1417780 (Refugee)

1417780 (Refugee) [2016] AATA 3317 (12 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417780
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Linda Holub
DATE:12 February 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 February 2016 at 10:00am
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] July 2014 and the delegate refused to grant the visa [in] October 2014. According to the Department’s records, the applicant travelled to Australia on a [temporary] visa which was granted [in] March 2014. He arrived in Australia [in] April 2014.
3.    The applicant appeared before the Tribunal on 18 January 2016 via videoconference to give evidence and present arguments. As required by the applicant, the Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
RELEVANT LAW
4. 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.
5.    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).
6.    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.

7.    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’).
8.    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
9.    The issue in this case is whether the applicant has a well-founded fear of being persecuted in Fiji for reasons of his 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 he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
10. 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.
11. 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] July2014. The applicant claimed that:
a.    he left Fiji because the Fijian Government is not good at the moment as the military is running the government.
b.    as a [venue] worker, he was living in fear, because the military controls everything day and night.
c.    on one occasion while he was employed at a [venue] military personnel came to the [venue] because the [venue] breached the government imposed curfew. He was taken by the military because he was in charge of the [venue] at that time. After about 500 metres they threw him out of the car while it was still moving. He was badly hurt with both sides of his legs bruised and his knees injured. Prior to throwing him out of the car, they punched him. As a result of this incident, he sometimes experiences nightmares.
d.    he fears returning to Fiji because the military could do the same thing to him again.
e.    he also fears what happened to his brother. His brother and his brother’s wife were forced to resign from their jobs. The same thing could happen to him. “They can do something to me the military because my brother also in for the election, for [Political Party 1] also they both in court case now”.[1]
f.   he fears that his “life could be in danger because they already beat [him] and they can still do it, because “[Political Party 1]” party in Fiji I think it will win the election and “Bainimarama’s” government can make another coup”[2].
g.    the authorities cannot protect him because all the departments are led by the military and are connected together.
[1]DIBP file, folio 36.
[2].bid, folio 35.

12. The following supporting documents were provided to the Department as part of the written application:
a.    A statement of support from [a Mr A] and a [Ms A]. [3] It was established at hearing that [Mr A] is his [relative] (referred to as his brother in the written application) and [Ms A] his [relative’s] wife.
b.    A copy of the applicant’s e-ticket receipt for his flight to Australia.[4]
c.    A copy of the applicant’s Fijian Driver’s Licence.[5]
d.    Copies of employers’ references.[6]
e.    A copy of the applicant’s Police Clearance Certificate.[7]
f.   A copy of the applicant’s birth certificate.[8]
g.    Copies of the applicant’s [tertiary qualification] and the [Academic Record] from [his college in] Fiji.[9]
h.    A copy of the applicant’s curriculum vitae.[10]
i.   A copy of the front page of the applicant’s Fijian Passport.[11]
[3] Ibid,, folio 3.
[4] Ibid, folio 4.
[5] Ibid, folio 5.
[6] Ibid, folio 6-8.
[7] Ibid, folio 9.
[8] Ibid, folio 10.
[9] Ibid, folio 11-12.
[10] Ibid, folio 14.
[11] Ibid, folio 15.

13. The delegate’s decision record dated [in] October 2014 indicates that the applicant was interviewed by the delegate [in] October 2014.
14. 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.
15. On 30 October 2014 the applicant then applied for a merits review of that decision by the Tribunal. The Tribunal wrote to the applicant on 17 December 2015 advising that a hearing has been scheduled for 18 January 2016 via teleconference.
FINDINGS AND REASONS
Nationality
16. 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, the Tribunal finds that the applicant is a citizen of Fiji. The Tribunal questioned the applicant about the reference in his Curriculum Vitae that he is part [Country 1 ethnicity]. He explained that his father was [Country 1 ethnicity]. His mother became pregnant but did not have an on-going relationship with his father, nor did he know his father. He does not have any claims to [Country 1] citizenship. 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.
17. The Tribunal finds that the claims should be assessed against Fiji for the purposes of the Convention in s.36(2)(a) 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
18. The Tribunal asked the applicant why it had taken him until 2014 to leave Fiji if he lived in fear of being persecuted by the authorities. He applicant responded by saying that although the incidents occurred in 2006-07 (he was unable to be more specific), he needed time to be able to save sufficient funds to leave Fiji. He explained he worked in [venues] and did not earn a lot of money.
