1502278 (Refugee)

[2016] AATA 4656

1502278 (Refugee) [2016] AATA 4656 (1 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502278

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Jolliffe

DATE:1 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2016 at 9:36am

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 claim to be citizens of Fiji , applied for the visas [in] August 2012 and the delegate refused to grant the visas [in] February 2015. The Tribunal notes that only the first named applicant has made claims for protection and the second named applicant makes no separate claims for protection but claims protection as a member of the same family unit as the first named applicant. In those circumstances the Tribunal will refer to the first named applicant as “the applicant” in these reasons. The applicant had previously lodged a protection Visa application in Australia in September 2002 and that application was refused in October 2002. The Tribunal notes Section 48A of the Act imposes a bar on a noncitizen making a further application for a protection visa while in the migration zone in circumstances where the noncitizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ .v. MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raised the same essential criterion for the grant of a protection visa. Applying the reasoning in the decision in SZGIZ the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a) in relation to the applicant’s claims and has only considered the applicant’s claims under the Complementary protection provisions in s.36(2) (aa) of the Act. The second named applicant applied for a protection VISA in Australia in August 2012 and that application was refused in August 2013. The Refugee Review Tribunal (RRT) affirmed that decision in June 2014. The applicant had also applied for ministerial intervention in relation to his immigration status but the application was not considered to satisfy the ministerial guidelines in relation to ministerial intervention. He was advised of that decision in September 2012.

3. The applicants were to appear before the Tribunal on 2 August 2016 to give evidence and present arguments. There was a problem about the location of the video hearing and the hearing did not proceed . The applicants were to appear by video link before the Tribunal on 6 September 2016. However on that occasion the hearing had to be adjourned because the applicant had [an] incident and he was unable to attend the hearing. The hearing proceeded by video link on 25 October 2016 and the applicants appeared before the Tribunal on that day to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

   Relevant Law

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the Department and Tribunal files relating to the applicants together with relevant information from a variety of sources.

10. The issue in this case is the applicant claimed to fear harm if he returned to Fiji on the basis of domestic violence and he specifically nominated his [relatives] as the source of his fear of harm.

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

12. In his protection Visa application which was lodged in August 2012 the applicant claimed that he was born in [a] Village in [a location] in Fiji on [date]. He claimed to have married in Fiji on “[date] 1944(sic)”. The Tribunal notes that is clearly an error given the applicant was born in [year]. He claimed to have entered into a de facto relationship in [State 1 in Australia] in May 2004 and that he separated from his wife in May 2002. He claimed not to have any right to enter or reside temporarily or permanently in any other country apart from Fiji. He claimed to have arrived in Australia on a [temporary] Visa in August 2002 and to have been issued a Fijian passport in [2002] and it was renewed in [2012]. He claimed to have lived in Fiji until he came to Australia. He claimed to have been educated at a school in Fiji between [year] and [year] and to have completed year [grade]. He gave his occupation as a full-time [occupation] in Fiji and he also provided his work history since he has been in Australia.

13. In his protection Visa application he provided reasons as to why he had left Fiji and why he was seeking protection in Australia. In summary he said he left Fiji in August 2002 because his marriage was in difficulties and that he had been “chased out of my [property] by my [relatives]”. He said his wife was a [occupation] and that he was a full-time [occupation] and that they lived on a [property] which he leased. He said his [property] was also used by the military as an outpost and that the military would visit if they were in the area. He said he and his wife did not have any children but that he had had an affair with another woman and that relationship had produced a [Child]but that the [Child] had [died]. He claimed that when his wife found out about the affair that she forced him to leave the family home and her [relatives] told him to leave the [property]. He claimed he refused but he was then assaulted and thrown off the [property]. He claimed his wife told him not to report the incident to the police as things would get worse for him if he did so. He claimed he asked [someone] to take him to Suva and he went to his [Relative 1]’s home where he stayed before he came to Australia. He claimed he was injured when he was assaulted by his wife’s [relatives] but his [Relative 1] and his wife had helped him with the injuries. The applicant said that he did not go to hospital as he would have been questioned by the police and he claimed that he had facial and head injuries. He claimed that he had been assaulted by his [relatives] and his life had been threatened if he reported the assault to the police. He also said that he had been emotionally affected because he had lost his marriage and his [Child] had died.

