1417633 (Refugee)

[2016] AATA 3921

1417633 (Refugee) [2016] AATA 3921 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417633

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Chris Thwaites

DATE:27 May 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 27 May 2016 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 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 the visa [in] September 2013.

3. [In] October 2014 and the delegate refused to grant the visa.

4. On 27 October 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application.

6. The applicant’s initial written reasons for claiming protection are contained in her protection visa application forms. In summary the applicant states she came to Australia to visit her girls and make a pilgrimage to a sacred place in [Country 1] with the family. The applicant states she had become alienated in Fiji without any emotional support. The political instability in Fiji and her own lack of education and strong dependency on others has made her scared to live by herself. She cannot do basic things like ordered gas for cooking or pay for amenities. The applicant states that crime in Fiji is growing and the applicant has always felt unsafe. She states that as an uneducated woman she is at a great disadvantage and is scared that no one is around to help her.

7. The applicant indicates she has experienced harm in her country and states that whilst she has not been physically harmed, given the situation, anxiety and fear grow every day. When she heard about the break-ins and the violence she feels deeply disturbed. As a woman she is heavily reliant on others and is finding it very difficult to do things for herself. She states her situation will only get worse through the country’s economic, social and political challenges.

8. The applicant states it is hard for her living in Fiji by herself. She feels cut off and there is no one to look after her. If something happens no one is there to know. The applicant states she is especially scared at night time. She feels going back to Fiji will be even more difficult and she is scared that this time she will not be able to cope as her fears for her safety will be stronger. She states it is quite common for homes to be broken into and there is violence on people as well. The applicant states a lot of Indians have left the country and it is hard to trust people. The applicant states that not being educated makes her situation very difficult.

9. The applicant states anyone can take advantage of a woman like her. She was never educated because her family was poor and worked in the fields. She is always scared that someone will try and break into the house and she will be unable to protect herself. The applicant states she has lived in Fiji her whole life, and that Fiji has changed since she was younger. The applicant states that people cannot be trusted and it is not safe to walk in the town alone, or go to places alone. The applicant states people are not even safe in their homes. People work hard and don’t get paid much. The government doesn’t do much for Indians. The applicant states people like her, who do not know English, have a very hard time. Bad things can happen to anyone, but the applicant states she is really scared for a woman all alone and dependent like her.

10. The applicant states that the government cannot make her feel safe. There are too many other problems, and this is not a priority. The applicant states that taking care of old people, even uneducated women who live alone, is not a priority for the government. No one calls her to check if she is okay.

11. The applicant later provided a written statement to the Department in relation to her background and where her siblings are currently residing. In summary the applicant states she was born in a remote village to very poor and uneducated parents. She has many siblings and they did not get the opportunity to go to school. Her parents had not been exposed to learning and did not understand the value and would not have been able to afford schooling for any of them. The home was not solidly built and hardly roomed the whole family. At a very young age the applicant and her siblings were expected to help with various duties like cooking and farming. They did not have electricity or gas or accessible water and the only mode of transport out of their village was mainly by boat. The applicant states her father died when she was fairly young and her mother died in [year]. She states that at the age of [age] she gained employment in the [Family A] household as a live in nanny. Mrs [A] had [number] young children and required help to take care of them. The applicant states it did not take long for her to become part of the family. She loved the family and as the years passed she decided she could not stand to move away from the girls and so she never married. The applicant states she has lived with [Family A] for over [number] years and never returned to her family home. In that time she found a family, daughters, access to food, medical, clothes, protection and security. While she might have started her relationship as a paid employee, she became a mother to the girls, especially when business demands took Mr and Mrs [A] away from the children.

12. The applicant states she has spent virtually all her life in the [Family A] household. Any connection she may have shared with her siblings has long been diluted and scattered as they have moved on with their own lives, particularly after the death of her mother. Since then her family has made their own way and are no longer in contact with the applicant. The applicant states that since arriving in Australia she was unaware of her family’s whereabouts. Due to her very poor socio-economic background her family lived in remote areas in Fiji and were dispersed in these areas and have limited access to necessities such as electricity, water and phone. The applicant states her family were extremely poor and lived in isolation from other family members. They were raised in a rural area where there home could only be accessed by boat. The applicant states she has had no contact with her siblings for many years and receives absolutely no support from them. She states it has been over [number] years since she joined the [[Family A]] family and took care of the [number] girls and she is very much a mother to them and cannot live without them. They have become more than a family to her and she would like to spend the rest of her life with them.

