in Sydney.

3. The Tribunal asked the applicant why he did not wish to return to Fiji. The applicant stated that Fiji is still under the military government and a lot Fijians are disgruntled. He said the army is still behind the current government. He said although there are reports that the situation in Fiji has improved but in his view, things are not really better currently. He said the authorities know that he is a supporter of the FDM.  The Tribunal discussed with the applicant a report by the Australian Department of Foreign Affairs and Trade (DFAT)[4] and indicated to the applicant that there appear to be positive changes in the circumstances of Fiji since he has arrived in Australia; the Tribunal indicated that the report notes that Fiji is generally stable and secure, that the 2014 elections were calm and free of violence, that the security services, including police and military, are well resourced and maintain effective control of the country.[5]

   [4] Australian Department of Foreign Affairs and Trade, DFAT Country Report, Fiji, 14 April 2015.

   [5] Ibid at page 9

4. The Tribunal further explained to the applicant that its task was to decide whether there is a real risk of significant harm occurring in case of their return to Fiji. The applicant stated that as far as he knows, many Fijians are not happy with the current situation in Fiji. He stated that he has heard of regrouping. He gave an example of the government wishing to change the flag which caused debate and controversy. He said Fijians are not happy with the government and that there remains a lot of suffering and disgruntlement with the government. He said there is high unemployment in relation to certain parts of the Fijian society and that his son has not been able to find work.

5. The Tribunal discussed with the applicant the documents that have been provided and indicated that the Tribunal would further consider the weight that it would place on those documents. The applicant advised the Tribunal that the documents from the Australian Red Cross and [a] local health district were accidentally provided to the Tribunal. The Tribunal asked the applicant about his health and he stated that he has [difficulties] and he requires an operation but there is a waiting time.

6. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal accepts as plausible that the applicant has been involved in activities relating to the FDM, namely support, marching, meetings, donations, and marching. In relation to the applicant’s claims that the government in Fiji may be aware that he disagrees with the regime, the Tribunal is of the view that this is highly unlikely but in any event based on the available country information, the Tribunal is satisfied that those activities do not give the applicant an adverse political profile that would mean that he faces a real risk of significant harm in case of his return to Fiji. DFAT’s 2015 report indicates that Fiji’s constitution guarantees freedom of speech, expression and publication, assembly and association but those rights can be limited by the laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.  The report stated that although there is some uncertainty about the permissible limits on Public commentary, “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 are 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…..”[6]

   [6] Ibid, at page 17

7. In relation to religion, DFAT noted that Fiji is religiously diverse and that the 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion. The Constitution is non-discriminatory on the grounds of religion and provides specifically for protection from religious discrimination and that religious freedom is observed in practice.[7]

   Is there a real risk of the applicants suffering significant harm if returned to Fiji?

   [7] Ibid, at page 13

8. The second applicant gave evidence that she has been accustomed to living in Australia and that she loves Australia. She stated that she is of good health whereas in Fiji she used to get a lot of headaches. She stated that she has made contributions to the Australian Society, namely helping in the community, the church, and distributing food. She stated that her family in Fiji would not have enough money to support her and her husband and she would not live long.

9. The applicants have claimed that their ages, being [age] and [age] would present further difficulties in being able to return and settle in Fiji. They also claimed and provided evidence that their [children] do not have the financial means to support them in Fiji. They also claimed that their house has been taken by another clan. The Tribunal has doubts about this claim, but in any event the system of land ownership in Fiji is protected in the 2013 Constitution and in suite of legislation[8].  The Tribunal recognises that the applicants’ age group, housing issues and any trouble the applicant may encounter in claiming his land back, may present challenges in settling back in Fiji and that their [children] may not have the financial means to support the applicants.  The Tribunal further recognises that the applicant has difficulties with his [health] and other health problems. However, in consideration of the evidence as a whole, considering the applicants’ claims independently and cumulatively, and on balance, the Tribunal finds that any difficulties the applicants may encounter would not amount to significant harm as contemplated by the Act.  On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied that there is not a real risk of the applicants suffering significant harm in case of their return. For the same reasons, the Tribunal is satisfied that there is nothing in their profile or personal circumstances that would mean that there is a real risk of any such harm.

   [8] Ibid, at page 8

10. In essence and for the stated reasons, the Tribunal finds that that there is not a real risk of significant harm occurring to the applicant if he were to return to Fiji on any basis. 

11. For those reasons, the Tribunal finds that the applicants’ claims do not give rise to 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 they would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act. Therefore they do not satisfy the requirements of s.36(2)(aa).

    CONCLUSIONS

12. For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa) for a protection visa.  As they do not satisfy the criteria for a protection visa, they cannot be granted the visas. 

13. There is no suggestion that the applicants satisfy s.36(2) on the basis of being members of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).

    DECISION

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

    Antoinette Younes
    Senior Member