1419919 (REFUGEE)

[2015] AATA 3335

1419919 (REFUGEE) [2015] AATA 3335 (25 AUGUST 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419919

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Linda Symons

DATE:25 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2015 at 5:08pm

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, first arrived in Australia [in] May 2005 as the holder of a Visitor visa. She departed Australia [in] June 2006. She returned to Australia [in] July 2006 as the holder of a Visitor visa and departed [in] January 2007. She returned to Australia [in] October 2007 as the holder of a Visitor visa and departed [in] April 2008. She returned to Australia [in] October 2009 as the holder of a Visitor visa and departed [in] January 2010. She returned to Australia [in] November 2010 as the holder of a Visitor visa and departed [in] February 2011. She returned to Australia [in] May 2011 as the holder of a Visitor visa and departed [in] July 2011. She returned to Australia [in] February 2012 as the holder of a Visitor visa and has remained in Australia since then. [In] May 2012, she was granted a Bridging visa in association with her application for a Protection visa.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] May 2012 and the Department refused to grant the visa [in] September 2012. She applied to the Tribunal on 28 September 2012 for a review of that decision. On 18 March 2013, the Tribunal (differently constituted) affirmed the decision made by the Department.

4. [In] April 2013, the applicant lodged an application for judicial review with the Federal Magistrates Court of Australia (as it was then called). [In] November 2014, the Federal Circuit Court of Australia remitted the application to the Tribunal for reconsideration.

5. The applicant appeared before the Tribunal on 9 March 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

7. The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.

   RELEVANT LAW

8. 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

9. 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).

   Complementary protection criterion

10. 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’).

    Section 499 Ministerial Direction

11. 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 AND FINDINGS

    Evidence provided to the Department

12. The applicant’s claims in her visa application are summarised as follows:

    ·She left Fiji because she could not live there safely and does not wish to return to Fiji because her life is in danger there.

    ·Her husband died [in] October 2011. After his death her situation became unsafe. At night Fijian people would knock on her door and throw stones at her windows. They knew she was an Indian woman living alone without any male protection. She was not able to go out alone as she was scared of being hurt.

    ·[In] December 2011, her home was broken into and damaged. She went into town and when she returned her home had been broken into and everything taken. She suspected that the thieves were neighbourhood Fijian boys. The Police came to her house and she told them who she suspected. The Police told her they would conduct some investigations and get back to her. They never did. Her situation became worse after that. Sometimes at night rocks and stones were thrown at her house. On one occasion they lit fire to her clothes which were hanging on the clothes line and on another occasion there was a dead rat.

    ·One day she was returning from the shops when a Fijian boy, who was drunk, started shouting at her. He was waving his fists and said “this country is not for you”. She quickly returned home. She was shaking and fainted. She could not sleep the whole night.

    ·[In] December 2011, six Fijian boys gathered near her house and started drinking. They were shouting, screaming and saying something about Indians. She went to a neighbour’s house and they sent her to the home of a relative for the night.

    ·[One day in] February 2012, at about 1.00am her windows were broken and two men wearing hoods entered her house. One of them ransacked her house and the other pushed her against the wall. He had a rod which he pushed against her back and told her to stop shouting or he would kill her. Their body shapes showed that they were native Fijians.

    ·One of the men said “you Kaindia, why don’t you people go home to India.” The other man started pulling her clothes while the second man pushed her against the wall. She tried to free herself, fell down and fainted. When she woke up there was no light. The power had been cut. She left Fiji [in] February 2012 and came to Australia at the suggestion of her daughter and son who live in Australia.

    ·If she returns to Fiji she fears being subjected to the same harm from native Fijians particularly young boys who are “criminally minded” and young native Fijians who dislike Indians. She is an easy target being an Indian woman living alone without male protection.

    ·Because of a long history of racism in Fiji the Police will not protect her.

13. The applicant provided the Department with copies of her Fijian passport, her Birth Certificate, her children’s Birth Certificates, her Marriage Certificate and her husband’s Death Certificate which indicates that his date of death was [in] October 2011.

