1417270 (Refugee)

[2016] AATA 3111

1417270 (Refugee) [2016] AATA 3111 (18 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417270

COUNTRY OF REFERENCE:    Fiji

MEMBER:Linda Holub

DATE:18 January 2016

PLACE OF DECISION:           Sydney

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

Statement made on 18 January 2016 at 4:31pm

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 claims to be a citizen of Fiji applied for a protection visa [in] April 2014 and the delegate refused to grant the visa [in] September 2014.

3. According to the Department’s movement records the applicant first travelled to Australia [in] January 2010 on a [temporary] visa and departed [in] March 2010 and then again [in] May 2012 also on a [temporary] visa departing [in] August 2012.  The applicant arrived for a third time [in] January 2014 on a [different temporary] visa.  The visa weas valid until [April] 2014.  The applicant lodged her application for Protection [in] April 2014.

4. The applicant appeared before the Tribunal on 6 January 2016 to give evidence and present arguments.  The applicant was represented in relation to the review.  Her representative did not attend the hearing.

RELEVANT LAW

1. 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.

2. 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).

3. 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:

   a.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.

4. 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’).

5. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

10.The issue in this case is whether the applicant has a well-founded fear of being persecuted in Fiji for reasons of her race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

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

12.The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relation to the review application.  The Tribunal has also given consideration to the delegate’s decision record provided by the applicant to the Tribunal.

13.The applicant’s written claims for protection are contained in the application forms and supplementary evidence submitted to the Department of Immigration and Border Protection [in] April 2014.

14.The written application claimed that:

a.She left Fiji [in] January 2014 to accompany her [young relative] who is a minor to travel to Australia to be with her mother, the applicant’s [other relative].  This gave the applicant an opportunity to escape the fear of being under constant surveillance by the military regime because of her father’s fight against the Bainimarama military rule. 

b.Her father was [a senior official] of the SDL in the [Region 1] of Fiji and is a staunch supporter of the Qarase government.

c.When her father was taken into custody they were ordered by the military not to leave their residence and were continually verbally harassed and warned of deadly consequences if they disobeyed orders.  They were man-handled by soldiers which caused bruises to her arms and body.  These events have put a permanent scar in the applicant’s personal emotions and constantly creates fear that can be triggered by seeing a military person in uniform.

d.The current political situation is unpredictable and she is fearful of the expected outcome which is to overthrow Bainimarama’s party and put democracy back in place that will sentence all the participants of the recent coup in prison for life.

e.She has experienced first-hand and witnessed the treatment by the soldiers when the will of the regime is compromised.  There will be no difference in how they will treat her when she goes back because her father is still [a senior official] of the SDL in [Region 1] and they are suppressing his activity all the time.

f.The military is observing every movement of the applicant’s family and constantly has them under surveillance to suppress any exposure of the regional branch of the SDL where her father is [a senior official].  She is certain that she will go through a similar situation as the one in 2006 when the regime man-handled and harassed them, as routine treatment.

15.The following supporting documents were provided to the Department as part of the written application:

a.A certified copy of the applicant’s birth certificate.[1]

[1] DIBP file, folio 2.

b.A certified copy of the applicant’s Taxpayer Registration with the Fijian Revenue and Customs Authority.[2]

[2] Ibid, folio 1.

c.A certified copy of the front page of the applicant’s Fijian Passport.[3]

[3] Ibid, folio 3.

d.At the interview with the Department, the applicant provided a statement from her father dated [in] August 2014 in his capacity as her father and [a senior official] of the SDL Party.  It states that the family was a victim of verbal and physical harassment that took place during the coup in 2006.  It refers to him being manhandled by army officers and taken to a military camp for interrogation.  He states that the applicant was always with him and his wife and was traumatised by the events she witnessed.  It further states that a military truck would patrol the area almost every 2 hours to observe their movements and to make sure that he does not instigate any SDL meetings.  A curfew was applied to them from 6.00pm every day.  It claims that it became known to the military that the applicant had left the country to travel to Australia.  Details about her return were sought by the military.  They were advised that the applicant is not returning and has applied for a Protection visa in Australia. [4]

[4] Ibid, folio 53.

e.An email sent to the delegate [in] September 2014 addressing a number of issues discussed during the course of the departmental interview.[5]

[5] Ibid, folio 54

16.The delegate’s decision record dated [in] September 2014 indicates that the applicant was interviewed by the delegate [in] September 2014.