19. The Tribunal is concerned about the lengthy delay between the incidents referred to by the applicant and the date of his application for Protection.
20. The applicant’s written application refers to one incident which occurred when he was employed at a [venue]. At hearing, the applicant elaborated saying he was working at the [the venue] when the military officers came in and demanded to know who he was. At that time, things were very dangerous in Fiji. Because he was managing the [venue] and the [venue] had breached the curfew, the officers took him off in a four wheel drive vehicle. After about 600-700 yards they threw him out of the vehicle while it was still moving. As a result of this he was badly injured and bleeding and in a great deal of pain. Fellow workers from the [venue] assisted him back to the [venue]. He did not seek medical treatment but instead his colleagues were able to apply first aid to assist him. The applicant claims that although he went to work after that, he was on light duties only for the next two weeks.
21. At the hearing, the applicant referred to a second incident that occurred approximately a month after the first incident. On this occasion, the applicant claims he was taken to the military camp and instructed to take off his clothing and to crawl around on the ground like a snake. After that the military officers let him go. He said the whole episode lasted approximately three hours from about midnight until about 3.00am.
22. When asked why he did not refer to the second incident in his written claims, he said the first incident resulted in him being much more seriously injured and in a lot of pain and the second incident did not. The Tribunal indicated its concerns about the fact that the applicant had not included this second incident in his written claims but notes that in her Decision Record, the delegate also referred to the second incident in very similar terms to what was presented at hearing.
23. The Tribunal is satisfied that the applicant was detained and mistreated by the military police in two incidents that occurred sometime in 2006-2007 for breaching curfew conditions that were in effect at that time.
24. The applicant’s written application also states that he fears what happened to his brother will also happen to him. He and his wife were forced to resign from their jobs. At hearing, the Tribunal ascertained that the reference to the applicant’s brother was actually his [relative], [Mr A], who provided the statement of support referred to at paragraph 12a. The applicant explained [Mr A’s] [family relationship to him]. The applicant claims that his [relative] has had to resign from every position he has held. Be that as it may, the Tribunal has regard to the fact that [Mr A] is now a Member of the Fijian Parliament, representing [Political Party 1].[12]
[12] The applicant said he supported [Political Party 1] but had never voted in an election. He said he was not a member of the party but agreed with what it stood for. The only one meeting he had ever attended was a [Political Party 1] fundraising event in [Australia] to raise money for a [person] in Fiji.
26. The Tribunal is not satisfied that the circumstances of the applicant and his [relative] are in any way analogous. The applicant’s [relative] is very active politically and a member of [Political Party 1] and a current Member of Parliament are in. At no time has the applicant been active politically nor has he been targeted in the past for his political views, beliefs or activities.
27. In relation to the claim that he could be forced to resign, the Tribunal has regard to the fact that the applicant has been in Australia since [April] 2014 working in a number of different roles. Further, the circumstances of his [relative], with whom he is comparing himself to have not been hindered, as demonstrated by the fact that he is an elected Member of the Fijian Parliament. The Tribunal is satisfied that the issue of being forced to resign is no longer a consideration.
28. The written claims refer to the fact that the applicant’s fears returning to Fiji because the military could do the same thing to him again. He fears that his “life could be in danger because they already beat [him] and they can still do it, because [Political Party 1] in Fiji I think it will win the election and “Bainimarama’s” government can make another coup”[13]. The authorities cannot protect him because all the departments are led by the military and are connected together. The Tribunal asked the applicant why he thinks he might be targeted again given that the incidents that occurred happened almost eight to nine years ago in a different political environment in Fiji. The applicant said he just thinks it could happen again because of his work in [venues].
[13].DIBP, op.cit., folio 35.
29. The Tribunal discussed the fact that the political situation is significantly different now to when the alleged incidents occurred. It was also explained to the applicant that the Tribunal must have regard to the DFAT Country Report in coming to its decision and outlined some of the key points from the report.
