1417806 (Refugee)

[2016] AATA 3654

1417806 (Refugee) [2016] AATA 3654 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417806

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Rachel Homan

DATE:30 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 March 2016 at 10:37am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of Fiji, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] September 2014. The applicant previously applied for a protection visa on the basis that she met the definition of a refugee [in] March 2010. That application was refused [in] July 2010.

3. The applicant appeared before the Tribunal on 26 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.

4. The issues in this case are whether the Tribunal is satisfied that the applicant is owed protection obligations as a refugee; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ) held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Following SZGIZ, the Tribunal’s approach has been to consider only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

8. The Federal Circuit Court in SZVCH v MIBP & Anor [2015] FCCA 2950 (SZVCH) held that the effect of s.48A and the judgment in SZGIZ is that in circumstances such as those arising in the present case, a further protection visa application can only be validly made on the basis of the complementary protection criterion, and there is in general no obligation on either the Minister or the Tribunal to consider the refugee criterion.  The Minister and the Tribunal are not, however, prevented from considering the refugee criterion where a valid visa application has been made on the basis of the complementary protection criterion.

9. The judgment in SZVCH was considered and not followed in SZQTJ v MIBP [2015] FCCA 3226. The approach taken in SZVCH has also been rejected by the Federal Court in AMA15 v MIBP [2015] FCA 1424 (Markovic J, 15 December 2015) at [48]. However, as there remains a level of judicial uncertainty on this issue, the Tribunal has considered it appropriate to consider the applicant’s claims against both s.36(2)(a) and s.36(2)(aa).

10. 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).

11. 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.

12. 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’).

13. 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.

    Visa application

14. According to information provided in her visa application forms, the applicant is a [age]old Fijian national, born in Suva. The applicant identified as belonging to the Fijian ethnic group and Seventh-day Adventist religion. The applicant stated that she had never been married. The applicant provided details of [siblings] residing in Fiji and one [sibling] residing in Australia.

15. The applicant stated that she was seeking protection in Australia so that she did not have to go back to Fiji. The applicant stated that she left Fiji because her [sibling] in Australia was hospitalised with a life-threatening illness. The applicant took this as an opportunity to depart Fiji where she had been living in a constant state of fear as a result of the regime’s policies and where her freedoms and liberties were restricted.

16. The applicant said she was unable to express her political opinion in Fiji owing to a fear of the consequences. The applicant stated that she held a political opinion against the illegal government. The applicant claimed that open discussions or disagreement with the government was not allowed that it was common knowledge that those who engaged in such activities would be preyed upon by the military and taken to army compounds to be physically abused. The applicant claimed that [Relative 1] and friends were subjected to physical beatings for attending gatherings and expressing political opinions in opposition to the regime. The applicant stated that supporters of the army existed within society and targeted non-supporters, informed on them to the army and are influenced by corruption. The applicant feared that if forced to return to Fiji, she would suffer mentally and eventually be forced to express her political opinion, which would likely result in her detention, assault and persecution.

17. The applicant also stated that she feared being targeted because of her relationship to other known opponents of the regime including her [siblings] and [Relative 2] who was a [Occupation 1] in Fiji. After expressing his political opinion to the public he was beaten, arrested and subjected to assaults, acts of violence and persecution by the regime. This person now resides permanently in Australia having been granted a protection visa.

18. The applicant stated that whilst in Fiji in around 2008, she had planned to attend a protest meeting in her village with villagers to voice their opinion against the regime. The applicant chose not to attend a last minute due to her fear of the consequences. The applicant’s [Relative 1] and other family and friends attended the meeting where they were ambushed by military officials, beaten and bashed. The applicant witnessed first-hand the injuries and claimed that she had lived in a constant state of fear that she may one day be subject to the same abuses.

19. The applicant stated that she feared harm at the hands of the police, government officials and military officials. The applicant stated that decrees were in existence which provided authorities with extensive powers and protections and a new constitution was being proposed which would give the military and other authorities immunity for their actions. The applicant expressed the belief that there was no remedy or protection available to her if the regime chose to target her.

