1415886 (Refugee)

[2015] AATA 3320

1415886 (Refugee) [2015] AATA 3320 (18 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415886

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Meena Sripathy

DATE:18 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2015 at 3:51pm

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], who claim to be citizens of Fiji, applied for the visas [in] November 2013 and the delegate refused to grant the visas [in] September 2014. [The applicant] claims to fear persecution at the hands of the military on the basis of that her partner, [Mr A], was threatened by them. The second named [applicant] claims to be a member of the family unit of the applicant and did not make specific protection claims of her own.

3. 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.

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

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

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

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘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.

18. 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

19. 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

20. 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 children.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

21. [The applicant] is a [age] year old woman born in [Fiji].  [The second applicant], her daughter, is [age] years old.  The applicants departed Fiji in June 2013 and travelled to [Country 1] where they resided until [November] 2013.  They arrived in Australia on that date as the holders of visitor visas, and have remained in Australia since that time. 

22. In her application form [the applicant] identified herself as of Pacific ethnicity, Catholic religion, and she speaks, reads and writes Fijian.  She declares she is in a de facto relationship since 2009, which commenced in [Fiji]. She holds a Fijian passport issued in [2012] in Fiji.  She completed secondary school and obtained post-secondary certificate level  qualifications in [a course].  She stated her occupation as a [occupation] in [a certain industry], and provided details of numerous positions held in these industries from 1997 up to May 2013 in Fiji. 

23. The applicant claimed in her application form that she left Fiji because the military threatened her partner and his family was mentioned in this threat, and they left for their safety.  She stated that she had not personally experienced any harm.  In response to the question as to what would happen if she went back, the applicant stated “We don’t know, as we were threatened. But anything can happen as we know that Fiji is still a coup country, and we were advised the better thing for us to do is to live (sic).” She stated that she fears harm by the Fiji military and the reason this will happen to her is “Because of my partner, [Mr A].” She does not believe the authorities can protect her because her partner was threatened and they are part of his family.

24. The applicant departed Fiji in June 2013 on her own passport, which she had no problems obtaining. The applicant indicated that she remained in contact with her family in her home country by telephone.

25. [The second applicant] is the daughter of [the applicant]. She is [age] years old and a school student. She travelled to Australia on her Fijian passport which was issued in [2013].

26. The departmental file also contains notes of email and face to face exchanges between the applicant, her partner, [Mr A], and the Australian High Commission in Fiji relating to issues experienced by [Mr A] in Fiji and the applicant’s difficulties obtaining a visitor visa for Australia in and around May 2013. 

27. [In] May 2013 the applicant was refused a visitor visa applied for in Suva, Fiji on the basis of PIC 4003. File records suggest this related to the applicant having a [relative] in the Fiji military. The relevant determination which led to this refusal on PIC 4003 was subsequently revoked in September 2013, allowing the grant of a visitor visa to the applicant. 

    Interview with the delegate

28. The applicant attended an interview with a departmental officer [in] February 2014 and the Tribunal has listened to the recording of that interview.  The applicant reiterated and expanded on her claims. A summary of her claims and evidence is contained in the delegate’s decision record, a copy of which was provided by the applicant to the Tribunal.

29. Following the interview, the applicant provided the Department numerous documents in support of her application including a copy of an email in the Fijian language sent by the applicant purportedly to government officials [in] February 2013 requesting assistance in resolving her partner’s business transactions; and a letter, dated [in] September 2013, from Immigration [Country 1], advising of the grant of an interim visa to stay in [Country 1] while her application for a visitor visa is being processed.

    Information provided to the Tribunal

30. The applicant provided a copy of the delegate’s decision at the time of lodging her application for review [in] September 2014.

31. In October 2014, further documents were submitted in support of the application.  Included among these documents, not previously provided to the Department, were the following:

    ·a letter from the applicant’s partner, [Mr A], explaining what happened to him and the applicants while living in Fiji;

    ·copy of an article from [a website].  The cover letter from [Mr A] claims the individual named in this article, [Mr B], is his partner’s [relative] and the article supports her claims that the coup regime is corrupted and ‘full of Coup PM’s thugs’.