30. In regard to the more general claim that the ‘Fijian Government is not good at the moment as the military is running the government’, the Tribunal has considered the current political situation in Fiji and is satisfied that the situation is significantly more stable than it was when the applicant was detained and assaulted by the military and even at the time he left Fiji. The Tribunal puts significant weight on advice from the DFAT Country Report 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.[14]
[14] US Department of State, Fiji 2014 Human Rights Report, DFAT’s commentary in respect of Opposition political parties indicates that:
“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 …
3.84 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”.[15]
[15] DFAT Country Report: Fiji, pp.17-18.
32. The Tribunal is satisfied as stated previously that the political situation is more stable, the election results have been accepted internationally as fair and applicant is not a senior member let alone a member of a political party or of political interest to the Fijian authorities.
33. In respect of state protection, the Tribunal has had regard to the relevant section of the DFAT Country Report, which states:
“State Protection
5.1 Fiji has had a long history of functional democratic rule. However the last 30 years have been peppered with periods of political instability – including four coups, the imposition of martial law and multiple instances of the constitution being abrogated.
5.2 The 2006 coup and subsequent interim government weakened the rule of law to some extent. The coup itself and some subsequent decisions, including the 2009 abrogation of the Constitution, were in contravention of established laws. The dismissal of the judiciary in 2009 further weakened the independence of the judiciary and the rule of law.
5.3 The quality of legislative process has diminished following the 2006 coup. All legislation between 2006 and 2014 passed by decree, with little to no opportunity for public debate or scrutiny. Additionally, under the Administration of Justice Decree 2009 and the provisions of the 2013 Constitution, decrees cannot be challenged in the courts. Despite the weaknesses in legislative process, the content of legislation by decree was frequently progressive, providing stronger state protection to minority groups than many had previously enjoyed (see ‘Refugee Convention Claims’, above, for further detail).
5.4 As of late 2014, following the elections, and as a result of the return to constitutional government, the rule of law in Fiji has generally improved in comparison to the situation prior to the elections. For most ordinary citizens, the police and military are effective and impartial. However, the ability of institutional checks and balances on government power (including the Parliament, the judiciary and the media) to actually restrain the government from taking unilateral action is limited. As set out below, the independence of the judiciary and police has diminished and this may affect state protection in certain circumstances.
Police
5.5 The Fiji Police Force (FPF) has several thousand sworn personnel, giving it a police to population ratio comparable to Australia’s. The country’s geographic spread is a challenge, with some difficulty in providing advanced police capabilities to remote islands. The ethnic make-up of the FPF roughly reflects Fiji’s broader ethnic make-up, with approximately one third of members being of Indo-Fijian descent. However, there are few senior Indo-Fijian officers with much of the senior leadership appointed from the Military. The FPF is generally assessed to be amongst the more capable police forces in the Pacific, but it is less capable than the military.
5.6 As set out above at ‘Cruel, Inhuman or Degrading Treatment or Punishment’, there have been credible allegations of police involvement in beatings and assaults. A range of credible contacts alleged that the Police Intelligence Bureau is routinely involved in monitoring and occasional harassment of opposition activists.
5.7 The FPF is generally seen to be impartial. As of late 2014, it is under effective, impartial leadership, which has resulted in an investigation into four police implicated in a death in custody case (see ‘Cruel, Inhuman or Degrading Treatment or Punishment’, above).
5.8 The FPF is significantly less influential than the RFMF within the Fijian bureaucracy. The interim Government’s major support networks were drawn from the RFMF between 2006 and 2014. In contrast, the FPF was seen as an alternative source of power and was deliberately disempowered, including by its officers being disarmed. As a result police officers do not carry arms, but can request armed back-up from military officers.
5.9 The FPF has some ability to protect individuals from societal harassment, discrimination, and violence. It is relatively accessible, though one Indo-Fijian community organisation said that the police are sometimes unresponsive.
Military
5.10 The RFMF is among the largest and most sophisticated militaries in the Pacific. Fiji is a significant contributor of troops to UN peacekeeping missions, including in the Middle East. Its military was estimated to have 3,500 personnel in 2012. This is just over one per cent of the population, which is a comparatively high ratio of military personnel to population. Ethnically, the military is overwhelmingly indigenous Fijian (probably over 90 per cent, although official figures are unavailable). It is widely considered to be a stronghold of indigenous Fijian power. However, there are also some examples of Indo-Fijians in senior positions.