17.The delegate refused to grant a Protection visa to the applicant as the delegate was not satisfied that the applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied that Australia has protection obligations to the applicant under subsection 36(2)(a).  The delegate was also not satisfied that the criteria for Complementary Protection were satisfied.

18.On 20 October 2014 the applicant then applied for a merits review of that decision by the Tribunal.

19.The Tribunal wrote to the applicant’s nominated migration representative on 10 December 2015 advising that a hearing has been scheduled for 6 January 2016.

FINDINGS AND REASONS

Nationality

20.On the basis of the applicant’s passport (numbered [number]) issued by the Republic of the Fiji Islands a copy of which was, provided to the Department of Immigration and Border Protection and the Tribunal, the Tribunal finds that the applicant is a citizen of Fiji.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to reside in any country other than Fiji.

21.The Tribunal finds that the claims should be assessed against Fiji for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

Tribunal Hearing

22.At hearing, the Tribunal confirmed that the applicant wrote her application herself with advice from her migration agent.  She stands by the claims in her application and the evidence presented at her interview by the Department.

23.The applicant confirmed that she lives with her [other relative] and her [younger relatives] and has lived at the same address since she arrived in Australia on the third occasion, in January 2014.  Prior to her departure from Fiji she had been living in [a city] but has spent about a month with her parents just before she left Fiji.  The applicant also confirmed that she had travelled to Australia on two previous occasions and stayed for 3 months each time – once in 2010 and then in 2012.

24.The applicant repeated the same reason she gave at hearing when asked why she did not apply for Protection on either of those two occasions.  She explained that she is very attached to her parents and found the idea of separating from them very difficult.  She elaborated by saying that more recently her parents had encouraged her to apply as they are ageing and she will not be able to rely on them in the future.  She also said that she was the only child with her parents when her father was detained (although later in the hearing, she contradicted herself by saying that her brother was also there at the time) and they fear that she might go through the same thing again.  When the Tribunal expressed concern about the delay in her lodging her application, she said that she is the youngest child in the family and as her father might go through the same thing again, they do not want her to be put in the same position.

25.The applicant claimed in her written application that she came to Australia to escape the fear of being under constant surveillance by the military regime because of her father’s fight against the Bainimarama military rule.  Her claims state that when her father was taken into custody they were ordered by the military not to leave their residence and were continually verbally abused and warned of the deadly consequences. At hearing when asked about these incidents, the applicant said that soldiers and police came to the family home in [their home town] in December after the 2006 coup.

26.The applicant said that her father had been involved in the SDL and later the SODELPA parties from around 2002 and became [senior official] of [Region 1] in 2003.  Her mother was also a member of the SDL.  She was active in the women’s league, including arranging morning teas.  Both parents are still active members and her father is currently [a senior official] of [Region 1].

27.In relation to the detention of her father, she said that both police and military officers came to their home and said he needed to go to the military camp for questioning.  He was reluctant to go and his wife, the applicant and her brother were trying to help him resist.  It was at that point that she was manhandled and verbally abused by an officer who tried to keep her away.  Her father was detained for three days during which he was questioned, slapped and hit when he was unable to answer questions and made to run and crawl.

28.When asked why her father was taken in for questioning, she claimed that as the local SDL [senior official] he had wanted to start a campaign to garner support against the military regime.