    ·Statement by [Mr A] of the meeting at the Fiji Prime Minister’s office [in] May 2013 and events following.

    ·Copy of email correspondence to support [Mr A]’s claimed attempts to resolve his complaints

    ·Documents relating to the second named applicant’s schooling in Australia

    ·Copy of an email sent from Australian High Commission to [Mr A] confirming his contact with the High Commission [in] May 2013 and [in] June 2013.

32. In November 2014, [Mr A] provided further documents relating to the progress of the second named applicant at school in Australia, a letter from his treating [psychiatrist] relating to medical conditions he suffers from, and a copy of a decision of the Social Security Appeals Tribunal, dated [October] 2014, relating to his income support payment.

    Tribunal Hearing

33. The first named applicant appeared before the Tribunal on 22 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].  The second named applicant did not appear.  The Tribunal confirmed with the first named applicant that her daughter does not seek to make any claims of her own, and is only applying on the basis of her relationship with the first named applicant.

34. At the hearing the applicant provided details of her current circumstances and confirmed the personal details provided in the application, which she completed herself.  She told the Tribunal she recently married [Mr A] and they have been, and continue to, live together, with her daughter.  She has no other family members in Australia.  In Fiji, she has her parents [and siblings].  She is in regular contact with her parents and they keep her informed about her siblings.  She told the Tribunal they are well and have not spoken to her about any problems. She said she heard from her parents that her [relative] in the military recently had a rank promotion.  The applicant confirmed that she worked on a full time basis continuously in Fiji since 1997 up until she departed the country in June 2013. She subsequently resigned by email after coming to Australia and was most recently in contact with her previous boss to request him to be a referee for a position she applied for here.  She said there were no issues with her employment in Fiji and her boss was happy to be a referee for her. 

35. The Tribunal asked the applicant why she left Fiji.  She reiterated the claims made in the application and to the delegate.  In summary, she explained to the Tribunal that she left Fiji on account of a threat made to her partner [in] May 2013 during a meeting held at the Prime Minister’s office. 

36. She referred to the extortion experienced by her partner relating to the purchase of a boat and a real estate issue. Regarding the real estate matter, she explained that [Mr A] sought to rent a property when he came back to Fiji in early 2010.  He paid a sum of FJD$ 28,000, being 6 months rent in advance, to a real estate agency to lease a house. However the house was in an unfit state to live when it was made available to him, and he refused to move in.  He asked the real estate agency to refund him his money or find him another property to live in, but they refused to assist him.  He tried first to take the matter to the Real Estate Board but they did not assist.  He made various other attempts to recover his money including going to the police and engaging lawyers. He also raised the matter with the Prime Minister’s office.  The applicant accompanied him to numerous of these visits.  She told the Tribunal neither she nor [Mr A] were threatened at any of these meetings.  They were however increasingly frustrated at the inability to resolve the complaint and recover the money. 

37. The second matter related to [Mr A]’s purchase of a boat. He paid a substantial amount of money for this, over FJD$100,000.  It was delivered to them [in] July 2010 but from the very beginning it had major problems. The company took the boat away to Suva to fix it, but then demanded [Mr A] pay more money to get it back.  They continued to extort him in this manner over a period of 6 months. Eventually he was able to get the boat back in his possession but only after paying more money.  He was also never given a receipt for the money he paid for the boat, to prove his ownership. He pursued his complaints about the boat to various government agencies including consumer agencies.  He also raised this complaint with the Prime Minister’s office. 

38. The applicant told the Tribunal [Mr A] pursued both his complaints through the Prime Minister’s office continuously since 2010.  Initially he had some progress, but the situation worsened over time.  She said she attended many of the meetings with officers from the Prime Minister’s office with him.  She told the Tribunal that she never experienced any harm or threat of harm directed at her or her partner at any of the meetings they attended together.

