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

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).
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.
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.
[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.
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.
The applicant was represented in relation to the review by her registered migration agent.
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
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1419919 (REFUGEE) [2015] AATA 3335
Case: [2015] AATA 3335
Decision Date: 25 August 2015

CaseChat Overview and Summary

This case involves an applicant from Fiji who sought a protection visa in Australia. The Tribunal considered the applicant's claims of safety concerns in Fiji, including alleged incidents of harassment and robbery. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under Australian law, specifically whether she had a well-founded fear of persecution for a Convention reason or a risk of significant harm upon return to Fiji. The Tribunal also had to assess the credibility of the applicant's evidence and the relevance of country information provided.

The Tribunal found inconsistencies and implausibilities in the applicant's evidence, leading to a conclusion that she was not a credible witness. While the Tribunal accepted that the applicant and her husband were victims of a racially motivated home invasion in 2000, it rejected the applicant's subsequent claims of ongoing harassment and threats in Fiji. The Tribunal relied on country information indicating improved conditions and effectiveness of the Fijian Police since the events described by the applicant. Given these findings, the Tribunal determined that the applicant did not have a well-founded fear of persecution or a risk of significant harm if she returned to Fiji. Consequently, the Tribunal upheld the decision to deny the applicant a protection visa.

In conclusion, the Tribunal found that the applicant did not satisfy the criteria for a protection visa under the Act. The Tribunal's decision was based on the applicant's lack of credibility, the rejection of her claims of ongoing persecution, and the absence of substantial grounds for believing she would suffer significant harm if returned to Fiji. The Tribunal's decision to affirm the denial of a protection visa stands.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 FINDINGSEvidence provided to the Department 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.

Decision

Reasons for decision

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. 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.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.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. 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. 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. 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. 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.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.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.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. 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. 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.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 harmThe Tribunal has considered the applicant's claims under complementary protection. 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. 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. 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. CONCLUSIONThe Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act. 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.DECISIONThe Tribunal affirms the decision not to grant the applicant a Protection visa.Linda Symons Member

Ratio Decidendi

Legal Principle Established

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