14. He said that he feared for his life if he returned to Fiji and referred to the political situation in Fiji and claimed that his wife was closely related to [a] Fijian government [official] and that his safety could not be guaranteed. He referred to the Fijian government as being a military regime and that his wife could cause him to be hurt and that the military could hurt him and make him disappear. He claimed to fear harm from his wife’s family and Fijian authorities and he claimed that his [relatives] had come looking for him after he left Fiji to come to Australia. He claimed they wanted to make changes to the lease in relation to the [property] but could not do so without his signature but he had left Fiji and had not assigned the lease to his wife. He claimed as a result the [property] could not operate as the family was unable to get loans and assistance from the government. He claimed that he had been recently informed that his wife had lost the [property] and were forced to sell the [products] to other [people] and that the [property] is now idle. He claimed that his wife’s family in Fiji had not forgiven him. He claimed that his wife had visited his [Relative 1] in Fiji before Christmas 2002 and obtained the applicant’s telephone number after she threatened that she would report [Relative 1] to [the official] unless he provided the telephone number. The applicant claimed that his wife had spoken to him and had said “if you fail to make changes to the land lease, do not set foot in Fiji as it will cost you your life”. The applicant said he changed his telephone number after that call. The applicant claimed that he would not be able to be protected in Fiji as the current government in Fiji is led by the military and that was not safe for him to go back to Fiji because his wife’s family are connected to [a government official] and that they are using that relationship to threaten the applicant’s life. The applicant also referred to his relationship with the second named applicant and said that they could not go back to their families as they both fear for their lives in Fiji. The applicant claimed he and the second named applicant could not safely relocate anywhere in Fiji and (by implication) they wanted to remain in Australia.

15. The applicant provided a number of documents in support of his protection Visa application. One document was a letter from his [Relative 1] in Fiji who had assisted him after the applicant claimed he had been assaulted by his wife’s [relatives] in 2002. In summary that letter refers to [Relative 1] and his wife assisting the applicant in relation to his injuries on that occasion. The letter, also in summary, refers to [Relative 1] having been visited by the applicant’s wife in Fiji and [Relative 1] claimed that he was threatened by the applicant’s wife to provide the applicant’s telephone number in Australia or otherwise she would ask [the official] to obtain the telephone number from [Relative 1]. He claimed that he was subsequently told that the applicant’s wife had spoken to the applicant about changing the names on the lease agreement in relation to the [property] and that there had been a heated argument between the applicant and his wife and that his wife had made threats to the applicant. [Relative 1] claimed that he now contacted the applicant through a friend’s email address using anonymous names and he understood that the applicant was seeking permanent residence in Australia.

16. The applicant provided a copy of his Fijian passport as well as a media article from Amnesty International which was headed “Fiji: new constitution fails to protect fundamental human rights” and was dated September 2013. There were also documents provided in relation to the applicant having been admitted to hospital in [State 1] in relation to [medical condition] and that occurred in February 2013. Documentation was also provided in relation to the applicant’s accommodation arrangements in [State 1] and the applicant’s banking arrangements. A letter of support was also provided in support of the applicants seeking permission to work. A copy of the applicant's marriage certificate in Fiji was provided as well as a birth certificate for the applicant and the second named applicants Fijian passport. The second named applicant provided a marriage certificate and a birth extract in relation to her. There was a letter of support from an employer dated August 2012 and a letter of support from a minister of religion in [State 1] in relation to the applicants involvement in church activities. Certificates of confirmation were provided in relation to the applicants by [a church in]  Australia. The applicant also subsequently provided the Tribunal with a copy of a medical document from a [State 1] medical practice dated February 2015 indicating that he has a number of medical conditions that require ongoing medical review. The Tribunal was also provided with subsequent medical documentation in relation to the applicant being unable to appear before the Tribunal in September 2016 because of [an] incident. The Tribunal also noted that a copy of a lease agreement for land in Fiji had been provided by the applicant to the Department.

17. The applicant was interviewed by a department delegate in relation to his protection Visa application in November 2014. The delegate declined to grant the applicants a protection Visa.

    TRIBUNAL HEARING

18. The applicants appeared before the Tribunal on 25 October 2016 by video link to give evidence and present arguments.

19. The applicants confirmed that only the first named applicant was making claims for protection and that the second named applicant was seeking protection in Australia on the basis of being a member of the same family unit as the first named applicant. The Tribunal notes that the commencement of the hearing on 25 October 2016 was delayed initially because of the unavailability of an interpreter.