14. The applicant was interview by the Department [in] August 2012. During the interview she re-iterated and expanded on her claims. Some of the evidence she gave was inconsistent with her written claims. These inconsistencies are discussed further below.

    Evidence provided to the first Tribunal

15. The applicant provided to the Tribunal a copy of the Department’s Decision Record dated [in] September 2012, an article from The Fiji Times dated 11 July 2012 and titled ‘Village headman wants Narayan to apologise’, an article from the One India News dated 18 February 2009 titled ‘Fiji police chief calls Indian officers backstabbers and liars in latest racist rant’ and an undated article from the Samoa Observer titled ‘Fiji Police Commissioner’s comments deemed racist’.

16. The applicant attended a hearing before the previous Tribunal on 5 March 2013. During the hearing, she expanded on her written claims. This is discussed further below.  

    Evidence provided to this Tribunal

17. On 2 March 2015, the Tribunal received written submissions from the applicant’s migration agent in which he re-iterated the applicant’s claims and referred to racism in Fiji, failure of State protection and relocation.

18. On 9 March 2015, the applicant’s migration agent provided the Tribunal with the following country information:

    ·Fiji: Whether Indo-Fijian women have been targeted by ethnic Fijian men since the May 2000 coup; State protection available for Indo-fijian women (May 2000 – January 2001), Immigration and Refugee Board of Canada, 16 January 2001. ( of ethnic conflicts past haunt Fiji vote, Starbroek News, 16 September 2014. ( Fijian may win Indian votes in Fiji election, Starbroek News, 15 September 2014. ( Hindus Need to Know – Fiji Indians – Trapped in the Gulag of the Pacific Rakesh Krishnan Simha August 2011. (>

    Following the hearing, the Tribunal provided the applicant with further time to lodge additional evidence. On 13 March 2015, the Tribunal received written submissions from the applicant’s migration agent which are discussed below.

    Does Australia have protection obligations to the applicant under the Refugees Convention?

19. The Tribunal finds that the applicant is a citizen of Fiji based on her passport, a copy of which is before the Tribunal, and will assess her claims on this basis. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than her country of nationality.

20. The applicant gave evidence to the Tribunal that her migration agent prepared her visa application on her instructions and that her instructions were true and correct. She stated that she is satisfied that her visa application is accurate and complete.

21. The Tribunal discussed her claims with the applicant during the hearing. The Tribunal found some aspects of her evidence to be generic and vague. There were inconsistencies in her evidence and she made new claims during the course of the hearing. These issues raise concerns for the Tribunal in relation to her credibility and the veracity of her claims. The Tribunal’s concerns are noted below.

22. In her visa application, the applicant claimed that her husband died [in] October 2011 and that after his death her situation became unsafe. She made no mention in her visa application that she was the victim of a home invasion in 2000 despite her evidence to the Tribunal that her visa application was accurate and complete. She was interviewed by the Department [in] August 2012. During that interview, she claimed for the first time that she was the victim of a home invasion in 2000 while her husband was still alive. This raises issues in relation to her claim that she was targeted because she was an Indian woman living alone without any male protection. When this information was put to the applicant, pursuant to s.424AA of the Act, she responded that in 2000 there was a “big commotion”. She stated that there was a revolt and Fijians were living in their houses and snatching their land in 2000. She stated that there was no law and order. This response does not address the issue raised by the Tribunal.

23. In post hearing submissions dated 13 March 2015, the applicant’s migration agent agreed that the incident in 2000 was not as a result of the applicant being targeted as a single Indian woman but submitted that it was as a result of her being targeted because of her race and religion.

24. The applicant’s failure to mention that she was the victim of a home invasion in 2000 in her visa application is of concern for the Tribunal. It raises the issue of whether she omitted this important information from her visa application because it did not support her claim of being targeted because she was an Indian woman living alone without any male protection.

25. During the course of the hearing, the applicant made a claim for the first time that she was raped during the home invasion in 2000. She did not make this claim in her visa application despite her evidence to the Tribunal that her visa application was accurate and complete. She did not make this claim before the delegate from the Department who interviewed her [in] August 2012. She did not make this claim before the Tribunal Member she previously appeared before on 5 March 2013.