39. In May 2013, her partner received a call to come in to the Prime Minister’s office.  He went to this meeting alone. He was spoken to in an aggressive manner and told to be careful or he and his family will ‘end up in a river’.  The applicant said that when he returned home from this meeting he was visibly shaken and upset and told her what had happened. They decided to leave Fiji after this.  She and her daughter travelled to [Country 1] first. 

40. The Tribunal asked the applicant if she had any plans to leave Fiji before this point, noting that her passport was issued in [2012]. She said she had a plan to visit [a certain town in Australia] to have a look around. She applied for a Tourist visa in April 2013 but this was refused. She later came to understand it was because her [relative] was in the military. She said the plan at that stage was to come to Australia and have a look around and if she liked it, they may consider getting married and living here. She said her partner had started to think about leaving Fiji from around the end of 2012, as he was getting frustrated with the problems he had in Fiji relating to his financial transactions. This was before the threat was made against them [in] May 2013, and at that stage the plan was first to visit Australia only, not move there. The applicant confirmed that when she made this first application for a Tourist visa it was only for her. She did not apply for her daughter at that stage.

1. The applicant told the Tribunal she is afraid to return to Fiji because of the threat made to her partner [in] May 2013.  She said he was very scared after that.  She said in Fiji they beat people up and she is afraid they will do that to them.  She is afraid because she is his partner. They all know she is his partner and so she is at risk of harm because of that.  She believes that they will take her to the barracks and beat her.

2. The Tribunal asked the applicant if she has had any contact with the government or authorities in Fiji since coming to Australia. She said she had not.  It asked if she or [Mr A] had taken any steps to pursue his complaints since coming back to Australia.  She told the Tribunal they had not. The applicant told the Tribunal that [Mr A] will not return to Fiji because of what happened to him there.  She said he does not want to go back. 

3. The Tribunal put to the applicant, if [Mr A] will not return to Fiji, and the threat made to him was to leave these matters alone, what does she fear if she returned to Fiji without him? She said that she is fearful because they would still regard her as his family. The Tribunal asked the applicant if she would pursue [Mr A]’s financial matters if he did not return to Fiji.  She said she does not think she would.      

4. The Tribunal put to the applicant that there would appear to be no risk the threat would be carried out if the complaints are not being pursued.  In response, the applicant restated that she would not go back to Fiji because she is afraid. When pressed for what she is afraid of, if [Mr A] does not return, and neither he nor she pursues the complaints, she said she has no idea, but, she repeated, they threatened him and she is his partner.

5. The Tribunal asked the applicant if there was any other reason she feared return to Fiji. She said there was no other reason.  The Tribunal asked the applicant who is [Mr B].  She told the Tribunal he is her [relative]. She was unable to provide a more specific relationship, other than to say that he is her [relative] and his [children] are her [relatives].  When asked what she knew about [Mr B], the applicant told the Tribunal he was [in an occupation].  She heard via a Facebook post by [one of her relatives] that he was assaulted.  He was taken from his house by army officers and beaten up. She believed the reason for this attack was because he sent emails to the Prime Minister about the unauthorised use of his [intellectual property]. The Tribunal asked the applicant if she had any fear of return to Fiji based on what happened to [Mr B].  She said she did not, but that it demonstrated that Fiji was not a democracy.  It asked if she believed that this incident had any connection to [Mr A]’s complaints.  She said she did not believe so, but they know that they are related.   

6. In his evidence, [Mr A] gave an account of his problems in Fiji. He told the Tribunal he met the applicant in December 2009 while on a visit to Fiji, and they hit it off together immediately.  He returned to Australia for a brief period, sold his house and returned to be with her, intending to live there. They commenced living together soon after his return in 2010 and have remained living together since then.  [Mr A] gave the Tribunal an account of the two financial transactions which were the subject of complaints he pursued from 2010 to 2013 in Fiji, relating to recovery of moneys paid for a rental lease and the purchase of a boat. The Tribunal also asked him about the meeting [in] May 2013.   His evidence of these matters was substantially consistent with the evidence given by the applicant. The Tribunal asked [Mr A] why they threatened him. He said he believed it was because he was being so persistent in pursuing his complaints and they wanted him to stop.  They told him he better be careful.  If he continued to persist with the complaints, he and his family will end up in the river.  He decided to leave Fiji after these threats.  He first made arrangements for the applicants to leave.  He left a few days after.