13. The applicant states that prior to moving to the [Family A] household she did not get an opportunity to connect with extended family. As a young shy inexperienced uneducated and unmarried woman she has only ever had two homes, the place where she was born, and the [Family A] household.

14. The applicant states she joined the [Family A] family at a very young age and has no recollection or contact with her extended family. Her parent’s siblings were also from a poor socio-economic background and lived great distances from them and were never in contact with them.

15. The applicant states she has had no formal or informal education, and a very poor background with no opportunities. In the [Family A] household she has become a permanent member of the family, assisting with cooking, cleaning, and taking care of all the children’s needs. When she joined the household there was a [specified ages]-year-old, all girls. The applicant had no skills when she joined the household and learned a great deal. Living with the family allowed her access to all the things she had never seen or experienced and she developed a very strong and unbroken bond with the children.

16. The applicant states she ceased being an employee a few years after she joined the family and then became a solid part of the family. They cared for her and loved her. She became a much loved aunt to the children. Mr and Mrs [A] recognised the relationship and took the applicant under their care. They clothed her, fed her and insured she had access to all the amenities required. They pay for her groceries utilities amenities and organised her doctor’s visits. The applicant relied on other people to organise ordering the gas and to check on broken appliances. She missed the family terribly when they left and felt completely lost without the family’s presence in her life.

17. The applicant states that as she was an adopted member of the family Mr and Mrs [A] and the girls supported her entirely with all necessities, food, shelter, love, and took care of her when she was unwell. The applicant states at the very start of her arrival and till now, like any other family member, she went on holidays with them overseas and within Fiji. She has travelled with them to [four specified countries] and Australia before they migrated.

18. The applicant states that before she arrived in Australia she stayed in the same house she had resided with [Family A]. They kept a provision of the house for her to live in. She lived in fear for those years she was alone and had numerous close encounters with attempted break-ins. She never ventured out on her own and fortunately at the time the [Family A] had a few friends left in Fiji and they sometimes helped by taking her to the doctor and helped her with shopping. The applicant states that as she has been in Australia for a few years now, she no longer has any contact with those people, and some have already migrated to other countries and are no longer there to assist her. The applicant states that Indians are escaping Fiji on a daily basis to other countries fearing for their safety in future. She does not believe that she will survive being alone there, as she has always been totally and fully dependent on the girls and they have somehow managed to provide support through their friends while she lived there, but it has been many years in Australia for her now. Since arriving in Australia she had tremendous security and support and cannot return to the same fear that she dwelt with in Fiji. She fears her life is in danger and of being alone and a woman.

19. The applicant states there have been numerous situations where she felt her life and dignity was threatened. She would hear on the radio that in close proximity to where she lived there were gang robberies and rapes occurring on women that were either alone or their husbands were beaten up and locked up. The applicant states she would be unable to call for police assistance as most of them are men, and she is afraid of the idea that people would soon find out that she was alone. The applicant states there were occasions when she heard a bit of noise, and would hide in the cupboard where she hoped the robbers would not find her. She sometimes spent the night in a cupboard hiding in anxiety and fear. The applicant states that for the first time in her life she felt alone, scared and really weak, being an old uneducated and simple and unmarried woman. She would hear about burglaries and even physical attacks on people in the community and neighbourhood, and would find it hard to sleep at night. She felt like a prisoner because she was scared as soon as it would turn dark. She would have no one to talk to and no one to protect her. The applicant states that she recently heard that a Fijian Indian lawyer was threatened with rape and violence because she wanted to be an independent candidate for the upcoming elections. The applicant states there is no justice in Fiji and she fears that things are becoming worse and that she cannot live in a country like that. The applicant states she was raised as a very poor girl struggling every day to survive and found it hard to come to terms with the poverty and lack of education, and [Family A] gave her hope and a new life and she lived happily with them. She states that in her last remaining years of life she does not want to be removed from them.

20. The applicant states she is single and alone, and if she let the authorities find out about her she will be harassed and bullied. She states word travels fast in a small country like Fiji. The applicant states the authorities in Fiji are corrupt and they have acted above the law, they have been known to take advantage of people in difficult situations. The applicant states that she knows that when someone complains at the police station they never listen and look down on single women and even laugh at the seriousness of the situation. The applicant fears to have to go to the police station alone and make any complaints. The applicant states they can be bribed and take part in criminal behaviour with no disciplinary action. She states she is uneducated and vulnerable and has had numerous encounters where her life and dignity was at stake. The applicant states there is no respect for single women, and that she was unmarried for personal reasons and that people find that difficult to understand.