26. When this information was put to the applicant, pursuant to s.424AA of the Act, she responded that she said they did something to her but did not mention the word rape because Indians do not mention the word rape as it is a word of shame. She stated that after she started living in Australia she realised that people are more open about these things and when she opened up and spoke these words people understood her. She stated that in Fiji they have been taught not to use these words and do not speak like that.

27. The Tribunal received post hearing submissions dated 13 March 2015 from the applicant’s migration agent. In his submissions, he referred to paragraph 50 of the first Tribunal’s Decision Record which states “…She said in 2000 they pulled her dress off and she was scared they would do it again ……” He also referred to the transcript of the first Tribunal hearing at page 15, lines 29 – 35 (transcript not provided)  as follows:

    And my husband did go to police and register the report. And they were asking him,   “what they – what these Fijian people have been doing with your wife?” and they   asked my husband “that when the Fijian were holding or touching your wife or   holding her, how were you feeling?” and the Fijian people even came and they were               inside our house and we seeked help from the police And the police came and they              joined in with those people and they made fun of us. (sic)

28. The applicant’s migration agent submitted that the applicant has given evidence before of Fijians holding her, touching her and pulling her dress off. He submitted that there was a controversy at the Federal Circuit Court as to whether the perpetrators were intending to rape her or not. He submitted that the applicant realised that if she said things indirectly as her culture demands she is going to be misunderstood so she wanted to be clear this time. He submitted that the applicant’s use of the word “rape” did not mean “penetration” and he does not think that in the current legal terminology “rape” needs that requirement. He submitted that the applicant was entitled to describe her dress being taken off and being held and touched as “rape”.

29. The Tribunal does not accept this submission. During the hearing, the Tribunal sort to clarify with the applicant exactly what her claims were in relation to what happened in 2000. She initially stated that in 2000 some people tried to rape her. She stated that the Police attended her house and her husband told the Police that “my wife was being raped”.  She stated that the Police asked her husband how he felt when his wife was being raped and made fun of them. She stated that Fijians stayed at her house and raped her. She stated that her husband was there at the time. She stated that she and her husband subsequently left their house. The Tribunal asked her if she was raped in 2011 and she answered no. She stated that she knew that was their intention because they pulled her clothes.

30. Towards the end of the hearing, the applicant made further new claims to the effect that in 2000 she was raped and beaten. She stated that in 2000 she told the Police she was raped but they did not help her.

31. The applicant’s evidence to the Tribunal changed from some people trying to rape her in 2000 to actually being raped in 2000 to being raped and beaten in 2000. She made a new claim, that she had not previously made, to the effect that she told the Police in 2000 that she was raped and they did not help her. Her evidence also changed from that given at the first Tribunal hearing to that given at the second Tribunal hearing. In his submission, the applicant’s migration agent stated that during the first Tribunal hearing the applicant gave evidence that when she and her husband reported the home invasion in 2000 to the Police, they asked her husband how he felt when the Fijians were holding or touching his wife. Her evidence to this Tribunal was that the Police asked her husband how he felt when his wife was being raped.

32. In post hearing submissions, the applicant’s migration agent submitted to the Tribunal that the applicant’s use of the word “rape” did not mean “penetration” and he thinks that in the current legal terminology “rape” does not have that requirement. The Tribunal rejects this submission. The applicant is not a lawyer and the Tribunal does not expect her to be aware of the legal definition of “rape” in criminal law. However, the Tribunal expects her to use the word “rape” in the context in which it is used in ordinary everyday language. The Oxford English Dictionary defines ‘rape’ as “1.take by force, 2.commit rape on (woman); hence rapist, 3. (poet) carrying off by force and 4.forcible or fraudulent sexual intercourse especially imposed on woman”. This definition indicates that the word ‘rape’ is used in the context of forcible sexual intercourse and therefore has elements of force and intercourse. The Tribunal does not accept that the applicant used the word “rape” without meaning penetration or intercourse.

