1415613 (Refugee)

[2015] AATA 3144

1415613 (Refugee) [2015] AATA 3144 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415613

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Rachel Homan

DATE:8 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 08 July 2015 at 9:01am

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of Fiji, applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] September 2014. The applicant applied for review of the delegate’s decision on 17 September 2014.

3. On 4 June 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 6 July 2015. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response to the Tribunal’s invitation was received and the applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The applicant has not contacted the Tribunal to explain her absence nor has the Tribunal been able to contact the applicant by any other means, as no telephone, email or fax number was provided in the application for review form. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

4. The issues in this review are whether the applicant has a well-founded fear of persecution in Fiji for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT 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.

   Refugee criterion

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. 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.

9. 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.

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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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’).

18. ‘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.

19. 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

20. 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. The DFAT Country Report on Fiji, dated 14 April 2015, is relevant in the present case.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

21. The applicant is a [age]-year-old woman born in [Fiji]. The applicant first arrived in Australia in May 2013 as the holder of a visitor visa and remained for a period of approximately 3 months. She returned to Australia [in] March 2014 as the holder of a visitor visa valid for one month and has remained in Australia since lodging the present application. Prior to her arrival in Australia, the applicant resided in Suva.

22. In her visa application form, the applicant identified herself as being of Fijian ethnicity and Christian religion and stated that she speaks both English and Fijian. The applicant indicated that she was self-employed as a [occupation] prior to her arrival in Australia. Details were provided of a [child], presently residing in Fiji, and a [relative] residing in Australia. The applicant indicated that she remained in contact with relatives in her home country by telephone.

23. The applicant claimed in her visa application form that she decided to come back to Australia because she feared that things would happen to her back in Fiji. She stated that she loved Australia and the Australian government in comparison to her own country’s leadership and that she was in fear because she had no right to speak out. When asked whether she had experienced any harm in Fiji, the applicant stated that she had been taken by army officers and questioned about gathering with a group of women. The applicant stated that if she returned to Fiji, she feared the army and government would punish her if she continued to meet with the group of women. Submitted with the visa application was a certified copy of the applicant’s Fijian passport. The applicant indicated that she would provide further supporting documents at a later point in time. No further documentary evidence from the applicant appears on the departmental file.

    Primary interview

24. The applicant attended an interview with a departmental officer [in] August 2014 and the Tribunal has listened to the recording of that interview.

25. At the primary interview, the applicant stated that she most recently travelled to Australia on a one-way ticket with a friend who has also applied for a protection visa. When asked about her intentions in travelling to Australia, the applicant stated that she fell in love with Australia on her first visit and thought that the lifestyle was very different to that in Fiji. For that reason, she decided to return and attempt to stay in Australia. The applicant stated that she was presently residing in a household with three other persons who were related to [her].

26. The applicant was previously married but her husband is now deceased. She and her husband had no children of their own but adopted [children] informally, including the [child] identified in the visa application. The applicant explained that she hadn’t listed her [other] children in the application as they were now married. The applicant’s husband was employed as a [occupation] before suffering a [medical condition] during the elections in 2000.

27. The applicant confirmed that she had previously been self-employed as a [occupation], making and selling [products] and [other items] for around three years. The applicant was assisted to establish her business through a women’s group within her church and contributed part of her income to the church and her pastor as tithes. The applicant closed her [business] just prior to her departure from Fiji. The applicant denied receiving a pension in Fiji but stated that she had received $19,000 as a lump sum from her husband’s provident fund. The applicant had also received money from the sale of her marital home. That money had now been spent and the applicant relied on income from her business to meet her daily living expenses. The applicant’s [child]’s education was funded by a trust fund established after her husband’s death.

28. The applicant claimed that she had applied for a protection visa to remain permanently in Australia because of the difficulties of life in Fiji under the military government. The applicant described those difficulties as consisting of the lack of freedom speech in Fiji, the high cost of living and her inability to access social security benefits.