20. The applicant also stated generally that there was limited employment, harsh living conditions and restricted freedoms and liberties in Fiji.

21. Submitted with her visa application was a certified copy of the applicant’s Fijian passport which shows previous travel to Australia between July 2009 and October 2009. The applicant returned to Australia [in] February 2010 as the holder of a [temporary] visa. Also submitted were items of country information from Amnesty International, the US Department of State, the UK Foreign and Commonwealth Office, the United Nations and various media outlets; a certified copy of a statutory declaration made by [Mr A] [in] February 2011, regarding an assault by soldiers of the Fiji military forces at the [location] in Suva in December 2010; and written submission prepared by the applicant’s representative.

22. The representative’s submission contains information about the political and human rights situation in Fiji. The submission states that the applicant feared being subjected to persecution due to her support for anti-regime bodies engaged in Australia and because she has remained in Australia for an extended period unlawfully. The submission expresses the view that the applicant opposed the regime but could not express her political opinions or protest against the regime for fear of violence and persecution. It was claimed that the applicant’s views stemmed from the regime’s behaviour and the experiences of her family members, including a [sibling]’s [Relative 2] who was a [Occupation 1] in Fiji and who was arrested and subjected to assaults after making comments about the regime.

    Previous protection visa application

23. Contained on the Department’s file is the decision record pertaining to the applicant’s 2010 protection visa application. According to that decision record, the applicant claimed that her [sibling] sponsored her to visit Australia to provide assistance to [sibling] as a [Occupation 2]. The applicant was a professional [Occupation 2]. It was difficult to secure employment in Fiji since the military government came to power and her [sibling] in Australia had previously supported her financially. The applicant’s [sibling] persuaded her to remain in Australia because of the Fiji situation. In Fiji, the applicant had been a [Occupation 2] to a civil servant who was involved in political activity. The applicant was scared when military personnel visited her employer’s home and questioned her as to her employer’s whereabouts.

    Protection visa interview

24. The applicant attended an interview with an officer of the Department and the Tribunal has listened to a recording of that interview. At the interview, the applicant stated that she first travelled to Australia in 2009 because her [sibling] had recently undergone an operation for [medical condition]. The applicant stated that she acted as a [Occupation 2] for her [sibling] for about 1 ½ months until [sibling] became well. The applicant had previously been the [Occupation 2] for her parents, a retired [profession] who was her [relative], an [Relative 3] who was a retired [Occupation 3] and [Relative 1] who had been a patient in a [certain agency] The applicant stated that each of these persons was related to her and she did not receive formal remuneration for her work. The applicant stated that she received some money which she used to support herself financially from [Relative 1]’s parents who resided in Australia.

25. The applicant gave evidence that she decided to remain in Australia and apply for protection following her 2010 visit owing to an incident where her [sibling]  (now deceased) was beaten. Her [sibling] attended a gathering or meeting shortly after the coup in December 2006. The military suspected that the gathering was a protest against them. The applicant’s [sibling] and the other people attending the gathering were handcuffed and taken to the [location]. The applicant and some other people got on a bus and followed them to the [location], where they looked over the fence and saw the group being beaten. The applicant’s [sibling]  was [injured] and hospitalised. The applicant claimed that some of the military families in the applicant’s village had warned her to be careful because of what happened to her [sibling].

26. The applicant was asked about the employer engaged in political activities referred to in her first protection visa application. The applicant stated that this was her [Relative 3], the retired [Occupation 3]. The applicant stated that [Relative 3] had now passed away. [Relative 3] had been involved in a women’s rights organisation after her retirement and was also a [Occupation 1].

27. The applicant stated that her [Relative 2], [Mr C], was also involved in [Occupation 1] for [ an agency ] and later travelled to Australia and was granted protection after he was tortured in a military camp.

28. The applicant gave evidence that she had recently been attending [Group 1] in Australia. The applicant stated that she had been given a membership card but the [Group 1]  was not affiliated to any political group or party. The [Group 1]  helped people to lodge their paperwork with the Department of Immigration and encouraged them not to stay illegally.