33. The applicant was represented by a migration agent throughout the process of her application for a Protection visa and she should have been aware of the nature of her visa application, the importance of providing the reasons why she feared returning to Fiji and the importance of providing accurate and complete information to the Department and the Tribunal. The Tribunal finds her failure to mention being raped during the home invasion in 2000 and her failure to mention that she told the Police in 2000 that she was raped and they did not help her until 9 March 2015 to be significant.

34. The applicant gave evidence to the Tribunal that in Fiji she did not mention the word ‘rape’ because Indians do not mention the word ‘rape’ as it is a word of shame. This is inconsistent with her evidence to the Tribunal that she told the Police in Fiji that she was raped during the home invasion in 2000 and they did not help her. This in turn is inconsistent with her failure to mention that she was raped during the home invasion in 2000 in her visa application. The Tribunal accepts that it may not be appropriate to discuss matters of a sexual nature in the applicant’s culture and that she may have been embarrassed or have difficulty speaking about being raped. However, the Tribunal is not satisfied that this explains her failure to make the claim of having been raped during the home invasion in 2000 until 9 March 2015 particularly as she claims that her subsequent fears are based on this event. The Tribunal does not accept that the applicant’s evidence at the first Tribunal hearing that she was held, touched and her dress was pulled off was indirect evidence of being raped.

1. In view of the applicant’s migration agent’s submission that the applicant realised that if she said things indirectly, as her culture demands, she was going to be misunderstood so she wanted to be clear this time, the Tribunal expects the applicant to have been careful and accurate in the evidence she gave this Tribunal. This submission is not consistent with the evidence given by the applicant in relation to some of her claims. The inconsistencies in her evidence to this Tribunal in relation to being raped in 2000 and the inconsistency between her evidence to the first and second Tribunals in relation to what the Police said to her husband when he reported the home invasion in 2000 to them, raise concerns for the Tribunal in relation to her credibility. These issues and her failure to make the claims that she was raped during the home invasion in 2000 and that she told the Police in 2000 that she was raped and they did not help until 9 March 2015 raise concerns in relation to the credibility of her claims.     

2. In her visa application, the applicant claimed that her husband died [in] October 2011 and after his death her situation became unsafe. She claimed that at night Fijian people would knock on her door and throw stones at her windows. She claimed that they knew she was an Indian woman living alone without any male protection. The Tribunal asked her about these claims. She stated that on two occasions someone knocked on her door and ran away. She stated that she could not see who it was but understood that they were Fijians. When asked about her claim that stones were thrown at her windows, she stated that sometimes they were thrown at her door and sometimes at her windows. She stated that this happened on three or four occasions. She stated that she did not see who did this. She stated that she did not report these incidents to the Police.

3. In her visa application, the applicant claimed that thereafter she was not able to go out alone as she was scared of being hurt. However, she then claimed that [in] December 2011 she went into town and when she returned home her home had been broken into, damaged and everything taken. The Tribunal discussed these claims with the applicant during the hearing. She stated that all her things were stolen. When asked whether she returned to an empty house, she responded that her furniture was still there and her clothes were still there. She stated that her jewellery and valuables were taken. When asked what damage was done to her house, her answer was non responsive.

4. The applicant gave evidence that she reported the break in to the Police and that they went to her house, checked everything and took fingerprints. She stated that they asked her if she suspected anyone and she told them that her house is near the main road, there is another road near her house that Fijians walk down and it could have been a Fijian but she could not say who robbed her. She stated that they told her that if they identify the fingerprints they would let her know. She stated that three or four days later she went to the Police Station to inquire about the progress of their investigation. She stated that they asked her to have a seat and they would check. She stated that she waited a long time but they did not get back to her so she left. She stated that she did not thereafter return to the Police Station or telephone them to inquire on the progress of their investigation. The applicant has not provided the Department or the Tribunal with any evidence from the Police in relation to her reporting this break in to them.

5. In her visa application, the applicant claimed that her situation became worse after this incident. She provided details of subsequent incidents. The Tribunal asked her about these incidents and found her evidence in relation to these incidents to be vague, inconsistent and implausible. For instance, in her visa application she claimed that on one occasion there was a dead rat. She gave evidence to the Tribunal that on two occasions she found dead rats and it “came in my mind that someone did that”. In her visa application, she claimed that at night Fijian people would knock on her door. She gave evidence to the Tribunal that Fijian boys knocked on her door on two occasions. She then gave evidence that she did not see who knocked on her door but “understood” they were Fijians. She subsequently gave evidence that Fijian boys knocked on her door and she saw them run away.

6. In her visa application, the applicant claimed that at night Fijian people would throw stones at her windows. She gave evidence to the Tribunal that on three or four occasions stones were thrown at her door and at her windows at night. She stated that she did not see who did it. However, she subsequently gave evidence that Fijian boys threw stones and she saw them run away. In her visa application, the applicant claimed that she was not able to go out alone as she was scared of being hurt. However, she also claimed that when she was returning from the shops, on one occasion, a drunk Fijian boy shouted at her, waved his fists and said "this country is not for you". She claimed that she hurried home, was shaking, fainted and could not sleep the whole night. The Tribunal finds it implausible that this incident would have caused the applicant to faint or not sleep the whole night.

7. In her visa application, the applicant claimed that, on one occasion, Fijian boys set fire to her clothes that were hanging on the clothes line. She gave evidence to the Tribunal that after the robbery when she dried her clothes “they” would burn them. When asked who she was referring to, she responded that she did not see anyone do it but thinks they were Fijian boys. These inconsistencies in the applicant’s evidence raise concerns for the Tribunal in relation to the credibility of these claimed incidents. The Tribunal is of the view that the applicant fabricated these incidents for the purpose of enhancing her claims for protection.  

8. There were further inconsistencies in the applicant’s account to the Tribunal of what happened during the home invasion [in] February 2012 with her previous claims in relation to this incident. For instance, in her visa application she claimed that during the home invasion [in] February 2012 one of the men told her to stop shouting or he would kill her. She also claimed that one of the men said “you Kaindia, why don’t you people go home to India.” In her evidence to the Tribunal she stated that the men were speaking in Fijian and she could not understand what they were saying.

9. The applicant gave evidence to the Tribunal that the intruders [in] February 2012 pulled her clothes and she knew it was their intention to rape her. When asked why two Fijian men would not have been able to overpower her and rape her if that was their intention, she responded that they were holding her and pressing her, pushed her and she fell and fainted. In her visa application, she also claimed to come home and faint when a Fijian boy who was drunk shouted at her when she was returning home from the shops. There is no medical evidence before the Tribunal to indicate that the applicant is prone to fainting. The Tribunal finds her claims in relation to fainting to be implausible and far-fetched.

10. The applicant gave evidence to the Tribunal that she did not report the home invasion [in] February 2012 to the Police. When asked why she did not, she stated that in 2000 some people tried to rape her, her husband reported it to the Police and the Police made fun of them. She then stated that she was raped in 2000. She subsequently stated that when her husband was with her the Police made fun of them. She stated that she thought the Police would ask her questions if she reported the incident, she did not know how she could face that and due to shame she did not go to the Police. This is inconsistent with her evidence that she went to the Police and reported the break in [in] December 2011.

11. In post hearing submissions, the applicant’s migration agent stated that the applicant’s experience with the Police in 2000, her experience after reporting to the Police in 2011 reinforced her view that the Police will not help and the Police is not sympathetic to her. He submitted that there was no utility in going to the Police in her view, she appears to have thought the only way was to leave Fiji, having spoken to her son, so going to the Police would only have held her back. In her evidence to the Tribunal, the applicant did not claim that she did not report the home invasion [in] February 2012 to the Police because of her experiences with them in 2011. Her evidence to the Tribunal was that she did not report the incident [in] February 2012 to the Police because of her experience with them in 2000 and because she did not know how she could face answering questions and was ashamed to go to the Police.

12. The applicant came to Australia [in] February 2012 as the holder of a Visitor visa which was valid until [May] 2012. She lodged her application for a Protection visa [in] May 2012 shortly before the expiry of her Visitor visa. This delay in lodging her application for a Protection visa and the fact that she waited until shortly before her Visitor visa expired to do so is of concern for the Tribunal. When the Tribunal raised this as an issue with the applicant, she responded that she was not able to get an airline ticket to Sydney [in] February 2012 but was able to get an airline ticket to Melbourne on that date. She stated that her son travelled to Melbourne and picked her up. She stated that she was unwell and could not sleep at night. She stated that she told her son that if she returned to Fiji she would die and that she would not return to Fiji. She stated that her son told her he would try and find something and found her a lawyer.

13. In post hearing submissions, the applicant’s migration agent submitted that there was no delay in applying for protection because the applicant lodged an application for a Protection visa before her Visitor visa expired and while she was under the protection of Australia. He submitted that the word “delay” connotes not doing something before a dead line, there is no statutory requirement for applying for protection within a particular period, the applicant applied in time and this is an irrelevant consideration. He also made submissions in relation to the 45 day time limit for lodging visa applications for the entitlement to work rights. The Tribunal rejects this latter submission as it is not relevant to the issue raised by the Tribunal.

14. The Tribunal accepts the submission that there is no statutory requirement for applying for protection within a particular period. The Tribunal does not accept the submission that the applicant was under the protection of Australia when she applied for a Protection visa. The Oxford English Dictionary defines “delay” as “1. Postpone, defer, make late, hinder, operating after an interval of time; 2. loiter, be late, wait; 3. act or process of delaying, hindrance, time lost by inaction or inability to proceed.” In view of these definitions, the Tribunal does not accept the submission that “delay” connotes not doing something before a dead line.

15. The Tribunal rejects the submission that the applicant’s delay of approximately three months after her arrival in Australia to lodge her application for a Protection visa is an irrelevant consideration. In Subramaniam, Anandaraj v MIMA [1998] FCA 305 the Federal Court held that:

    ….the period of time which elapses between an applicant’s arrival in Australia and   the time when he or she claims refugee status is a legitimate matter to take into   account when assessing the genuineness or at least the depth of an applicant's fear                of persecution. I would go further and find that such a delay is a legitimate matter             which the Tribunal is entitled to take into account when deciding whether to believe   an applicant.

    ….In my view, it was open to the Tribunal to draw an adverse inference in this matter                   from the fact that the applicant was claiming on the one hand to have suffered such   terrible treatment at the hands of the authorities in Sri Lanka, but, on the other hand,   leaving it to virtually the last minute before applying for refugee status.        

16. The applicant’s evidence to the Tribunal is that she came to Australia because she was frightened. The applicant has provided the Department with a copy of her passport which indicates that she has travelled to Australia on Visitor visas on six occasions prior to her last trip to Australia in 2012. She has also travelled to the USA. The applicant should therefore be fully aware that Visitor visas are temporary visas and that she was required to return to Fiji before her Visitor visa expired. The Tribunal is of the view that if she was frightened about returning to Fiji she would have taken steps to obtain immigration advice and lodge an application for a Protection visa as soon as possible after her arrival in Australia.

17. The applicant claimed that after her arrival in Australia she was unwell and could not sleep. She has not provided the Tribunal with any medical evidence in relation to this claim. She gave evidence to the Tribunal that she has a daughter and a son who live in Australia and are permanent residents of Australia. She gave evidence that they have been supporting her financially and she stayed with them after her arrival in Australia. She therefore had family support and financial support in Australia. In view of her six prior visits to Australia between 2005 and 2011 she had had previous exposure to Australia’s culture, language and system of transport. In these circumstances, the applicant’s delay in lodging her application for a Protection visa until a few days prior to the expiration of her Visitor visa is an issue for the Tribunal.

    Country information

18. The Tribunal has considered the Country Information Report on Fiji prepared by the Department of Foreign Affairs and Trade (DFAT) dated 14 April 2015 and other country information. The DFAT Country Information Report on Fiji indicates the following:

    State protection

    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

    …….. The ethnic make-up of the Fiji Police Force (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.

    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.

    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).[1]

    [1] DFAT County Information Report on Fiji, 14 April 2015.

19. The Tribunal has also considered the country information provided by the applicant’s migration agent to the Tribunal. The articles from the One India News dated 18 February 2009 titled ‘Fiji police chief calls Indian officers backstabbers and liars in latest racist rant’ and an undated article from the Samoa Observer titled ‘Fiji Police Commissioner’s comments deemed racist’ refer to comments made by the then Fiji Police Commissioner. This information is considerably out of date. The country information indicates that the current Fiji Police Commissioner, Bernadus Groenewald, is of South African origin[2] and that he has been on a mission to transform Fiji’s constabulary[3].   

    [2] New Fiji Police Commissioner Arrives This Week, Pacific Islands Report, 11 May 2014. ( Fiji Police Commissioner foils Suva restaurant robbery, Radio Australia, Australian Broadcasting Corporation, 22 May 2015. (>

    The article from The Fiji Times dated 11 July 2012 and titled ‘Village headman wants Narayan to apologise’ relates to a dispute between a landowner in the village of Nasilai and other villagers over the robbery of crops by villagers, the owner reporting them to the Police instead of resolving it at the community level and the villagers closing a track to the landowners’ family. This article has limited relevance to the claims made by the applicant and the Tribunal places limited weight on it.   

20. The Tribunal has had regard to the research from the Immigration and Refugee Board of Canada titled Fiji: Whether Indo-Fijian women have been targeted by ethnic Fijian men since the May 2000 coup; State protection available for Indo-fijian women. The Tribunal notes that this research is dated 16 January 2001 and places some weight on it in its historical context. The Tribunal has had regard to the two articles in the Starbroek News dated 15 September 2014 and 16 September 2014. Since these articles were published, Fiji has had democratic elections and a democratic government has been elected.[4] The Tribunal has had regard to the post hearing submissions made by the applicant’s migration agent in relation to these articles and places some weight on these articles. The Tribunal has had regard to the article by Rakesh Krishnan Simha dated August 2011. It has limited relevance to the applicant’s claims and the Tribunal places limited weight on it.

    Findings

    [4] DFAT County Information Report on Fiji, 14 April 2015.

21. Having considered all the applicant's claims, the evidence, country information and the submissions made by the applicant's migration agent, the Tribunal is of the view that the applicant is not a witness of truth. The Tribunal found some aspects of her evidence to be inconsistent and other aspects of her evidence to be implausible and unconvincing. The Tribunal is of the view that she fabricated her material claims for the purpose of obtaining a Protection visa. The Tribunal finds that the applicant is not a credible witness.

22. The Tribunal accepts that during the coup and its aftermath in 2000, the applicant and her husband were victims of a home invasion. The Tribunal accepts that during the home invasion the applicant was held by one or more of the intruders and treated roughly. The Tribunal does not accept that her dress was pulled off or, alternatively, that the intruders tried to rape her or, alternatively, that she was in fact raped or, alternatively, that she was raped and beaten. It follows that the Tribunal does not accept that the applicant’s husband reported to the Police that the intruders tried to rape the applicant or in fact raped her and the Police asked him how he felt about it. The Tribunal accepts that the applicant and her husband reported the home invasion to the Police and were not satisfied with the Police’s response. The Tribunal accepts that the home invasion in 2000 led to the applicant and her husband relocating to Lautoka.

1. The Tribunal accepts that the applicant’s husband passed away [in] October 2011. The Tribunal does not accept that the applicant’s situation became unsafe thereafter. The Tribunal does not accept that after her husband’s death Fijian people would knock on her door and throw stones at her windows at night because they knew she was an Indian woman living alone without any male protection. The Tribunal does not accept that she was not able to go out alone as she was scared of being hurt.

2. The Tribunal does not accept that [in] December 2011 the applicant’s home was broken into when she was out at the shops and her jewellery stolen or, alternatively, everything in her house was taken.  It follows that the Tribunal does not accept any of the applicant’s claims that flow from this. It follows that the Tribunal does not accept that the applicant’s situation became worse thereafter. The Tribunal does not accept that rocks and stones were thrown at her house or that her clothes that were hanging on the clothes line were set on fire. The Tribunal does not accept that the applicant found a dead rat or, alternatively, that she found two dead rats. The Tribunal does not accept that a Fijian boy who was drunk shouted at her, waved his fists at her and said “this country is not for you”. It follows that the Tribunal does not accept that she thereafter got home quickly, was shaking, fainted and could not sleep the whole night.