21. The applicant states she is alone and does not have anyone, her girls would no longer be with her and have all migrated. She states she has no family ties, as they have rarely been in touch with her since she joined [Family A] [number] years ago. The applicant states to be stripped of her family, to be uneducated, to feel anxious and fearful, is not how she would like to live. She would rather not exist if a simple right of leading a happy life with people she knows is taken away from her. To spend the night in a cupboard in fear, people constantly lurking to take advantage of her as they have already done. The applicant states that she recalls that when she asked for a young boy’s help to move some things for her, he robbed her in broad daylight and left her with nothing that day. She cried all night and hoped that someone would come to help her. The police would not help her and instead took advantage of her knowing her weaknesses. The applicant states that if something worse happened that day, she doesn’t know what she would have done.

22. The written statement also includes a statement from [Family A], stating that the applicant has stayed in Australia for many years and has grown accustomed to the ways here. They coach her every day in English and little by little she is learning. They state the applicant knows Australia now and has made a few friends in the neighbourhood and she is with her family and would like to call Australia home. They state they full heartedly support her financially with all necessary amenities and accommodation and whatever she needs to lead a happy life, as they always did while they were living in Fiji. They state Fiji is a developing country steeped in political instability and a high cost of living with growing crime rates. There has been an ongoing struggle for peace, acceptance and basic rights from the Indian people in Fiji. Indians have been termed third class citizens and every so often political battles sideline this group. There are layers that require understanding and education of people so that harmonious living and relationships can be built. However the applicant is an uneducated, unmarried, simpleminded, introverted person, this is never going to be a reality. She has no hope of fighting the prejudice or casting her fears and insecurities aside to educate people on her vulnerabilities. She is a voice that will not be heard. The Fijian political and security system does not offer solace or hope that she will be protected. From a woman who has lived a secluded life, the applicant will always feel alienated. She has witnessed a great many tragedies in her life. The police can be brutal and unabashed in the treatment of people-innocent or not-and every so often the victim may not be afforded the assistance required.

23. [Family A] also state that after having lived in Australia for a few years the applicant believes she will never survive the mental stress of redefining her life should she ever have to move back to Fiji. Her fears are too strong and her advanced age does not give her the confidence or courage to rebuild a life alone, old and vulnerable. [Family A] state they do not believe she will be able to cope and this may lead to her detriment.

24. The applicant also provided copies of a number of media articles in relation to crime and theft and violence in Fiji to the Department.

25. The delegate’s decision record indicates the applicant was first interviewed [in] May 2014, and then again [in] September 2014.  The delegate accepted that the applicant had been employed by [Family A] on a long-term basis, and that she and the [Family A] women consider one another family, and she considers herself entirely dependent on them. The delegate accepted the applicant is afraid of crime including break-ins, rape and murder due to her status as an uneducated, unaccompanied woman. The delegate accepted the claims submitted by the applicant and the [Family A] women regarding Indian ethnicity relating to ongoing discrimination, and that the applicant had made statements to the effect that her Indian ethnicity has caused her general difficulties, and that the [Family A] women submitted at interview that Indian Fijians generally experienced discrimination in areas such as employment. The delegate noted the applicant had not claimed to have personally experienced physical or serious psychological harm for reasons of her ethnicity.

26. While the delegate accepted the well-documented point of racial tension and ongoing ethnic discrimination in Fiji, the delegate was not satisfied the claims raised in this matter amount to persecution. The delegate was not satisfied the applicant’s claims in relation to her ethnicity amount to serious harm. The delegate was not satisfied the harm feared was serious harm or systemic and discriminatory conduct as required by the Act and therefore the delegate was not satisfied the harm feared amounted to persecution. The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason, and therefore was not satisfied the applicant’s fear was well founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention, and was not satisfied the applicant met the criteria in s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there was a real risk the applicant would suffer significant harm. The delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa) of the Act, and therefore refused to grant the applicant a protection visa.