29. The applicant stated that she had enrolled to vote in the upcoming 2014 election but had not decided how she would vote.

    Review application

30. At the time she applied for review, the applicant submitted to the Tribunal copy of the delegate’s decision record.

31. Prior to the hearing, the Tribunal received a further written submission from the applicant’s representative, news articles relating to the treatment of persons accused of sedition or plotting to overthrow the Bainimarama government and the current DFAT Country Report on Fiji.

    Tribunal hearing

32. At the Tribunal hearing, the applicant told the Tribunal that she did not wish to return to Fiji because of the ill treatment she and her [siblings] had received in Fiji.

33. The applicant described an incident which occurred on a Sunday, in which she and her [sibling] had lit a fire. It was prohibited to work on Sundays but as they were Seventh-day Adventists, and Saturday was their day of rest, the applicant and her [sibling] had been working. Some soldiers came and took their tools. The applicant and her [sibling] ran off into the forest to hide. The applicant could not recall when the incident had occurred but estimated that it was in 2009 or 2010 or before her first visit to Australia. The applicant said she had not been charged with any offence but said the soldiers always visited them on Sundays.

34. The applicant also described an incident in which her [sibling] [Mr B] had been beaten by police. The applicant told the Tribunal that [Mr B] was with a group of men when he was caught by some police and soldiers who took him to a police mobile station. [Mr B] was beaten brutally. The applicant stated that her [sibling] had been detained for a few days before being told to go home. As a consequence of the beatings, [Mr B] had to use a [equipment]. The applicant estimated that this incident had occurred in 2009. The Tribunal noted that it had formed the impression from the applicant’s evidence to the Department that this incident occurred not long after the 2006 coup. The applicant said it was her recollection that it had happened in 2009.  The applicant explained that her [sibling] had been gathered with a group of men and at the time public gatherings were prohibited. The Tribunal asked whether there had been any political element to the gathering. The applicant said she was not sure whether it was a political meeting or just a social gathering but the rules at the time prohibited any sort of gathering.

35. The applicant also described an incident involving her [Relative 2] [Mr C] who was a [Occupation 1] in Fiji. He was detained and beaten after making [political comments] The applicant said he had simply been [activity] but the soldiers did not like what he was saying. He was taken to a camp and punished severely. This person had now left Fiji and had been granted protection in Australia.

36. The Tribunal noted that the applicant had previously claimed to have been questioned by military officers about her employer. The applicant stated that the person in question had been her [Relative 3] and she had passed away last year. This lady was a [Occupation 3] and [official] of a women’s rights group. Some soldiers came to her house one day while she was out and questioned the applicant about her. The applicant stated that other women in the group were taken to a military camp for voicing their opinions about the military regime. The applicant stated that [Relative 3] had not been taken to the camp and had no further problems with the military. The applicant stated that the officers had asked the applicant whether [Relative 3] had held meetings in her home. The applicant had denied this.

37. The Tribunal asked the applicant about the protest meeting in 2008 mentioned in her visa application. The applicant responded that this was the same incident involving [Mr B] she had described earlier. The Tribunal noted that the applicant had earlier said she was unsure whether there was any political element to the meeting. The applicant confirmed that she did not know what was discussed at the meeting as she was home with her other [sibling].

38. The Tribunal asked the applicant about the statutory declaration by [Mr A]. The applicant said she did not know [Mr A] or why the document had been submitted. The applicant’s representative stated that he was not aware of any personal connection between the applicant and [Mr A] but suggested that it had been submitted as an example of the ill treatment of civilians by the military in Fiji.

39. The Tribunal noted that the applicant had described a number of incidents which had caused her to fear for her safety in the past and enquired whether these incidents caused her to fear for her safety now if she were to return to Fiji. The applicant responded that she was not really afraid to go back to Fiji but questioned whether those in power in Fiji had changed. The Tribunal noted that, apart from the incident where the applicant had lit a fire on a Sunday, it did not appear that the applicant had personally been harmed or targeted by the military. The applicant responded that if she and her [sibling] had been caught that day they would have been harmed. The applicant agreed, however, that apart from being told not to light fires on Sundays she had not personally had any particular difficulties.