3. The Tribunal does not accept that on 30 December 2011 six Fijian boys gathered near the applicant’s house, started drinking, shouting, screaming and saying something about Indians. It follows that the Tribunal does not accept that she went to a neighbour’s house and they sent her to the home of a relative for the night. The Tribunal does not accept that the applicant was the victim of a home invasion [in] February 2012. It follows that the Tribunal does not accept any of her claims that flow from that.

4. The Tribunal has considered the motivation for the home invasion that the applicant and her husband were victims of in 2000. The DFAT Country Information Report on Fiji indicates that in general Indo-Fijians and indigenous Fijians co-exist amicably. It indicates that:

   In certain geographic areas (particularly Suva), relations between the two ethnic   groups have been difficult at times of political tension. Political power has been a key                 driver of division between the two communities. For example, riots followed the 2000   coup (in which Fiji's first Indo-Fijian Prime Minister was deposed). Indo-Fijian   merchants in Suva were targeted with violence and vandalism. The 2000 riots were             generally assessed to be the exception to the norm.[5]

   [5] DFAT Country Information Report on Fiji, 14 April 2015.

5. In view of this country information, the Tribunal accepts that home invasion that the applicant and her husband were victims of in 2000 may have been racially motivated. The Tribunal has considered the applicant’s claim that because of a long history of racism in Fiji the Police will not protect her. The Tribunal has also considered the post hearing submissions made by her migration agent in relation to the Police in Fiji and in relation to whether Mr Bainimarama’s commitment to deal with racism is shared by those below him.

6. The country information indicates that the current Fiji Police Commissioner, Bernadus Groenewald, was appointed in May 2014[6] and that he has been on a mission to transform Fiji’s constabulary[7]. It indicates that the Fiji Police Force is under effective and impartial leadership.[8] It indicates that as of late 2014, for most ordinary citizens, the Police and military are effective and impartial.[9] This tends to indicate that the effectiveness and impartiality of the Police has improved since the applicant’s dealings with the Police in 2000 and 2011. In view of this and other country information referred to above, the Tribunal does not accept that the Police in Fiji will not protect the applicant if she returns to Fiji now or in the reasonably foreseeable future.   

   [6] New Fiji Police Commissioner Arrives This Week, Pacific Islands Report, 11 May 2014. ( Fiji Police Commissioner foils Suva restaurant robbery, Radio Australia, Australian Broadcasting Corporation, 22 May 2015. ( DFAT Country Information Report on Fiji, 14 April 2015.

   [9] Ibid.

7. Throughout the course of the hearing, the applicant repeatedly asked how she could live alone. The Tribunal accepts that she does not wish to live on her own in Fiji and that she would prefer to live with one of her children in Australia.

8. The Tribunal accepts that the applicant has a subjective fear of returning to Fiji. The Tribunal is not satisfied, on the evidence before it, and for the reasons given above that this fear is well founded.

9. The Tribunal has considered all the applicant's claims, individually and cumulatively, all the evidence including relevant country information and the submissions made by the applicant's migration agent. In view of the above findings, and in light of the Tribunal's finding that the applicant is not a credible witness, the Tribunal is not satisfied that she has a well-founded fear of Refugee Convention related persecution for any of the reasons put forward by her.

10. Having considered all of the applicant's claims, individually and cumulatively, the Tribunal finds that there is no real chance that the applicant would be at risk of persecution on the grounds of race, religion, membership of a particular social group or any other Refugee Convention reason if she returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.  

    Are there substantial grounds for believing that, as a necessary and foreseeable   consequence of the applicant being removed from Australia, there is a real risk that she will      suffer significant harm

11. The Tribunal has considered the applicant's claims under complementary protection. 

12. Having considered all of the applicant's claims, individually and cumulatively, the Tribunal is not satisfied, for the reasons given above, that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji now or in the reasonably foreseeable future.    

13. For the reasons given above, and in view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Fiji now or in the reasonably foreseeable future.

14. Accordingly, the Tribunal is not satisfied that 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 that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

15. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

16. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

    DECISION

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

Linda Symons
         Member