5.11 Following the 2006 coup, the RFMF has played a central role in government. RFMF Commander, Josaia Bainimarama, was simultaneously Prime Minister between 2006 and 2014. Senior RFMF officers and former officers were appointed to key positions across government. Following elections in late 2014, the RFMF (and its alumni) remains the most influential organisation in Fiji’s bureaucracy.
5.12 Credible contacts report that military personnel are also involved in monitoring and occasional harassment of opposition political leaders, NGO activists, and the media. For example, several candidates for opposition political parties have told DFAT that they were regularly followed by military personnel, or that military personnel would monitor their houses.
5.13 Military involvement in apparent arbitrary arrests has continued following the election. For example, in September 2014 military officers allegedly arrested composer Josefa Bilitaki, following the latter’s dispute with FijiFirst party leaders over the unauthorised use of his music in campaign advertisements. Bilitaki and credible human rights organisations allege he was taken from his home and beaten. Fiji’s Commissioner of Police has confirmed that military personnel were involved in taking Bilitaki from his home, and said that police were investigating the incident.
5.14 A range of contacts assessed the military to be a relatively effective organisation. While it is not officially involved in the provision of law enforcement services, members of the military have played a role in certain law enforcement activities. The effects on state protection of military involvement in law enforcement activities have been complex and sometimes positive. For example, many contacts assessed that the level of violent crime (robbery, burglary, assault) in rural areas has dropped, partly as a result of the military’s involvement in law enforcement. An Indo-Fijian community organisation told DFAT the military is much more responsive to its concerns than the police. However military involvement in law enforcement may also have weakened the rule of law.
5.15 Overall, DFAT assesses that the military has some ability to protect individuals from harassment, discrimination and violence. There has however been little evidence to suggest the government is able or willing to prevent members of the military who may look to take matters into their own hands in personal or political disputes from doing so”.[16]
[16] DFAT, ibid, pp 24-25.
34. While the military still plays a significant role, the Tribunal is satisfied there is nothing to suggest that the military or the police are randomly targeting ordinary citizens to detain, harass or mistreat.
35. The Tribunal has also considered DFAT’s advice regarding more general concerns about cruel, inhuman or degrading treatment or punishment and notes that:
“4.7 The 2013 Constitution provides for the right to freedom from cruel, inhumane, degrading, or disproportionately severe treatment or punishment. The Crimes Decree 2009 establishes a specific crime of ‘Crime Against Humanity – other inhumane act’, punishable by up to 25 years’ imprisonment.
4.8 In practice, credible allegations of violent treatment of prisoners by the military have occurred in recent years. For example, in March 2013 a Youtube video emerged of a prisoner in handcuffs being assaulted by security personnel. The assailants were identifiable and have been dismissed from the police, however no criminal charges had been laid at the time of writing of this report. The interim Prime Minister stated at the time that he would “stand by” the security personnel involved. A similar event occurred in 2012, involving the alleged severe beating of five prison escapees. The frequency of such incidents has diminished in recent years”.[17]
[17] DFAT, op.cit., p.22.
36. The Tribunal is satisfied that the situation in Fiji has vastly improved since the time of the incidents experienced by the applicant and since he let Fiji and therefore there is not a real chance or a real risk of significant harm to the applicant.
37. The Tribunal explained to the applicant that while the Tribunal had not come to a decision, nothing on the evidence provided to date indicated he had a strong case for obtaining protection for either a Convention reason or in terms of the requirements for Complementary Protection. The Tribunal asked the applicant several times whether there were any reasons why he fears returning to Fiji and none were forthcoming. The Tribunal provided the applicant with an opportunity to provide any further claims by 4 February 2016. No further claims or evidence were provided to the Tribunal prior to the finalisation of the decision by the Tribunal.
38. 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 his having been previously been detained and assaulted by military officers for breaching the then military regime’s curfew.
39. 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 his having been previously been detained and assaulted by military officers for breaching the then military regime’s curfew.
CONCLUSIONS
40. 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).
41. 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).
42. 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
43. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Linda Holub
Member

[2016] AATA 3317

12 February 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction