1502190 (Refugee)

[2016] AATA 4273

1502190 (Refugee) [2016] AATA 4273 (3 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502190

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Roslyn Smidt

DATE:3 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 August 2016 at 12:05pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who are citizens of Fiji, applied for the visas [in] September 2014 and the delegate refused to grant the visas [in] January 2015.

3. Applicant number one[is] the only one who has made specific claims for protection. He appeared before the Tribunal on 21 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.

   THE RELEVANT LAW

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   CLAIMS AND EVIDENCE

   Background

10. The applicant is a [age] year old Fijian citizen of Hindu religion and Indian ethnicity from  [Fiji]. He is married and has [children]. His wife and children are included in this application as members of his family unit.

11. The applicant visited Australia twice in 1992 and twice in 1995. He next entered Australia[in] February 2001 on short stay business visa. He returned to Fiji [in] March 2001 and re-entered Australia [in] April 2001. He applied for a 457 visa [in] July 2001. This application was refused by the primary decision maker, but this decision was overturned by the MRT and the applicant was finally granted [in] August 2003. He applied for another 457 visa [in] August 2007 which was granted [in] September 2010 and remained valid until [September] 2014.

12. Since April 2001 the applicant has resided in Australia, but visited Fiji 8 times, once in 2004, three times in 2005, twice in 2010, twice in 2012 and once in 2013. He returned to Australia most recently [in] January 2013.

    The applicant’s claims

13. The applicant has consistently claimed that he fears serious harm in Fiji following a business dispute with some indigenous Fijian village leaders and that the Fijian authorities will not protect him because of his Indian ethnicity.

14. In written and oral submissions to the primary decision maker the applicant claimed that in 2000 his business ([name of business]) obtained a contract from the leaders of the [village] to do [work] on [number] houses. He was to be paid $[amount], but received only $[amount]. He was told the village leaders [Mr A], [Mr B], [Mr C], [name] and [name] had collected the money, but had spent it on themselves. When he persisted in demanding payment he was punched, received death threats and was told that as an Indian he did not belong in Fiji.  The applicant reported these events to the police and they took his statement, but they told him the men concerned had gone to another area and they could do nothing.

15. Two weeks later the applicant’s car was stolen from outside the home of a friend he was visiting and the following day it was found in a badly burnt state. He reported this to the police. He has provided a copy of a police report dated [September] 2000 which confirms this and a newspaper article which states that the car was stolen and burned.

16. An acquaintance called [Mr D] who worked at a petrol station told him a group of Fijians had come to the station with his car to buy petrol and that he could remember some of their faces. The applicant reported this to the police but [Mr D] told him that the police had intimidated him and accused him of helping the applicant because they were both Indian. The applicant said he did not believe that the police wanted to arrest the thieves because they were Fijian.

17. Following this the applicant was scared and depressed so he closed his business and came to Australia.  

18. At the hearing the applicant stated that he had not had any contact with the village leaders before he obtained the contract to carry out work in the village, which was about a [number] minute drive from his home. He said that he had been assaulted on one occasion in August 2000 when he demanded payment for this work. He reported the assault to the police, but they did not record his complaint. He did not take any legal action to enforce payment because he was afraid of the men.

19. The applicant said that his car was stolen and burnt in September 2000 and he believed that this was done by the village leaders. When asked why he believed this the applicant said that he did not have any other enemies. I observed that it could have been the act of a common thief. The applicant said he believed the village leaders were responsible, but he did not have any proof.

20. I noted that the applicant had previously stated that his friend [Mr D] had seen the thieves with his car, but based on his statement it appeared that they had not been able to identify them. The applicant confirmed that this was correct. I pointed out that the applicant had previously stated that his friend [Mr D] had said that he remembered some of the faces of the thieves, but the police had intimidated him so he did not provide evidence against them. The applicant said that this was correct. I observed that it appeared that he had provided differing accounts of these events. The applicant said that he had not understood my earlier question.

21. The applicant confirmed that he had continued to live at the same address in Fiji and operated his business until he departed for Australian in February 2001.

22. I observed that it appeared that the men had ample opportunity to harm him during the months he remained in Fiji following the August 2000 attack. The applicant said that the men had been on the other side of the island and had not seen him during that time, but he believed that they would have attacked him if they had seen him.  He also said that he had told the police about the August attack and that this could have been the reason he was not attacked again. I observed that this appeared to suggest that the police were protecting him. He said that the men and the police were friends and the police might have advised them to stay away for a while because he had lodged a complaint.

23. In his submissions to the primary decision maker the applicant said that he had visited Fiji in 2002 to attend his father’s funeral and while he was there a friend told him that [Mr A], [Mr C] and [Mr B] had told him that they had bashed the applicant and stolen his car to teach him a lesson. This claim was not raised during the hearing.

24. I asked the applicant why he had returned to Fiji in April 2001 if he was afraid of the men who had assaulted him. He said that he had returned to collect his family and he had not seen the men during this visit.

25. I noted that the applicant had returned to Fiji a further 6 times between April 2001 and the visit in August 2012 when he claims to have been assaulted again. I observed that this appeared to indicate that he was not in fear of the village leaders during that period. He said that he was able to return for short periods but he was afraid to return for an extended period as he feared he would be killed.  

26. I asked the applicant why he had not applied for a protection visa when he arrived in Australia if he held these fears. He said that he did not require protection as he had a 457 visa. I observed that it had taken him a considerable time to obtain the 457 visa which suggested he had problems obtaining it and it seemed strange that he would not have applied for protection in those circumstances. The applicant said he had not been aware of the possibility of applying for protection. I advised him that it was my understanding the possibility of seeking protection in Australia was widely known in the Fijian community. I asked who had helped him to apply for the 457 visa. He said that he had been helped by a migration agent, but maintained he was not aware of the possibility of seeking protection.

27. In his submissions to the primary decision maker the applicant said that during a visit to Fiji in August 2012 he had gone to a restaurant with a friend called [Mr E]. While they were there [Mr A] and [Mr B] entered, but left quickly after seeing the applicant. The applicant told [Mr E] about the problems he had faced with the men in 2000. As a result [Mr E] and his business partner withdrew from a proposed business deal with [Mr A], [Mr B] and two other men to do some work in a village called [name]. The following day [Mr A] and another two men came to the applicant’s house and accused him of spreading lies. They assaulted and threatened him. He went to the police to report the incident. He saw [Mr B] at the police station. The Fijian office he first spoke to directed him to an Indian officer who told him in a whisper that the police would not help him because he was Indian.

28. At the hearing the applicant confirmed that he had not experienced any further problems in Fiji until August 2012. He said that during that visit he had lived at the home he had occupied in [location] before leaving for Australia in 2001. He said that he had been at a restaurant with a friend when one of the village leaders involved in the 2000 dispute came in. The applicant’s friend told him that he had a contract to do some work for the men. The applicant told him about his experiences in 2000 and his friend said that he would cancel the contract and that as a result the men had assaulted him at his home two days later. I asked why his friend would have told the men that he was going to cancel the contract because the applicant had told him what had happened in 2000. The applicant said that his friend had not told the men of their conversation regarding the events of 2000, but they had assumed that he was responsible and beat him with an iron bar, injuring his nose and head.

29. The applicant said that he had gone to the police to report the attack and they had told him to go to the hospital to have his injuries treated and they would investigate further. He left Fiji two days later. He said that he did not know whether the police had done anything further in relation to his complaint.

30. When asked, the applicant said that his friend who had cancelled his agreement with the village leaders had not experienced any problems because of this.

31. I asked the applicant why he had not applied for protection when he returned to Australia following this attack. He said that he had been advised to wait until his 457 expired and then apply for protection.

32. The applicant confirmed that he had returned to Fiji later in November 2012. When asked why he had returned to Fiji if he feared he would be harmed by the village leaders, the applicant said that his wife’s mother was ill and his wife wanted to see her. I observed that his wife could have gone to Fiji without him. He said that they had gone to stay with his mother-in-law who lived about two and a half hours drive away from his home. Nothing happened during this visit.

33. The applicant returned to Fiji again [in] December 2013. In written submissions to the primary decision maker the applicant said that during that visit a neighbour called [Ms F] told him that [Mr A] and his gang had come to the house and asked for him and threatened his mother-in-law. He left the house quickly and returned to Australia earlier than he had planned. When this incident was discussed with the primary decision maker the applicant said that one day when he and his family were out at a party [Mr A] and some other men had come to this mother-in-law’s house. [Mr A] identified himself by name and threatened to kill the applicant. Following this he went to stay with a friend and returned to Australia 3 days later.

34. At the hearing the applicant confirmed that he had returned to Fiji again in December 2013 and stayed with his mother-in-law. He said that [in] January 2014 when he and his family were out some of the village leaders came to his mother-in-law’s house. His mother-in-law confirmed that they were staying at the house and would be returning later. The men threatened to kill the applicant if they found him and went away and did not return.

35. I asked the applicant how the men knew that he was visiting his mother-in-law. He said that he believed that someone must have seen him at the airport and informed the men and they had then tracked him down. I observed that it seemed strange that the village leaders would have gone to so much effort to track him down and despite being made aware that he was staying at the house they did not make any further effort to harm him. The applicant said that he had gone to stay with a friend who lived near the airport and had left Fiji 3 days later.

36. Later in the hearing I noted that the applicant had stated that he had guessed that someone had seen him when he arrived back in 2013 and advised the village leaders he had returned to Fiji. He said that a [person of a particular occupation] named [Ms F] had done this. I noted that he had mentioned [Ms F] when he spoke to the primary decision maker, but had said nothing about [Ms F]’s role when I asked him how he had been located when he returned to Fiji in December 2016. I advised him that I had difficulty accepting that he would not have mentioned [Ms F] when I first asked him who he thought was responsible for the village leaders tracking him down. The applicant maintained that his claims were true.

37. I advised the applicant that I had difficulty accepting that he would have been pursued for 16 years because of a business dispute in 2000 and a relatively minor matter in 2012 and that I also found it difficult to understand why he would have travelled in and out of Fiji so many times between 2001 and 2013 if he feared for his life.  The applicant said that he was afraid he would be killed and fearful that his [child] would also be harmed. I asked why he thought his [child] would be harmed. He said that he could not trust the local people.

38. I noted that the applicant had claimed he would not be able to obtain protection from the Fijian authorities because of his Indian ethnicity and advised him that DFAT had advised that overall Indo-Fijians faced only a low level of official discrimination on the basis of their ethnicity. I also advised him that DFAT had advised that while the Fijian police were sometimes unresponsive, the force was made up of about two third Indians and one third indigenous Fijians, which reflected the overall composition of the Fijian population, and the police did not generally discriminate against Indo-Fijians. The applicant responded that the local police knew his attackers and they were friends. I observed that even if that were true, it only related to that local area, not the rest of the country. The applicant said that all of the police in his mother-in-laws area were Fijian.

39. The applicant’s representative made a number of submissions on his behalf. He submitted that the applicant did not need to apply for a protection visa while he held a 457 visa and added that the issue of protection visas was not well understood in the Fijian community. He also submitted that the Indio-Fijians continue to face serious discrimination in Fiji. He stated that the police were deeply racist and the military were even worse, that the opposition SOLDEPA are racists and that indigenous Fijians hate the current Prime Minister. I observed that while I understood that there continued to be some problems for some Indo-Fijians in Fiji, the advice from DFAT indicated that Indo-Fijians were not generally at risk of serious harm in Fiji now or in the reasonably foreseeable future because of their ethnicity. The applicant’s representative disagreed with this. He said that in his view DFAT did not have a deep understanding of the situation in Fiji and indicated that there was evidence to support the statements he had made regarding the current situation in Fiji. I observed that he had had ample time to provide this information and advised him that if he wanted to provide additional information in support of the applicant’s case he should provide it by close of business the following day. He agreed to do this.

40. On 22 July 2016 the applicant’s representative forwarded copies of a number of newspaper articles and reports, some give a historical perspective on the situation of Indians in Fiji, others report the members of the Fijian opposition boycotted a visited by Indian Prime Minister Modi, apparently because they were angry at the government for not giving them adequate access to the Prime Minister, one notes that the Commissioner of Police was accused of racism when he questioned the loyalty of Indo-Fijian police officers apparently for failing to support an anti-crime crusade, others, criticises comments made by former Prime Minister Quarese  and the role of the military.

    Country information

1. The following information from  DFAT Country Report  Fiji 14 April 2015 is intended to provide a context for the applicant’s claims

2. Since 2009, the government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. It has reformed or removed racially-based aspects of the political system (including by abolishing separate ethnic-based voter rolls and the Great Council of Chiefs). The 2014 election suggested that a strong majority of Indo-Fijians and a significant plurality of indigenous Fijians support this agenda. Without discounting the importance of race in communal and political relations, Fiji is an increasingly multi-racial and racially integrated country. For example, Fijian youth increasingly support a multi-racial Fiji and racial slurs are now generally considered a social taboo.

3. In practice, Indo-Fijians are able to access employment, education, healthcare and other government services on the same basis as other Fijians. The number of Indo-Fijians in Parliament, in Cabinet and in FijiFirst, the governing party, is broadly proportionate to the broader population. The main opposition party, SODELPA (the Social Democratic Labour Party) is nationalist-leaning and has very few Indo-Fijian members.

4. Instances of official discrimination are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.

5. Overall, DFAT assesses that Indo-Fijians face a low level of official discrimination on the basis of their race/nationality.

6. In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists.

7. 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.

8. As of 2014, the treatment of Indo-Fijians by ordinary indigenous Fijian communities varies. A range of Indo-Fijians said that treatment had improved in recent years and that there had been a reduction in (reported) crime, including a reduction in theft, robbery, assault, burglary and desecration of temples. A range of contacts said that robberies of Indo-Fijian [persons in that particular occupation] were frequent, but that these were not necessarily racially based...More broadly, most contacts assessed robberies to be motivated by income disparity, rather than race or ethnicity per se. Indo-Fijians are sometimes perceived to be wealthier than indigenous Fijians and are therefore more likely to be targeted for economic reasons.

9. State protection for Indo-Fijians is generally assessed to be only partially effective. However, this is because of poor police capacity and there is not a significant disparity between the quality of state protection provided to Indo-Fijians and to indigenous Fijians. Indo-Fijian groups assessed the police to be under-resourced and unresponsive, while the military (despite its overwhelmingly indigenous Fijian make-up) was assessed to be effective and responsive.

10. 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.

11. 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

12. The FPF has some ability to protect individuals from societal harassment, discrimination, and violence. It is relatively accessible, though one Indo-Fijian community organisation said that the police are sometimes unresponsive.

    CONSIDERATION OF THE APPLICANT’S CLAIMS AND EVIDENCE

13. For the following reasons, I did not find the applicant to be a credible or a truthful witness.

14. While it is plausible that the applicant might have been assaulted in 2000 after demanding money which was owed to him, I found the applicant’s evidence regarding the problems which this caused to be lacking in credibility.

15. According to his evidence, the applicant did not take any action to obtain payment from the men after he was assaulted. While he claims to have reported the assault to the police, the men were not arrested or charged and the applicant did not pursue the matter further. In these circumstances, even if I accept that he was assaulted when he demanded payment, I can think of no plausible reason why the village leaders would have wanted to pursue or harm him.

16. Furthermore, there is no credible evidence before me which suggests that these men were pursuing or seeking to harm the applicant or that he was fearful of serious harm at the time he left Fiji.

17. The applicant states that he remained in Fiji living at the same address until late February 2001, some six months after the alleged assault in August 2000 without experiencing any problems with the village leaders. During the hearing he claimed that he was safe during that period because the men were in another part of Fiji. It is not plausible that the men would have failed to return to the area and take some action against the applicant during the 6 months period he remained in Fiji if they were determined to harm him. Nor is it plausible that the applicant would have continued to reside at the same address in Fiji if he genuinely believed that these men wanted to do him serious harm.

18. In reaching this conclusion I have noted the applicant’s suggestion that the men had not harmed him during this time because the police had advised them to leave the area because the applicant had lodged a complaint against them. However, this suggests that the police had taken some action to protect him, which does not sit well with the applicant’s claim that the police would not act against the men because they were friends.

19. Furthermore, the applicant did not apply for protection in Australia when he arrived in 2001 and returned to the same address in Fiji 7 times over the next 11 years. I do not accept that someone who was in continuous fear of the men who assaulted him in 2000 would have behaved in this way. In reaching this conclusion I have noted the claim by the applicant and his adviser that he had a 457 visa and did not need to apply for protection at that time. However, as set out in the primary decision, he did not apply for a 457 visa until July 2001 and his application was refused by the primary decision maker on 18 June 2002 and he did not obtain a 457 visa until August 2003. If the applicant was genuinely fearful of harm in Fiji I believe he would have sought protection during this period.

20. After considering all of the relevant evidence and in light of the additional problems with the applicant’s credibility set out below, I do not accept that he was involved in a dispute with village leaders who assaulted him in 2000 because he demanded that they pay him for his work.  I find that he concocted this claim to support his application for protection in Australia.

21. In reaching this conclusion I have noted the applicant’s claim that his car was stolen and burned by the village leaders shortly after he was assaulted in 2000. I accept that the applicant’s car was stolen and burned in September 2000. However, even if I accept that the applicant was involved in a dispute with village leaders in 2000 (which I do not), there is no credible evidence before me which suggests that they were responsible for the theft of his car.

22. When this matter was first discussed at the hearing the applicant stated that he suspected the village leaders were involved, but agreed that this was mere speculation. He said nothing about his friend being intimidated by the police to prevent him giving evidence until I reminded him of his earlier claim and made no mention at all of his 2002 conversation with a friend who told him that [Mr A], [Mr C] and [Mr B] had confessed to stealing the car.  I do not accept that the applicant would have failed to mention the intimidation of his friend or his 2002 conversation when asked who stole his car at hearing. I believe he failed to mention these claims because they are not true and he had forgotten his earlier claims. I believe that the applicant sought to misrepresent the circumstances in which his car was stolen in an attempt to enhance his claims for protection in Australia. Furthermore, whoever was responsible for the theft of the applicant’s car in 2000, there is nothing in the evidence before me which suggests that the perpetrators threatened him or caused him any further harm or that there is a real chance that they would do so if he returned to Fiji.

23. As I do not accept that the applicant was involved in a business dispute with village leaders in 2000 it follows that I do not accept that he was assaulted by [Mr A] and other village leaders in 2012 because of the events of 2000 and 2012. Furthermore, even if I accept the applicant’s claims regarding his experiences in 2000 (which I do not), there are other significant problems with his evidence regarding his later problems.

24. The applicant gave conflicting accounts of his interactions with the police following the alleged assault in 2012. He told the delegate that an Indian officer told him he would not be assisted because of his ethnicity, but told me at the hearing that the police had told him they would investigate, but he had left the country and did not know whether they had taken any action in response to his complaint. In addition as noted above, DFAT have advised the Fijian police do not generally discriminate against Fijian Indians and I find it unlikely that an Indian police office would have warned the applicant that he would receive no assistance because of his ethnicity.

25. As I do not accept the applicant’s claims regarding the 2000 business dispute or the 2012 assault, it follows that I do not accept that [Mr A] and the other village leaders pursued him to his mother-in-law’s house in 2013 with the intention of harming or killing him.