29.The applicant claimed that her father was questioned on two further occasions – once in early 2007 and then again in April 2007, but he was not detained at these times.  She explained that officers came around mid-morning while her father was working in their planation.  He went to the police station and was questioned. When asked why she made no reference to these subsequent detentions of her father in her written claims she said she thought she had done so.  The relevant sections of her application were read out to her.  She then said that she raised them at her interview with the delegate.  Although the Tribunal confirmed that she did raise these additional incidents during the course of her interview, the fact remains that her written claims focus on a solitary incident.

30.The applicant claimed that her father had been warned that he would be under surveillance.  She said military officers walked past their house.  When asked how she knew that they were under ‘constant surveillance’, she said her father was told they would be and they recognised the people involved.  When asked if their movements were curtailed in any way, she said no.  According to her evidence at hearing, she was able to continue to her studies in [another city] and return to and from the village on weekends and holidays.  She did however, refer to the discomfort that she felt by being verbally abused and manhandled by officers during the incidents referred to previously.  The Tribunal notes that this is inconsistent with the information provided in the letter to the Department by the applicant’s father.  The Tribunal has given the applicant the benefit of the doubt in regard to the extent of monitoring described by her father.

31.The applicant claimed that the surveillance of the family home continued until 2013.  At interview, the applicant stated that the checking by the military was still occurring at the time of the interview in September 2014.  Nevertheless, she stated at the hearing that she fears that if she were to return to Fiji that her father may be detained again and that she could be manhandled and verbally abused by the military.  The Tribunal questioned the applicant why she believes this might be the case given there have been no further incidents with the police or military since early 2007, the surveillance has ceased and the political situation had stabilised since 2014.  The Tribunal referred to advice contained in the Department of Foreign Affairs Country Report of April 2015.  Specific paragraphs were read to the applicant including this section from the Report:

Political Opinion (Actual or Imputed)

3.70 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.

3.71 A range of decrees in place prior to the 2013 Constitution limits these rights in practice. In particular, The Public Order (Amendment) Decree 2012 permits the Commissioner of Police to prohibit or subject to such conditions as he/she sees fit any procession, meeting or assembly on the grounds of public safety or public order. Under this decree, from June 2012 onward, NGOs, political parties and others were required to seek permits to hold public meetings. At times these permits were withheld (further detail is provided below at relevant sub-sections). The implementation of this policy gradually became less strict, and by late 2014 political groups did not generally need to seek permission to hold public meetings. Police presence was however common at known political events.

3.72 Other decrees which have been used in practice to limit the freedom of expression, assembly and association include the Essential National Industries Decree 2011, Media Industry Development Decree 2010, Political Parties Decree 2013 and the Electoral Decree 2014. Each of these decrees is covered in more detail at relevant subsections, below.

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

3.74 However, 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. Examples and further information on the risks to specific groups are given below[6].

[6] DFAT Country Report, Fiji, 14 April 2015.

32.The applicant responded by saying that this report does not reflect the situation in Fiji.

33.When asked if she had been a member of the SDL/SODELPA, she responded that she had been a member since 2005.  She said she still had current membership.  When the Tribunal pursued this, she said that there were no membership fees but that the notion of being a member emanated from being active within the party.

34.The Tribunal also asked about her associations in Australia.  The applicant responded by saying she was a member of the Seventh Day Adventist Church in the Sydney suburb of [Suburb 1] which she attends every Saturday. From time to time she has attended events at the [Community Group 1].  In early December 2015, she joined the [Community Group 2], after being prompted to do so by a fellow church goer.  She said that she had attended three meetings since then.  At the meetings, they discussed how to raise the voices of people in Australia seeking protection and how to develop Fiji.

Tribunal concerns

35.The Tribunal outlined a number of concerns to the applicant and provided an opportunity for her to respond and provide further evidence in support of her claims and to clarify the concerns.