7. The Tribunal asked [Mr A] if he has taken any actions in respect of his complaints since leaving that country.  He said he has sent some emails since coming back to Australia to Prime Minister Bainimarama asking how they could do this to him.  The Tribunal noted that no evidence of these emails has been provided to the Tribunal and invited him to provide them.  The Tribunal asked [Mr A] if he has any plan to return to Fiji.  He said he does not.  [Mr A] told the Tribunal he will not go back to Fiji because of what happened to him there.  He said nothing in that country has changed.  He referred to the incident of the attack against [Mr B] as an example of what the regime is capable of.  The Tribunal asked [Mr A] if he intends to pursue the matters of his financial transactions in Fiji from Australia.  He said there is little he can do from here, he needs to be there to pursue the matters and he will not go back.  

8. The Tribunal asked the applicant what harm she fears if [Mr A] does not wish to return to Fiji and has no plan to pursue his complaints from here.  In response she repeated that she fears harm because she is his partner and they threatened him.

9. Following the hearing, the Tribunal received copies of email correspondence from [Mr A] in support of the review application. Included among the correspondence received included the following relevant documents:

   ·An email from [Mr A] reiterating his claims regarding the actions taken by him in Fiji that placed the review applicants in danger, and alleging that he was denied protection from the Australian government.

   ·Copy of an email dated [in] February 2012 sent by him to Prime Minister Bainiramama seeking a meeting to discuss his financial disputes.

   ·Copy of various emails purportedly sent by the review applicant on behalf of [Mr A] regarding his financial disputes, in 2012 and early 2013. 

   ·Copy of numerous emails sent by [Mr A] in 2013 after he left Fiji, to individuals in Fiji, as well as to various Australian politicians including Mr Kevin Rudd and Mr Bob Carr.

   ·Copy of an email sent to [Mr A in] September 2014 from the Australian High Commission, confirming his contact with them [in] May 2013 and [in] June 2013 regarding his concerns about his safety.  The email confirms that he was advised that if he continued to feel unsafe or threatened, to consider leaving Fiji given his concerns about the local authorities as the Australian High Commission is unable to provide physical protection. 

   ·Copies of printouts in support of review applicant’s evidence of Facebook conversations with [Ms C] relating to the attack on [Ms C]’s father, [Mr B].

   Independent country information

   September 2014 elections

10. Country information before the Tribunal indicates that Fiji held general elections on 17 September 2014 in accordance with the constitution promulgated in 2013 and following eight years of military rule. In a contest deemed credible and “broadly reflecting the will of the Fijian people” by the Australian-led Multinational Observer Group, citizens elected 50 new parliamentarians. Josaia Voreqe (Frank) Bainimarama’s Fiji First Party won 32 of the 50 seats and he was sworn in as prime minister. Bainimarama led a bloodless coup in 2006. In 2009 his interim government abrogated the existing constitution and then ruled by decree until national elections returned the country to a constitutional republic during the year. Civilian authorities regained effective control over the security forces after the general elections.[1]

    Targeting for harm or other mistreatment of individuals associated with or employed by companies or businesses involved in disputes with the Fijian government 

    [1] US State Department Human Rights Practices Reports, Human Rights Report 2014 Fiji, ​ (accessed 10 July 2015)

11. Regarding the applicant’s specific claims concerning threats made to her partner prior to his departure in May 2013, the Tribunal located some reports of individuals (including foreigners) who have been subject of adverse government attention following business related disputes. For example, a report from stuff.co.nz, dated 24 May 2010, referred to a New Zealand couple that owned a resort in Fiji who were subject to adverse attention from the interim government following a dispute over a mortgage.[2] 

    [2] Field, M. 2010, ‘Fijian resort owners held prisoner by military unit’, stuff.co.nz, 24 May < Accessed 21 July 2015 <Attachment>.