1. The Tribunal put to the applicant that because it did not appear that the harm suffered by her relatives at the hands of the military had led to her being harmed in the past, the Tribunal questioned whether there was a real chance or risk of her suffering harm for this reason now. The applicant told the Tribunal that she did not think she would be questioned or approached now because her [sibling] had passed away, as had [Relative 3].

2. The Tribunal noted that the applicant had claimed to hold a political opinion opposed to the Bainimarama government in her application and asked her to elaborate on her opinions.  The applicant responded that Bainimarama continued to be in power. The applicant said she was unsure whether the laws he had introduced remained in force and were being used to dictate or whether they had changed those laws to better the nation.

3. The Tribunal asked the applicant whether she had been involved in any political activities in Australia. The applicant stated that she had been involved with [Group 1]. The Tribunal noted that the applicant’s evidence to the Department had indicated that this organisation was primarily involved in assisting Fijians in Australia to regularise their immigration status and asked whether the organisation was at all political. The applicant said she had mentioned [Group 1] to the departmental officer when she was asked whether she had been involved with any political organisations but she did not think the [Group 1] was politically involved.

4. The Tribunal asked the applicant whether she had ever expressed her opinions publicly in any way. The applicant responded that as a Christian, it was her belief that she should not get involved in politics. The applicant said she had not been involved in any political activities in Australia or Fiji. The Tribunal noted that her representative’s submission had referred to her being involved with anti-regime bodies in Australia and asked the applicant whether she thought this statement was accurate. The applicant said she thought the statement was accurate. Asked to elaborate, the applicant said the [Group 1] was anti-regime. The Tribunal noted that the applicant’s description of the [Group 1]  did not suggest it was ‘anti-regime’ in the sense of being politically active and making public statements against the Bainimarama government. The applicant responded that she had been told the [Group 1]  was there to help Fijians apply for protection visas in Australia. The applicant said she was not an office bearer or leader of the [Group 1]  but was simply an ordinary member.

5. The Tribunal asked the applicant whether she had any fears relating to her religion if she were to go back to Fiji. The applicant responded that she hadn’t heard of any changes, for example, she hadn’t heard of the ban on work on Sunday being lifted.

6. The Tribunal noted that the applicant’s application had also raised a concern about the general economic and living conditions in Fiji. The applicant said it had been her observation that things had been going well until Cyclone Winston. There were a lot of struggles in Fiji as a consequence of the cyclone. The Tribunal noted that the applicant still had [siblings] living in Fiji and asked whether she had any news since the cyclone. The applicant indicated that her village had been badly damaged. The applicant said she did not feel like going back to Fiji and it would take her some time to adjust to the idea and have any desire to return.

7. The Tribunal discussed the country information set out below with the applicant. The Tribunal noted that the restrictions on freedom of association and assembly which had caused difficulties for the applicant’s relatives in the past appeared to have been lifted. The Tribunal also noted that the country information suggested that ordinary Fijians were able to express their political opinions privately and it was only high profile opponents of the government who appeared to still be at risk of harm. The applicant responded that she was not aware of any changes being implemented and did not trust the Prime Minister. The applicant said she was not sure whether there were any positive changes for the benefit of the Fijian people.

8. The Tribunal also noted that, although the current situation in Fiji was somewhat uncertain following the cyclone, the information about the general living and economic conditions did not suggest that the applicant would face a real chance or risk of serious or significant harm. The applicant agreed that this was not the main reason for not wishing to return to Fiji but noted that some of her relatives had been injured in the cyclone.

9. The Tribunal further noted that the country information did not suggest that any ordinary member of the Seventh-day Adventist Church would face a real chance or risk of serious harm, although high profile members engaged in public statements opposing the government might. The applicant responded that politics were not acceptable in her church but later on it was possible that her church could be targeted by soldiers if members of her church decided to publicly oppose the government.