36.Firstly, the Tribunal noted that the applicant made two prior trips to Australia before she lodged her application.  Further to her earlier evidence that she is very attached to her parents and found the idea of separating from them very difficult, she added that she is the youngest in the family and that her father may go through the same thing again.  No compelling evidence was provided why her father may be detained again, aside from the fact that he is [a senior official] of [Region 1] of SODELPA.  She did not indicate that he was of high profile or of any current interest to the authorities.  SODELPA is a registered Opposition party with the largest number of Opposition Members – 15 and SODELPA’s own website states.[7]:

[7] See for example, the website of the Fijian Parliament - 15 seats won during the 2014 General Elections, SODELPA is currently a major player within the arena of governance in Fiji. Our incumbent party leader, Na Gone Marama Bale Na Rokotui Dreketi, Ro Teimumu Vuikaba Kepa, is also the Honourable Leader of the Opposition in Parliament and, along with the 14 fellow SODELPA MPs, is committed to defending and ensuring the integrity of DEMOCRACY in our beloved nation.

37.The Tribunal gives weight to the fact that the incidents involving the applicant’s father and the military/police officers took place in late 2006 and 2007 and there have been no incidents since then although the applicant has claimed they have been under surveillance until 2013.  Both the applicant’s mother and father have been able to travel to Australia on [numbers of] occasions respectively.  This indicates that they are not of interest to the Fijian authorities.

38.The Tribunal has given consideration to the fact that the applicant was reasonably young when she first came to Australia.  At the time of her first visit she was [age] years of age but by the time of her second visit she was [age].  Had she been traumatised as claimed, it would be reasonable for her to have submitted a Protection visa application at least on the second occasion.

39.Secondly, the Tribunal raised with the applicant the conflicting evidence she gave regarding membership of the SDL/SODELPA.  At her departmental interview she stated that she was not a member, which differed to her evidence at hearing.  She explained this by saying that she had been a member from 2005 – 2012.  This response did not explain why she provided conflicting evidence; however, the Tribunal does not place significant weight on this issue except to the extent that her evidence in both cases, indicates she herself is not currently politically active.

40.Thirdly, the Tribunal questioned the applicant regarding any assistance she sought regarding the claimed trauma she suffered by being verbally abused and physically man-handled when her father was detained.  She said that her father once took to a church deaconess who told her she should be strong.  She provided the same evidence at interview with the Department.  Even though she claims the events of 2006 have put a permanent scar on her emotions at no time has she sought any counselling or other assistance to assist her.

Consideration of claims

41.In summary, based on the evidence before the Tribunal, the Tribunal:

a.is satisfied that the applicant’s father has been [a senior official] of [Region 1] SDL/SODELPA party.

b.is satisfied that her father was questioned by military/police officers and that the applicant was a witness to the events that led to this.

c.is not satisfied that these events of 2006/early 2007 have put a permanent scar on the applicant’s psychological well-being.

d.is satisfied that the political situation is significantly less unpredictable then it was when the applicant left Fiji.  The Tribunal puts significant weight on advice from the DFAT Country Report (reported above) and other international sources, such as the U.S. Department of State Country Reports on Human Rights Practices for 2014 – Fiji, which states that:

“Following eight years of military rule, Fiji held general elections on September 17 in accordance with the constitution promulgated in 2013. In a contest deemed credible and “broadly reflecting the will of the Fijian people” by the Australian-led Multinational Observer Group, citizens elected 50 new parliamentarians. Josaia Voreqe (Frank) Bainimarama’s Fiji First Party won 32 of the 50 seats and he was sworn in as prime minister. Bainimarama led a bloodless coup in 2006. In 2009 his interim government abrogated the existing constitution and then ruled by decree until national elections returned the country to a constitutional republic during the year. Civilian authorities regained effective control over the security forces after the general election[8].