12. In November 2010, US owned bottled water company Fiji Water shut down its operations in Fiji after the interim government’s announcement that it would impose a 15 cent per litre tax on bottled water at locations where more than three and a half litres per month were extracted. Fiji Water was the only bottled water producer in Fiji to be affected by the new tax.[3] A report from ABC Radio Australia, published on 29 November 2010, also indicates that, just prior to the announcement of the tax, the company’s head of operations in Fiji, David Roth, had been deported “after it was alleged he had been interfering in national affairs”.[4] A report from Australian Associated Press, published on 30 November 2010, states that the interim government’s explanation for Roth’s deportation was that he had acted “in a manner prejudicial to good governance and public order”. It is also worth noting that this report indicates that although “the company has sought to stay clear of Fiji's volatile politics”, it had recently become “embroiled in a dispute between Commodore Bainimarama and his deputy”. Interim Prime Minister Voreqe (Frank) Bainimarama stated at the time of Roth’s deportation that “Fiji would not tolerate foreigners interfering in its domestic affairs”.[5] According to the aforementioned ABC Radio Australia report, Fiji Water had also been in conflict with the interim government two and a half years previously over an attempt by the latter to introduce a similar tax. During 2009, the company had also been “involved in legal action over questions about what it was claiming to have earnt from its water exports”, although this legal action ended after the abrogation of the Constitution that year.[6] Fiji Water reversed its decision to shut its operations in Fiji one day after its closure announcement following discussions between the company’s lawyers and interim Prime Minister Bainimarama, stating that “we have agreed to comply with Fiji’s new water tax law”.[7]

    [3] ‘Massive tax hike sees Fiji Water turn off the taps and let go hundreds of Fijian workers’ 2010, Courier Mail, source: Australian Associated Press, 30 November – Accessed 21 July 2015 – <Attachment>; ‘US owned “Fiji Water” shuts down’ 2010, ABC Radio Australia, 29 November – Accessed 21 July 2015 – <Attachment>.

    [4] ‘US owned “Fiji Water” shuts down’ 2010, ABC Radio Australia, 29 November – Accessed 21 July 2015 – <Attachment>.

    [5] ‘Massive tax hike sees Fiji Water turn off the taps and let go hundreds of Fijian workers’ 2010, Courier Mail, source: Australian Associated Press, 30 November – Accessed 28 September 2011 – <Attachment>.

    [6] ‘US owned “Fiji Water” shuts down’ 2010, ABC Radio Australia, 29 November – Accessed 28 September 2011 – <Attachment>.

    [7] Callick, R. 2010, ‘Fiji Water backs down and reopens bottling plant’, The Australian, 1 December – Accessed 21 July 2015 – <Attachment>.

13. In its 2011 Freedom in the World report, Freedom House reported that during 2010 the interim government “threatened retailers with prison if they refused to stock certain items or raise prices above the government-recommended level.”[8]

    Report of torture and ill treatment by security forces

    [8] Freedom House 2011, Freedom in the World 2011 – Fiji, 26 May < Accessed 29 August 2011 <Attachment>.

14. The Tribunal notes a report by Amnesty International regarding an alleged beating of a [man] over texts to the Prime Minister.  The report referred to credible information received that [army] officers took the [man] from his home [and] assaulted him.  The attack followed an angry exchange of text messages with Bainimarama alleging that his [intellectual property] were used without [permission]. Amnesty indicated that this report follows several other recent reports of torture and other ill treatment by security forces.[9]

    [9] [Source deleted].

    Findings and reasons

15. The Tribunal has considered all the evidence before it, including the applicant’s written claims and oral evidence to the delegate and the Tribunal, the oral evidence of [Mr A] and documents submitted in support of the application.

    Nationality

16. On the basis of the applicant’s oral claims and passport, the Tribunal accepts the first named applicant is a citizen of the Republic of Fiji and assess her claims against Fiji. 