10. The applicant’s representative made brief oral submissions noting the country information set out in their most recent written submissions pertaining to the present situation in Fiji following the 2014 election. It was submitted that the country information suggested that the situation was not necessarily as portrayed in the DFAT report.

    Additional country information

    2014 elections and general economic and security situation

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

    [1] >

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

    Freedom of speech and political opinion

    [3]

12. The Freedom in the World 2015 – Fiji[4] report, confirms that the interim government imposed severe restrictions on freedom of assembly and association, but states that these were gradually relaxed in the two years leading up to the general election. Police permits were still required for public gatherings and protests, but there were no reports of denials or last minute orders to cancel events in 2014, as opposed to previous years.  

    [4]

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

14. The DFAT Country Report for Fiji[5] provides the following advice with regard to persons known or perceived to hold anti-government political opinions in Fiji:

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

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

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

15. According to an advice prepared for the Refugee Review Tribunal by DFAT on 26 June 2013[6], DFAT was not aware of reports of ordinary individuals who were 'known' to be opposed to the regime being subject to harm unless they had also publicly expressed opposition to or criticised the regime. Nor was DFAT aware of any ordinary or past members of Fiji political parties being subjected to harm unless they were also high-profile politicians or vocal opponents of the regime.  With regard to prominent opponents of the Bainimarama regime, the advice states:

    We are aware of a number of cases where prominent individuals who are (or are seen as) regime opponents have been subjected to harm by the regime. This is particularly so if they have publicly expressed criticisms of the regime.

    Such individuals would most likely be subject to monitoring and intimidatory threats. A number have also been charged with offences by the regime, often under the 'Public Emergency Regulations/Public Order Amendment Decree' or subject to politically-motivated investigations by the Fiji Commission Against Corruption (FICAC) as a form of harassment. These are likely to continue in the process for Political Parties to register as Political Executives and Board Members financial records have been published for public scrutiny. Individuals targeted in this way include politicians, chiefs, Methodist church leaders, journalists, and human rights activists. As a result of such charges, individuals have also been subject to some restrictions on their travel, however health related travel by these individuals has been allowed.

    For the most part the regime is targeting potential political opposition through manufacturing “legitimate” means of intimidation and harassment through its political parties decree which requires the financial position of all candidates and their children to be published. We suspect the regime will use this information to pursue corruption or ‘unexplained wealth’ charges against potential political leaders.

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

16. With regard to persons who have engaged in anti-regime protests in Australia, the advice states:

    …ordinary Fijians participating in anti-regime protest activities outside of Fiji could potentially be subject to harm upon returning to Fiji, although generally only high profile activists were targeted by the regime. DFAT was aware of some cases where human rights activists had been threatened by the regime after participating in high profile activities where views critical of the regime were expressed.

17. The DFAT advice also suggested that people who have come to the attention of the authorities and been subjected to various forms of punishment in the past were also at risk of future harm:

    This category of people is at a reasonable risk of harm on their return to Fiji. Individuals who have been identified in the past by the regime as opponents or critics would generally be closely monitored by the regime. Such individuals would be well known to the regime, particularly if they have suffered punishment in the past. We have heard of ongoing harassment of individuals whilst they are abroad from those in the regime threatening them should they return to Fiji.

    We are aware of a number of cases where individuals in this category have been subject to monitoring and intimidatory threats, and where they have also been charged with offences by the regime, often under the 'Public Emergency Regulations/Public Order Amendment Decree'. As a result of such charges, individuals have also been subject to restrictions on their travel.

18. Family members of those in each of the above categories were said to face a similar, but generally lower, threat of harm.

19. The DFAT advice indicates that there were no known cases of unsuccessful protection visa applicants or persons returning from periods abroad being targeted by the regime, unless they fell into the categories of persons described above.