27. As noted above, on 27 October 2014 the applicant applied to the Tribunal for review of that decision.

28. On 1 March 2016 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.

29. On 20 April 2016 the applicant’s representative advised the Tribunal the applicant will not be attending the hearing and that they had received instructions to request the decision be made on the papers.

1. The representative also provided a statutory declaration from the applicant dated 19 April 2016. In summary the applicant declares that she was born in Fiji in [year] and is a citizen of Fiji. She had many siblings, and her parents were very poor and uneducated and could not afford schooling family of them. Her father was always very ill and when she reached the age of [age] the applicant was pulled into household chores and subsistence farming. The applicant declares that when she was approximately [age] years old she moved to Suva where she gained employment as a live in nanny for [Family A] with [number] girls. She was taken under the wing of [Family A] when there was nowhere for her to go and her mother could not continue to support her.

2. The applicant declares that her father died when she was fairly young and she has had very limited contact with her family until her mother passed away in [year]. Since her mother died she has had no contact with her siblings and is not aware of her family’s whereabouts. She declares that any contact or connection she may have shared with her siblings has long been diluted and scattered as they have also moved on with their own lives, particularly after the death of their mother.

3. The applicant declares that she has spent virtually all her life in the [Family A] household. It has been over [number] years since she joined the family and took care of the girls and she is very much a mother to them all. She ceased being an employee a few years after she joined the family and became a solid part of the family. She declares that she was an adopted member of the family; Mr and Mrs [A] and their [number] girls supported her entirely, providing food, and shelter and took care of her. The applicant declares from the start of her arrival in their home, like any other family member, she went on holidays with them, both overseas and within Fiji. The applicant has travelled with them to [four specified countries] and Australia.

4. The applicant declares she has never attended any formal education and therefore is very illiterate. She had no skills when she joined the household and learnt a great deal. She has depended on [Family A] totally until they migrated to Australia, and also in Australia from the date she arrived.

5. The applicant declares she first arrived in Australia [in] August 2011, holding a [temporary] visa. [In] November 2011 she lodged an application for a [different temporary] visa which was refused on the grounds that she was onshore. The exceptional reasons that she gave for the grant of the visa were not accepted. The applicant declares she applied to the Migration Review Tribunal [in] February 2012 for review, and that Tribunal affirmed the decision.

6. The applicant declares that [in] September 2013 she applied for a protection visa because she could not go back to Fiji. She feared for her safety in Fiji as a single woman without any male protection, unsupported and uneducated. The applicant declares she has no family, relatives, or friends, to support her in Fiji and no place to live.

7. The applicant declares that she fears going back to Fiji as she has never been married, and has no children or relatives in Fiji who could help her. She has no place to live and no savings or income to be able to survive.

8. The applicant declares that she strongly believes that her life would be in real danger if she were to return to Fiji. The applicant declares that because of her nature as a weak and uneducated simple woman she would not know how to live independently. She says there is no guarantee that she would be able to survive on her own and all alone. She would hear about burglaries, rape and physical attacks on Indian Fijians in the community and in the neighbourhood, and would find it difficult to sleep at night. She would feel like a prisoner because she would be scared as soon as it would turn dark. She would have no one to talk to, no one to protect her.

9. The applicant declares she is a strong Hindu and an Indian and that as a woman living alone without male protection, there is a real risk she may be subject to harassment and even rape. The applicant declares that rape and violence in Fiji is well recorded and there is no guarantee that she’ll be safe in Fiji.

10. The applicant declares that she is extremely afraid of crime, especially as she has already experienced that fear when her house was looted by a young Fijian man who came to help her. The applicant declares there have been numerous situations where she felt that her life and dignity was threatened. She would hear on a radio that in close proximity to where she lived there was gang robberies and rapes occurring on women that were either alone or their husbands were beaten up and locked up. The applicant declares there is no safe place for an Indian woman like her with no one to care for her.

11. The applicant declares that the history of tension between the indigenous and Indian Fijian’s is very significant and there is a real chance that she may be subject to harassment by the indigenous Fijian community who is forever targeting Indian Fijian’s.

12. The applicant declares that for more than [number] years she has been totally dependent on [Family A] and now, if she were to return to Fiji, she will be devastated. She declares that since arriving in Australia she has had tremendous security and support from [Family A] and states she cannot return to the same anxiety and fear that she dwelt in.

13. The applicant declares she is genuinely afraid of being raped and mistreated because she does not have anyone to protect her or to help her and no place to live.