17. The applicant claims to fear harm at the hands of the military or government officers because her partner [Mr A] was threatened, and that this threat extended to his family members.  She claims that he was warned to desist from pursuing his complaints regarding the financial matters he was pursuing in Fiji and if he did not, that his life and that of his family would be at risk. The applicant claims to fear return to Fiji because of this threat made to [Mr A] and the fact that she is [Mr A]’s partner.  She claims that the present government in Fiji are unpredictable and have been known to be brutal and therefore she fears being questioned and beaten.

    Credibility and factual findings

18. The Tribunal explored at some length with both the applicant and [Mr A], her fears of returning to Fiji and the background to [Mr A]’s commercial disputes in Fiji that were the subject of complaints he was pursuing in Fiji, and eventually the reason for the threat made against him in May 2013. The Tribunal observes that the applicant and [Mr A] have given a substantially consistent account of these matters in the application, at interview with the delegate and in oral evidence to the Tribunal.  The account is also supported by the email correspondence submitted to the Tribunal by [Mr A] following the hearing. The Tribunal considers the applicant gave her evidence at hearing in a frank, open and straightforward manner.  Her account was not exaggerated or embellished. While [Mr A] was at times agitated, excited and emotional while giving his evidence, the Tribunal acknowledges the significance and impact that his experiences in Fiji had on him personally.  It accepts that he was frustrated and upset by his experiences there.  It also takes note of his own evidence, and medical reports submitted, relating to his mental health in its consideration of his claims and evidence. On this basis, the Tribunal accepts the review applicant and [Mr A] as generally credible witnesses, and makes the following findings on the oral evidence of the applicant and witness, together with supporting documents and correspondence and other information contained in the Department and Tribunal files.

19. The Tribunal accepts that the applicant and [Mr A] met in or around December 2009 when [Mr A] was visiting Fiji on a holiday. It accepts that [Mr A] subsequently came back to Australia and returned to Fiji in February 2010 with an intention to commence a relationship and live with the applicant. The Tribunal accepts that the applicant and [Mr A] were in a de facto relationship since then and continue to be in an ongoing partner relationship.

20. The Tribunal accepts that [Mr A] suffered financial losses as claimed arising in the context of two distinct commercial transactions during the period he resided in Fiji since 2010.  For present purposes, the Tribunal considers it is not necessary to make more than general findings in respect of these matters, and it does so as follows. 

21. The Tribunal accepts that soon after his return to Fiji in 2010, [Mr A] paid an amount of FJD$28,000 rent in advance to a real estate agency to secure a residential property lease.  When the property was presented to him, he considered it not in a fit state to live and did not move in.  He subsequently tried to recover the monies he paid.  The Tribunal accepts that he took various steps to pursue the matter, raising the issue with Real Estate Board and complaining directly to the Prime Minister’s office. 

22. In respect of the second dispute, the Tribunal accepts that [Mr A] paid around FJD$122,000 to a private company for a custom made boat.  It accepts that [Mr A] paid more money to the company for repairs and that he was in dispute with the builder over the sum of money paid to them and the paperwork relating to the transaction.  The Tribunal accepts that [Mr A] took various steps to pursue this matter, including engaging a private lawyer, raising the matter with the relevant consumer agency, and making a complaint directly with the Prime Minister’s office. 

23. The Tribunal accepts that the applicant assisted [Mr A] in his efforts to resolve his commercial disputes by attending various meetings with Fijian government agencies and departments and also the Prime Minister’s office. 

24. On the basis of the applicant’s oral evidence, email correspondence submitted by the applicant relating to the disputes, and documents on the departmental file, the Tribunal finds that the applicant and [Mr A] had begun considering leaving Fiji from around the end of 2012. It notes that her passport was issued in [2012]. The Tribunal finds that the applicant first applied for a visa to visit Australia in or around April 2013. This application was refused [in] May 2013 and the applicant and [Mr A] met with the Australian High Commission to discuss the refusal [in] May 2013.