26. Furthermore, even if I accept the applicant claims regarding his earlier problems (which I do not), I find his claims regarding the events which he said took place in 2013 lacking in credibility.

27. While it is perhaps plausible the applicant might have been assaulted by men who believed that he had ruined a business deal they were involved in in the immediate aftermath of that event, I find the claim that they would have remained so angry that they wanted to harm or even kill him four months later implausible. I also find the claim that [Mr A] identified himself to the applicant’s mother-in-law and threatened to kill him, then left and never returned implausible. If [Mr A] had been determined to harm the applicant I do not believe he would have identified himself and announced his intentions to the applicant’s mother-in-law, thus warning the applicant of his intentions. Furthermore, if [Mr A] had gone to the lengths of locating the applicant and travelling some two hours with the intention of harming the applicant, it is not plausible that he would have taken no further action to carry out his threat. In reaching this conclusion I acknowledge the applicant’s evidence that he left his mother-in-law’s house and stayed with a friend after learning that his life had been threatened. However, there is no suggestion that [Mr A] and his friend returned to his mother-in-law’s house after his first visit which they would surely have done if they had been told that the applicant was staying there and were determined to harm him.

28. In addition, the applicant has given differing accounts of how [Mr A] and the others came to know he was at his mother-in-law’s house. At the hearing he first said that he did not know and speculated that someone had seen him arriving at the airport and told [Mr A] he was back in Fiji after which [Mr A] tracked him down at his mother-in-law’s house, but when asked to confirm this later in the hearing he said that a [person of a particular occupation] called [Ms F] was involved. The applicant had mentioned a dispute of some kind with someone called [Ms F] in his written submission, but did not claim that he was responsible for informing [Mr A] and the others of the applicant’s whereabouts.

29. While some of the problems set out above are relatively minor and considered in isolation would not have caused me to reject the applicant’s claims, others are more serious and after considering all of the relevant evidence I do not find him to be a truthful or a credible witness.

30. I do not accept that he was involved in a business dispute with or assaulted by village leaders in 2000 or that he fled Fiji in 2001 because he feared he would be harmed by anyone. I do not accept that he was assaulted by anyone in 2012 or threatened by anyone at his mother-in-laws house in 2013. Nor do I accept that he was refused protection by the Fijian police or anyone else at any time because of his ethnicity.  I believe that these claims were all concocted to support his claim for protection in Australia.

31. In reaching this conclusion I have noted the applicant’s representative’s submissions regarding the situation of Indo-Fijians in Fiji today and I have considered whether the applicant or any of his family members who are included in this application would be at risk of serious or significant harm because of their ethnicity if they returned to Fiji.

32. The applicant has provided no credible evidence which suggests that he or any other member of his family has suffered or been threatened with serious harm or discrimination in Fiji because of their ethnicity in the past. As noted above, DFAT have advised and I accept that while some Indo-Fijians may face some low level discrimination from indigenous Fijians, they are not generally at risk of facing official discrimination. There is nothing in the evidence provided by the applicant’s representative following the hearing which causes me to alter my view on this issue. In these circumstances I am not satisfied that the applicant or any of the other applicants included in this application faces a real chance of suffering serious or significant harm on return to Fiji because of their Fijian ethnicity.

    Findings in relation to s.36(2)a (Refugee Status)

33. There is no credible evidence before me which suggests that the applicant fears serious harm or that there is a real chance that he would suffer serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future if he returns to Fiji. Therefore I do not accept that he has a well-founded fear of persecution for a Convention reason.  I am not satisfied that he is a person in respect of whom Australia has protection obligations under the Refugees Convention and he therefore does not satisfy the criteria set out in s.36(2)a.

    Findings in relation to s.36(2)(aa) (Complementary protection)

34. There is no credible evidence before me which suggests that there is a real risk that the applicant will suffer significant harm if he returns to Fiji. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

35. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    Roslyn Smidt
    Member