14. The applicant declares that the government has not taken any steps to secure the safety of Indian Fijians living in Fiji. She declares that most people are looking for ways to migrate to other countries to secure their lives. The applicant declares Indians are escaping from Fiji on a daily basis to other countries fearing for their safety in future.

15. The applicant declares the Fijian authorities will never protect her, wherever she goes the majority is the Fijian community and they are powerful.

16. The applicant declares she would not be able to call police for assistance, as most of them are men, and she would be afraid of people finding out that she was living alone.

17. The applicant declares that after living in Australia for a few years and assimilating into the Australian way of life, she would not be able to survive the mental stress of resettling in Fiji with no one to support or guide her. The applicant declares that after arriving in Australia she has actively engaged in Hindu religious activities, and is a member of [a Hindu] Organisation, and together with [Family A] she attends temple on a weekly basis and takes part in all the charity projects, including food distribution to homeless people, and Christmas hampers to disadvantaged families. The applicant declares she has enjoyed taking part in all this charity work and religious activities which has kept her going.

18. The applicant declares that if she goes back to Fiji she will lose all that and will suffer tremendously missing all the activities. The applicant declares that in Fiji she will not have the freedom to go to the Hindu temple all by herself and there will be no one to take her. She declares that her age, losing touch with her religion will cause her severe damage mentally and emotionally. She will not see any purpose in her life. The applicant also declares she is currently taking medication for [her medical conditions] and her family takes her for all her medical visits and various tests. She declares that in Fiji she will not have the medical facilities and will not have anyone to accompany her to the doctors or buy her the medication and remind her to take the medication on time. The applicant declares she will suffer an untimely death without proper medication taken on time. The applicant declares it will be most unfair and inhuman for an old lady like her to be sent to a country where there is no support whatsoever, and a country which is well known for violence, rape and mistreatment of lonely women.

19. The applicant declares that she would be devastated to lose her family with whom she has been for a period of [number] years, and her life will end in total misery, causing her Australian family severe pain of mind. She declares that already they are feeling extremely helpless and guilty that they are unable to continue to keep her and take care of her. They are hurt and disappointed that after all these years, at an age where she is going to need their help the most, they have left her without any protection. The applicant declares it would no doubt cause severe pain of mind and irrecoverable damage.

20. On 22 April 2016 a Tribunal officer contacted the representative who clarified that the applicant did not wish to appear before the Tribunal and had decided to decline the invitation to attend the hearing, and that the applicant consented to the Tribunal deciding the review without her attending a hearing. This matter has therefore been determined on the evidence available to the Tribunal.

    RELEVANT LAW

21. 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

22. 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).

23. 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.

24. 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.

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

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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

32. 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’).

33. ‘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.

34. 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

35. 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.

    FINDINGS AND REASONS

    Nationality

36. On the basis of the applicant’s consistent information provided to the Department and Tribunal about her place of birth and citizenship of Fiji, as well as the copy of her Fijian passport she provided to the Department, the Tribunal finds that the applicant is a national of Fiji.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Fiji.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Fiji, the Tribunal also finds that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Refugee Convention criteria: s.36(2)(a)

37. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

38. The Tribunal notes the information provided by the applicant in relation to her background and her fears of returning to Fiji have remained relatively consistent, and the Tribunal accepts the applicant began working for [Family A] at a young age and is considered a member of that family and has had little or no contact with her siblings after her mother died in [year]. While the Tribunal accepts the applicant fears returning to Fiji, the Tribunal also notes the Department of Foreign Affairs and Trade (DFAT) Country Report on Fiji, published 14 April 2015, assesses that Indo-Fijians face a low level of official discrimination on the basis of their race/nationality, and that Hindus in Fiji face a low level of official and social discrimination on the basis of their religion.

39. The Tribunal notes the DFAT report indicates the crime rates in Fiji are moderate, and that rates of petty theft, robbery and murder are higher than in Australia, but are consistent with regional averages, and the increase crime rates in recent years are most likely a result of youth unemployment and internal relocation to the cities.

40. The Tribunal accepts the applicant’s claims that she has had no formal education and is illiterate, and has never married, and has no children and is not in contact with any of her biological family.