    Seventh-day Adventists

20. The DFAT Country Report states that Fiji is religiously diverse. The 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion. The Constitution provides specifically for protection from religious discrimination and religious freedom is observed in practice.[7]

    [7] DFAT Country Report - Fiji, April 2015, 3.35

21. The Adventist church is one of Fiji’s leading denominations – there are some 25,000 adherents to the Adventist church in Fiji.  Fiji also functions as the headquarters for the Adventist church’s Trans Pacific Union and provides religious ministry to various island countries in the South Pacific.[8] 

    [8] Steele, Allen 2006, ‘Fiji: Church Appeals for Peace Following Military Coup’, Adventist News Network, 8 December – Accessed 18 June 2009 <Attachment>

22. In 2006, the Seventh-day Adventist Church criticised the leaders of the December coup when military commander Frank Bainimarama overthrew the democratically elected government.[9]

    [9] Steele, Allen 2006, ‘Fiji: Church Appeals for Peace Following Military Coup’, Adventist News Network, 8 December – Accessed 18 June 2009 <Attachment>

23. Advice provided by the Australian Department of Foreign Affairs and Trade states that an ordinary member of the Adventist church would not be at risk of adverse treatment, whereas a prominent person who opposes or is perceived to oppose the government is likely to be adversely treated.[10]

    [10] Department of Foreign Affairs and Trade 2010, DFAT Report No. 1167 – Fiji: MRT/RRT Information Request: FJI36727, 6 July <Attachment>

24. The Fiji Times reported that when the general conference president of the Seventh-day Adventist church – its world leader – travelled to Fiji in February 2011 and visited Commodore Bainimarama, he thanked him for providing religious liberty throughout Fiji:

    Mr Wilson visited Commodore Bainimarama during his brief visit to Fiji last week. He was accompanied by local church president Pastor Waisea Vuniwa.
    A church statement said Commodore Bainimarama was pleased to have the scriptures read and explained to him.
    Mr Wilson recommended the counsel found in the Book of Micah 6:8 and urged him to rule justly, love mercy and to walk humbly with God.
    "The primary concern of the Government is to serve and look after the people," Commodore Bainimarama said.
    "The counsel from God's Bible is wise and I have listened to it."
    The statement said the two leaders prayed together.
    Mr Wilson also thanked the prime minister for providing religious liberty throughout Fiji.
    

    [11] Burese, I. 2011, ‘Call to rule justly’, Fiji Times, 10 February - – Accessed 15 September 2011 <Attachment>

    "It is a basic human right to allow all people the freedom to worship," said Mr Wilson who also visited President Ratu Epeli Nailatikau.[11]

    Findings

25. The Tribunal found the oral evidence given by the applicant at hearing to be credible. In contrast, the written submissions provided to the Department, appear to somewhat overstate aspects of her claims. Having considered the evidence as a whole, the Tribunal is satisfied that relatives and acquaintances of the applicant, including her [sibling] and [Relative 2] [Mr C], have in the past experienced mistreatment at the hands of the military regime which took power following the 2006 coup. The Tribunal accepts that these incidents have, in the past, caused the applicant to feel some concern about her own safety or well-being in Fiji and accepts that these incidents contributed to the applicant’s decision to remain in Australia and seek protection following her arrival in 2010. The Tribunal further accepts that these incidents have caused the applicant to feel some trepidation about returning to Fiji now.

26. The applicant acknowledged at hearing, however, that she did not really fear returning to Fiji now. The applicant agreed that, leaving aside the incident where she and her [sibling] had been told not to work on Sundays and had their tools confiscated, the applicant had not personally suffered any mistreatment or harm by the military regime whilst she was in Fiji. The applicant’s evidence did not indicate that the incidents involving her relatives had caused her to be imputed with any political opinion. The applicant agreed that she had not publicly expressed any political opinion in the past in Fiji or involved herself in any type of political activity whilst in that country. Indeed, the applicant’s evidence was that engaging in political activity would run contrary to her religious beliefs.