25. The Tribunal accepts that [Mr A] attended a meeting [in] May 2015 in relation to his ongoing complaints and that he was told at this meeting to desist from pursuing his complaints. The Tribunal accepts that following this meeting [Mr A] feared for his safety and that of the applicant and her daughter and that he arranged for them and himself to depart the country shortly after.   

26. The Tribunal finds, on the applicant’s own evidence, corroborated by the evidence of [Mr A], that [Mr A] has no desire or intention to return to Fiji in the reasonably foreseeable future.  The Tribunal asked the applicant whether, in the absence of [Mr A], she would pursue his commercial disputes in Fiji and she stated that she would not. 

27. Having made the above material findings of fact, the Tribunal will now consider whether the applicant meets the criteria for a Protection visa.

    Refugee Criteria –well founded fear of persecution

    The issue in the present case is whether the applicant has a present fear of a risk of harm in the reasonably foreseeable future.  As explained in the Relevant Law section above, a fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.  A ‘well founded fear’ involves both a subjective and objective element.  That is, the Tribunal must be satisfied that the applicant has a genuine fear of being persecuted and that there is a real chance of that persecution occurring. 

    Fear of harm arising from threat made to [Mr A in] May 2013

1. In its findings above, the Tribunal has accepted that [Mr A] experienced financial losses in Fiji in in respect of two specific commercial disputes.  It has also accepted that he attempted to resolve his disputes during the period he was in Fiji through numerous legal and other means, including approaching the office of the Prime Minister directly.  The Tribunal notes the applicant and [Mr A]’s own evidence that during 2011 to 2013 he received some level of cooperation and assistance from officials from the Prime Minister’s office.  However, [in] May 2013, the applicant claimed that [Mr A] had a meeting at the Prime Minister’s office and was informed that no further assistance would be offered to him and he was warned in strong terms, which he considered threatening, to desist from pursuing his complaints.

2. The applicant claims that her fear of returning to Fiji now is based on the threat made against [Mr A] at this meeting.  The applicants and [Mr A] departed Fiji within days of this meeting, and the Tribunal accepts that the timing of their departure, so soon after the meeting, support that they held a subjective fear for their safety. However, the concept of a ‘well founded fear’ also involves an objective element.  

3. The Tribunal is not satisfied there is an objective basis to support a finding that there is a real chance that the applicant would suffer serious harm because of the threat made against [Mr A] on that day. [Mr A] has no plan or intention to return to Fiji in the reasonably foreseeable future.  Both he and the applicant gave clear evidence to this effect to the Tribunal.  The applicant also told the Tribunal she will not pursue his commercial disputes in his absence.  On the basis of this evidence, the Tribunal finds that there is no real chance of persecution against the applicant arising from the threat purportedly made against [Mr A in] May 2015.  [Mr A] gave oral evidence to the Tribunal that he was warned against further pursing his commercial disputes in Fiji and threatened with harm to him and his family if he did.  Accepting the possibility that such a threat was made against [Mr A] and his family, the Tribunal is of the view that is no real chance of serious harm to the applicant in the reasonably foreseeable future, in the form of such threat being carried out, because neither [Mr A] nor the applicant will pursue the complaints. 

4. The Tribunal has also considered whether the applicant’s reasons for not pursuing [Mr A]’s complaints are due to her fear of persecution. Having considered the evidence before it, the Tribunal does not accept that this is why she would not pursue the complaints.  It considers that she would not pursue his complaints because they are his financial disputes and he will not return to Fiji. In reaching this conclusion, the Tribunal takes into consideration the evidence before it concerning her role in actions regarding the complaint when she and [Mr A] were in Fiji.  It notes that she worked full time throughout this period, and while she attended some meetings with [Mr A] and assisted by sending some emails, her role was to facilitate communication rather than lead the negotiations. On the evidence before it, and particularly the oral evidence of the applicant, the Tribunal finds that she would not pursue [Mr A]’s complaints if she returned to Fiji, and the reason for this is not due to her fear of persecution.