41. The Tribunal notes that in her written statement, the applicant stated that before she arrived in Australia she stayed in the same house she had resided with [Family A], and that they kept a provision of the house for her to live in, and that the few [Family A] family friends left in Fiji sometimes helped her with taking her to the doctors and with the shopping. The Tribunal notes the applicant states that for more than [number] years she has been totally dependant on the [Family A] and continues to be so in Australia. While the Tribunal notes the delegate’s decision record indicates the [Family A] family members indicated during the interview that it had become more difficult to organise family friends in Fiji to assist the applicant, on the information before it, the Tribunal is not satisfied [Family A] would abandon the applicant and not provide for her shelter, or that they would not financially support her or that she would be unable to subsist or survive or access health care, if she returned to Fiji.

1. The Tribunal notes that the applicant claimed in her written statement that she recalled being robbed by a young boy in broad daylight, and that she declared that her house was looted by a young Fijian man in her statutory declaration. The Tribunal is concerned that this incident was not mentioned in the visa application forms, which asks questions about reasons for claiming protection and previous harm. The Tribunal is also concerned about the vagueness of the details provided about this incident, including when it occurred and whether the applicant sought help from the police. On the information provided it is unclear if the applicant asked for help from the police or was scared and reluctant to ask for help. On the information before it, the Tribunal is not satisfied the applicant was robbed by a young boy or that her house was looted while she was living in Fiji.

2. While the Tribunal accepts the applicant was scared and heard noises at night, on the information before it, it is not satisfied people were constantly lurking to take advantage or harm the applicant.

3. As noted above, it is unclear if the applicant asked for help from the police or was scared and reluctant to ask for help due to a belief she would be taken advantage of. On the information before it the Tribunal is not satisfied the applicant was refused assistance from the police, or that she was taken advantage of by the police in Fiji.

4. After considering the country information referred to above and the information provided by the applicant about her life and particular situation in Fiji, the Tribunal accepts the applicant is a single, older, uneducated and illiterate unaccompanied ethnic Indian Fijian woman who practices the Hindu religion. Nevertheless, on the information before it, the Tribunal is not satisfied there is a real chance the applicant will have her house broken into, or that she will be robbed or raped, or murdered, or unable to subsist or survive or access medical care, or practice her religion, or obtain assistance or protection from the police. While the Tribunal accepts that returning to Fiji will be challenging, on the information before it, the Tribunal is not satisfied those challenges amount to serious harm, and the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm, now or in the reasonably foreseeable future if she returned to Fiji.

5. On the information before it the Tribunal is not satisfied the applicant has a well-founded fear of persecution.

6. Having considered the applicant’s claims individually and cumulatively, 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).

   Complementary protection: s.36(2)(aa)

7. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa). This criterion is met if there are 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.

8. The Tribunal accepts the applicant’s claims that she has had no formal education and is illiterate, and has never married, and has no children and is not in contact with any of her biological family.

9. For the reasons given above the Tribunal is not satisfied [Family A] would abandon the applicant and not provide for her shelter, or that they would not financially support her or that she would be unable to subsist or survive or access health care or practice her religion, if she returned to Fiji. The Tribunal is not satisfied the applicant was robbed by a young boy or that her house was looted while she was living in Fiji. While the Tribunal accepts the applicant was scared and heard noises at night, on the information before it, it is not satisfied people were constantly lurking to take advantage or harm the applicant. As noted above, it is unclear if the applicant asked for help from the police or was scared and reluctant to ask for help due to a belief she would be taken advantage of. On the information before it the Tribunal is not satisfied the applicant was refused assistance from the police, or that she was taken advantage of by the police in Fiji.

10. After considering the country information referred to above and the information provided by the applicant about her life and particular situation in Fiji, the Tribunal accepts the applicant is a single, older, uneducated and illiterate unaccompanied ethnic Indian Fijian woman who practices the Hindu religion. Nevertheless, on the information before it, the Tribunal is not satisfied there is a real risk the applicant will have her house broken into, or that she will be robbed or raped, or murdered, or unable to subsist or survive or access medical care, or practice her religion, or obtain assistance or protection from the police. While the Tribunal accepts that returning to Fiji will be challenging, on the information before it, the Tribunal is not satisfied those challenges amount to significant harm, and the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if returned to Fiji.

11. On the information before it, the Tribunal is not satisfied 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 subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if she is returned to Fiji.

12. Having considered the claims individually and cumulatively, for the reasons noted above, the Tribunal 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, there is a real risk she will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

    CONCLUSION

13. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

14. 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

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

    Chris Thwaites
    Member  27 May 2016