27. The Tribunal is not satisfied that the applicant’s own conduct or the conduct of her relatives, including her [sibling], [Relative 2] [Mr C], and [Relative 3], caused the applicant to be imputed with a political opinion opposed to the Bainimarama regime whilst she remained in Fiji. The encounters these relatives had with the military regime were, according to the evidence at hearing, not necessarily the result of the public expression of opposition to the regime but, in the case of the applicant’s [sibling] and [Relative 3], contravention of the restrictions on public gatherings and association in place at the time. In the case of the applicant’s [Relative 2], the applicant told the Tribunal that he was harmed after simply [conducting his duties]

28. On the basis of the country information referred to above, the Tribunal finds that the environment for political expression has improved and restrictions on public assembly and association have been lifted. As noted by the applicant at hearing, her [sibling] and [Relative 3] have now passed away and her [Relative 2] is now in Australia. The applicant herself expressed the view that she was not likely to be harmed by the Fijian government now as a result of these past associations. In these circumstances, the Tribunal is not satisfied that there is a real chance or risk that these past events or associations would lead to the applicant being imputed with an adverse political opinion or suffering serious or significant harm were she to return to Fiji now.

29. The Tribunal accepts that these past events caused the applicant to become dissatisfied with the Bainimarama regime. The Tribunal also accepts that the applicant continues to have serious misgivings about the Bainimarama government following the 2014 elections. The Tribunal is not satisfied, however, that the applicant has given public expression to her political opinions either in Australia or in Fiji. The Tribunal is also not satisfied that the applicant would or would have any desire to give public expression to her opinions were she to return to Fiji now or in the reasonably foreseeable future. The Tribunal makes this finding on the basis of the applicant’s past conduct and her evidence that public involvement in political activity would run contrary to her religious beliefs.

1. The Tribunal accepts that since her arrival in Australia, the applicant has had some involvement, as an ordinary member, with an organisation called [Group 1]. The Tribunal does not accept that this organisation is involved in any political activity, including public opposition to the Bainimarama government, but accepts that it provides assistance to Fijians in Australia wishing to lodge protection visa applications. To the extent that [Group 1] could be perceived as political on the grounds that it provides assistance to those seeking protection from the Fijian authorities, the Tribunal is not satisfied that the applicant’s membership of the [Group 1]  would lead to a real chance or risk of the applicant suffering serious or significant harm in Fiji. The country information contained in the DFAT report, which the Tribunal considers to be credible and relevant, indicates that those involved in public expression of opposition to the Fijian government in Australia could be at risk of harm upon return to Fiji. The Tribunal is not satisfied, however, that the applicant meets this profile.

2. The Tribunal accepts that the applicant has remained in Australia for an extended period. The Tribunal further accepts that the applicant’s applications for protection in Australia could become known if she were to return to Fiji. Having regard to the DFAT Report referred to above, the Tribunal is not satisfied that the facts of the applicant’s presence in Australia and applications for protection, give rise to a real chance or risk of the applicant suffering serious or significant harm upon return to Fiji, in the absence of any political profile.

3. The Tribunal is not satisfied on the country information before it that there is a real chance or risk of the applicant suffering harm amounting to serious or significant harm upon return to Fiji for reasons of her religion. The Tribunal is satisfied that the applicant would be free to practice her religion. The applicant expressed uncertainty as to whether the laws or decrees prohibiting work on Sunday, which had caused her difficulty in the past remained in effect. The Tribunal has no country information before it in relation to this issue. Even if such laws were still in effect, the Tribunal is not satisfied that they would cause the applicant to suffer economic hardship or other suffering amounting to serious or significant harm.

4. The Tribunal accepts that the general living and economic conditions in Fiji are less favourable than those available to the applicant in Australia. The Tribunal further accepts that conditions are likely to have deteriorated in the immediate aftermath of Cyclone Winston. The Tribunal is satisfied on the applicant’s evidence, however, that the applicant has a number of siblings still residing in Fiji, from whom she could derive financial and other support. The applicant has previously received financial support from her relatives and her work as a [Occupation 2]. The evidence before the Tribunal does not suggest that the applicant would cease to have access to the same resources were she to return to Fiji now. The Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious harm, or significant harm as defined, on this basis.

5. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The applicant does not satisfy the criterion set out in s.36(2)(a).

6. The Tribunal further finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. 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

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

   Rachel Homan
   Member