5. While the Tribunal accepts, on the independent information before it referred to above, that individuals and businesses have in recent years, been the subject of adverse government attention following business disputes, it finds that the fact that [Mr A] has now left the country and has no intention of returning himself to pursue his matters, mean that the chances of any harm being directed to the applicant for this reason in the foreseeable future are remote or insubstantial.

6. By her own evidence, the applicant had no other profile, other than her relationship with [Mr A], and has participated in no other activity which would bring her to the adverse attention of government authorities. 

   Claim of harm arising from [Mr A]’s correspondence since departing Fiji

7. The applicant told the Tribunal she had not made any contact with the government or any officials associated with the Fiji government since departing the country, and was not aware that [Mr A] had.  However, when [Mr A] was asked this question he told the Tribunal he had sent numerous emails to individuals both in Australia and Fiji about what happened to him, and criticising the Fiji government.  He also told the Tribunal he had intentions to pursue his matters in Australia, specifically against the Australian government for failing to offer him adequate protection. 

8. The Tribunal has considered his oral evidence and the correspondence submitted following the hearing.  Having considered this evidence, it is not satisfied that [Mr A]’s actions since coming to Australia give rise to a real chance of persecution for the applicant upon her return.  The Tribunal does not accept that [Mr A]’s correspondence has been personally received by Prime Minister Bainimarama.  No evidence has been provided of any response to his correspondence which would indicate any ongoing interest in him or his matters.  The Tribunal considers that, [Mr A] having departed Fiji and ceasing to agitate his complaints there in person, there is no real chance of any retaliation or interest in him or the applicant by association. 

   Claim relating to applicant’s association with [Mr B]

9. The applicant provided evidence relating to an attack on [Mr B] which allegedly occurred as a result of a complaint made by him against [Frank Bainimarama] for the unauthorised use of his [intellectual property]. At the hearing the Tribunal discussed this matter with the applicant.  She told the Tribunal [Mr B] was related to [her].  She learned of this incident via a Facebook post by [Ms C], with whom she is in contact.  Following the hearing evidence of exchanges via Facebook with [Ms C] were provided in support of her evidence. The Tribunal is prepared to accept, on this evidence, that the applicant is related to [Mr B] as claimed. It also accepts, on the evidence of the article submitted, and the report by Amnesty International referred to above, that an attack against [Mr B] occurred as reported. 

10. However, the applicant told the Tribunal that she does not fear persecution in future arising from what happened to [Mr B].  She confirmed that what happened to him is in no way related to [Mr A]’s disputes.  She states that this incident however supports her view that there is no democracy in Fiji. 

11. The Tribunal has considered whether the applicant faces a real chance of persecution for reasons of her family relationship with [Mr B], who was recently attacked, or more generally for her political opinion in criticising the present government. Given her own evidence that she does not fear harm for reasons of her family relationship with [Mr B], and the lack of evidence that she has any active political profile, other than holding a personal opinion which she shares via Facebook with her friends and family, the Tribunal finds there is no real chance of persecution for these reasons.

12. Having considered the applicant’s claims individually and on a cumulative basis, the Tribunal is not satisfied that there is a real chance the applicant will face persecution because of the threat made against [Mr A], his correspondence and actions since departing Fiji, her family association with [Mr B], or for any other reason. 

13. Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.

    Complementary Protection criteria

14. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm as defined in s36(2A) of the Act.

15. The Tribunal found that [Mr A] has no desire or intention of returning to Fiji in the foreseeable future and the applicant will not pursue his complaints in his absence.  Therefore, having regard to the evidence and claims before it, and the Tribunal’s findings above, the Tribunal is not satisfied there is any substantial basis to believe government officials or the military would harm the applicant now or in the reasonably foreseeable future The Tribunal is not satisfied that there is any basis on which the applicant will be targeted for harm.  The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Fiji for reason of [Mr A]’s commercial disputes, his or her political opinion, her family relationship with [Mr B], or for any other reason. 

16. 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

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

    Meena Sripathy
    Member