29. When asked why she was fearful of returning to Fiji, the applicant stated that there were restrictions on attending gatherings and freedom of speech and that she found the prevalence of military officers moving about the community frightening.

30. Asked specifically about the women’s group mentioned in her visa application form, the applicant stated that she sometimes met with a group of [women] to talk about the government, their rights and their work. The applicant described it as an informal gathering of friends who met [once] a month at a park in Suva. The applicant started attending the gatherings in 2008 but stopped in 2010 because the group became suspicious that they were being followed. The applicant also agreed that part of the reason why she stopped attending the gatherings was because she had started her business in 2010.

31. The applicant stated that she had voted at the 2000, 2001 and 2006 elections and supported the Labour Party. She expressed a fear of further instability in Fiji as a result of the 2014 election based on her observations during the last election, including a shooting she had witnessed, and recent conversations with her children.

32. The delegate asked the applicant why she had returned to Fiji following her visit to Australia in 2013. The applicant stated that one of the reasons she had returned was to make arrangements for her [child]’s accommodation and education.

33. The applicant also mentioned that one of her daughters, who had been employed as a [occupation], had recently lost her job. She had been experiencing difficulties in her marriage to her husband, who was also a [occupation]. The applicant’s daughter had not received any support from the [workplace] and her employment had been terminated.

    2014 elections and general economic and security situation

34. Country information before the Tribunal indicates that the general elections held on 17 September 2014, produced Fiji’s first democratically elected government since the military coup in 2006. The Fiji Election Commission rejected all allegations of "corrupt and unlawful practices," and a 90-member Multinational Observers Group confirmed that the elections were free and fair[1]. Voter turnout was 84 percent. Fewer than 4,000 of the 500,000 votes cast were invalidated. There were no reports of violence or intimidation[2]. On 22 September 2014, J. V. Bainimarama of the Fiji First party, who had served as interim prime minister, took office with a pledge to be "the Prime Minister of all Fijians, for all Fijians."

    [1] >

    The Freedom in the World 2015 – Fiji[3] report, published by Freedom House on 15 April 2015, states that citizens of Fiji enjoy broad freedom to travel, live, work, and seek education inside and outside the country. Citizens can freely own property and establish businesses, and Fiji's economy has recovered to some extent from the global economic recession and general atmosphere of uncertainty under the interim government.

    [3]

35. Fiji introduced a social pension scheme in 2013, which pays a monthly pension benefit of 30 Fijian dollars and has an eligibility age of 70.[4]

    [4]

    Freedom of speech

36. The Freedom in the World 2015 – Fiji[5] report, confirms that the interim government imposed severe restrictions on freedom of assembly and association, but states that these were gradually relaxed in the two years leading to the general election. Police permits are still required for public gatherings and protests, but there were no reports of denials or last minute orders to cancel events in 2014, as opposed to previous years.  

    [5]

37. The same report states that there were no confirmed reports of government restrictions on private discussion of political matters or other sensitive topics in 2014. Personal blogs and other forms of social media, both for and against the interim government, operated with relative freedom, unlike traditional media.

38. The DFAT Country Report for Fiji[6] provides the following advice with regard to persons known or perceived to hold anti-government political opinions in Fiji:

    Fiji’s constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.

    … some uncertainty remains about the permissible limits on public commentary. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy.

    [6] DFAT Country Report - Fiji, April 2015, 3.70 – 3.74

39. According to an advice prepared for the Refugee Review Tribunal by DFAT on 26 June 2013[7], DFAT was not aware of reports of ordinary individuals who were 'known' to be opposed to the regime being subject to harm unless they had also publicly expressed opposition to or criticised the regime. Nor was DFAT aware of any ordinary or past members of Fiji political parties being subjected to harm unless they were also high-profile politicians or vocal opponents of the regime.   