[8] US Department of State, Fiji 2014 Human Rights Report, 1

e.The Tribunal also has had regard to DFAT’s commentary in respect of Opposition political parties which indicates that: 

Opposition political parties

3.81 The 2013 Constitution guarantees freedom of operation for political parties. The Political Parties (Registration, Conduct, Funding and Disclosures) (Amendment) Decree 2013 and Electoral Decree 2014 provide the legislative framework for the registration and conduct of political parties. Some of the administrative processes for establishing a political party are restrictive: for example, there are harsh penalties for non-compliance, parties must gather 5,000 signatures to register and candidates can be barred from elections for any election-related offences.

3.82 In practice, a range of opposition political parties were able to contest the 2014 elections. Most representatives of opposition political parties have told DFAT that they were routinely monitored and followed by police and military during the campaign. They reported being asked for personal contact details, or to report their whereabouts. Monitoring was in some cases relatively open and cordial (for example, a polite telephone call enquiring after the subject’s movements and plans), sometimes merely annoying (for example, a vehicle parked outside the home), and sometimes intimidating (for example, overt police presence at a political gathering). Allegations were also made that the government used a range of government agencies to harass and impede opposition political parties, such as tax audits, withholding re-registration as a legal practitioner, or investigations by the Fiji Independent Commission Against Corruption (FICAC). All these claims appear credible.

3.83 Credible contacts allege that the government brought charges against opposition political party leaders, including former Prime Ministers Qarase and Chaudhry, in order to disqualify both from running in the 2014 election (according to the Constitution, individuals who are found guilty of a crime for which the maximum sentence is more than 12 months are ineligible to run as candidates ). Charges against Chaudhry relate to bringing foreign currency into the country without informing the reserve bank. Those against Qarase relate to abuse of office while he was Chairman of Fijian Holdings from 1992 to 1995. Credible legal professionals in Fiji assessed that the grounds for bringing these cases to court were weak and pointed out that more serious allegations against other people had not been prosecuted. These assessments are credible. See more information on the judicial system below at ‘State Protection’.

3.84 Overall, DFAT assesses that senior members of opposition political (i.e., those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed, including through the judicial system[9]

[9] DFAT, op.cit. p.17-18

f.The Tribunal is not satisfied that there is any reason now evident of her fears that  the expected outcome [of the 2014 election] is to overthrow Bainimarama’s party and put democracy back in place that will sentence all the participants of the recent coup in prison for life. 

g.While the Tribunal is satisfied the applicant experienced first-hand and witnessed the treatment by the soldiers the Tribunal is not satisfied that this is how she will be treated should she return to Fiji.  The Tribunal has had regard to the fact that her father is still active politically but puts significant weight on the fact that surveillance of him has ceased and that he has been able to travel out of and back into Fiji on three occasions since the incidents of 2006/2007.  Further, the SODELPA part is the leading Opposition party and while some monitoring of senior members, such as those running for political office can still occur, no evidence was provided to suggest that any member of the applicant’s family is in the position.

h.The Tribunal is not satisfied by the evidence presented by the applicant that the authorities are continuing to suppress her father’s activities nor that the military is continuing to observe every movement of the applicant’s family and constantly has them under surveillance.  This is evidenced by the fact that surveillance of applicant’s father is no longer occurring and that he has been free to travel out of and back into Fiji on three occasions since the incidents of 2006/2007.

i.The Tribunal is satisfied there is no evidence to indicate that she is will go through a similar situation as the one in 2006.  Further, although the applicant may have at one time been a SDL/SODELPA member, the Tribunal accepts the applicant’s own evidence that she has not been politically active since arriving in Australia, her very recent attendance at meetings of the [Community Group 2] notwithstanding.

42.In summary, having considered the claims individually and cumulatively, the Tribunal is not satisfied that there is a well-founded fear of the applicant being persecuted for a Convention reason as a result of her father’s political activism in the SDL/SODELPA.

43.In terms of Complementary Protection, the Tribunal having separately considered the claims both individually and cumulatively, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk the applicant will suffer significant harm due to her father’s former involvement in the SDL or current involvement in SODELPA.

CONCLUSIONS

44.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

DECISION

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

Linda Holub
Member