    [7] FJI42283 – DFAT Report 1517, 26 June 2013

    Factual findings

1. The Tribunal is not satisfied, on the basis of the information before it, that the applicant’s claims are credible in their entirety. The Tribunal is prepared to accept the applicant’s claims regarding her family circumstances and past employment, and the Tribunal considers it plausible that the applicant was involved with a women’s group attached to her church and that their conversation may have from time to time traversed political terrain. In view of the restrictions on freedom of assembly and association imposed by the military-led interim government at the time, the Tribunal considers it possible that the applicant and her colleagues may have, felt some concern or trepidation about continuing to meet as they did. In the absence of an opportunity to question the applicant further, however, the Tribunal is not satisfied that the group was in fact being followed or was of any particular interest to the Fijian authorities. The Tribunal is also not satisfied that the claim made in the visa application form, that the applicant was taken by army officers and questioned about gathering with the women’s group, is true.

2. The Tribunal is not satisfied that the applicant holds any particular political opinion, or is perceived by others to hold any particular political opinion. Whilst the applicant indicated that she generally supported the Fiji Labour Party, the Tribunal is not satisfied that the applicant has been involved in any political activities beyond voting at elections and informal political discussion within her women’s group.

3. The Tribunal finds that the general political and security situation has changed significantly since the applicant’s departure from Fiji. Contrary to the applicant’s expressed fear of further instability in Fiji as a result of the 2014 election, the Tribunal accepts the independent information before it that the elections were broadly democratic and calm. The Tribunal also finds that most restrictions on freedom of speech, assembly and association have now been lifted.

4. The Tribunal does not accept that the applicant is, as a result of her past or present conduct, of any adverse interest to the Fijian authorities. Furthermore, on the basis of the country information before it, the Tribunal does not accept that the applicant would garner any unwarranted attention were she to continue to meet with her church women’s group, engage in informal political discussion, and generally support the political party of her choosing, upon return to Fiji, now or in the foreseeable future. The Tribunal is not satisfied that the applicant has any interest in engaging in political activity at any higher level.

5. The Tribunal has also considered the applicant’s claims regarding the high cost of living in Fiji and her inability to access social security benefits. The Tribunal accepts that the economic opportunities available to the applicant in Australia may be greater than those available to her in Fiji. However, the Tribunal notes that the applicant has been able to support herself in the past through her [occupation]ing business and is not satisfied that she would be unable to do so again upon return to Fiji now or in the foreseeable future. Although the applicant has complained of an inability to access social security benefits, the Tribunal is not satisfied that the applicant would be discriminatorily or intentionally denied any pension or benefit available to others who meet eligibility requirements.

   Refugee criterion

6. On the basis of the factual findings above, the Tribunal is not satisfied that the applicant’s circumstances, including her family and employment situation, political preferences and activities, and involvement with her church and women’s group, give rise to a real chance of persecution.  Accordingly, the Tribunal is not satisfied that any fear of persecution held by the applicant for reasons of her political opinion, religion, or membership of a particular social group, is well founded.

7. The Tribunal is not satisfied that any economic disadvantage faced by the applicant in Fiji would amount to significant economic hardship threatening her capacity to subsist, nor is the Tribunal satisfied that she would be denied access to basic services or the capacity to earn a livelihood of any kind. The Tribunal is not satisfied that any difficulties she would face in this regard, would involve serious harm of any kind. Nor is the Tribunal satisfied that it would involve systematic and discriminatory conduct amounting to persecution for a Convention reason.

8. The Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.

9. The applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection criterion

10. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

11. For the reasons outlined above, the Tribunal is not satisfied that the applicant’s circumstances, including her family and employment situation, political preferences and activities, and involvement with her church and women’s group, give rise to a real risk of significant harm. Nor is the Tribunal satisfied that any economic disadvantage faced by the applicant in Fiji would be intentionally inflicted or caused or otherwise amount to significant harm, as defined in the legislation.

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

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

    DECISION

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

    Rachel Homan
    Member