20. The applicants confirmed their name and personal particulars to the Tribunal. The Tribunal informed the applicant's that it was only considering their claims for protection under the complementary protection provisions of the Migration Act and the basis for the Tribunal's decision. The Tribunal referred to the first named applicant's migration history in Australia and his previous protection Visa application. The first named applicant was asked if he wished to comment on that decision and he referred to the many difficulties that he and the second named applicant had faced in Australia because of their health situation and he said they wanted protection in Australia. The first named applicant confirmed he was seeking protection on the basis of domestic violence fears from his wife's family in Fiji and specifically that he feared his [relatives]. He said he was still married to his wife in Fiji and that he sends her money from time to time to help her because he described her now as quite elderly. The second named applicant confirmed that she was only seeking protection in Australia on the basis of being a member of the same family unit as the first named applicant and had no separate claims for protection. The Tribunal was told that the applicants had been living together since May 2004.

21. The first named applicant told the Tribunal that he had never had any problems with Fijian authorities when he was in Fiji and that he had not been involved in any political activities in Fiji and that he had not been a member of the Fijian Labour Party which was a claim that had been previously made in his first protection Visa application. He did not claim to fear harm from Fijian authorities if he returned to Fiji. He also told the Tribunal that he had not read the Department delegate's record of decision. The Tribunal during the hearing referred the applicant to the delegate's record of decision and the delegate's findings in relation to the applicants claims and invited his comments.

22. The Tribunal asked the first named applicant about his claims. He told the Tribunal that in relation to the claims made in his application that his wife was related to [a government official in] Fiji that he had no knowledge of such a relationship. He told the Tribunal that he did not fear harm from his wife in Fiji.

23. The Tribunal referred to the applicant's main claims that he had been chased off his [property] and assaulted by his wife's [relatives] when he had disclosed an affair and the birth of a child. He had then claimed to have gone to his [Relative 1]’s home where he was helped with his injuries. The applicant confirmed those claims. He also confirmed that he had not reported the claimed assault to the police in Fiji. He said he did not report the assault because reporting would be a very long process and he decided to flee Fiji and come to Australia. The Tribunal asked him about when these events were alleged to have occurred. The Tribunal had difficulty on occasions getting the applicant to focus on some Tribunal questions and to provide specific detail in relation to his claims. He told the Tribunal he had been living on the [property] for quite a long time and that he was involved in [work]. He said his wife and he went to the [property] on [certain days] as she was a [occupation]. He then told the Tribunal that he had been on the [property] since 1984. The Tribunal asked him when he was forced off [property] and the Tribunal had to ask the question several times before it was able to get the applicant to provide details. He then told the Tribunal that it was the year "2000" when he was forced from the [property] and he nominated April 2000. The Tribunal asked the applicant to confirm the "2000" date on several occasions during the hearing. The Tribunal asked the applicant when he claimed to have had an affair and that affair led to the difficulties with his wife and his claimed eviction from the [property]. He told the Tribunal that it was 1984 that he had the affair and when asked to provide details of the woman with whom he claimed he had an affair and a child he said that he only knew her by the name "[Ms A]". He said the [Child], with [Ms A], was born in [year]. He said the [Child] died in 1984. The Tribunal noted that the applicant's evidence about the affair and the death of the [Child] differed to the information provided by the applicant in his protection Visa application

1. The Tribunal asked the applicant about the completion of his protection Visa application. The applicant said that a "lady" had assisted him in completing the application. He said that woman used to live with he and his wife but had then relocated elsewhere in [State 1]. The Tribunal asked the applicant if he had read his protection Visa application and he said it was difficult for him to read English because of his education level. The Tribunal asked the applicant how he knew what the lady put in the application regarding details. He said that the lady had typed in his answers. The Tribunal as indicated raised with the applicant the variations in his claims in his protection Visa application and his evidence and the details surrounding the claims about the dates of his affair and of the birth of his [Child]. The applicant said that he did not entirely agree with the information in his protection Visa application and then told the Tribunal he had an adopted [Child] in Fiji. The Tribunal asked him for any explanation that he could give about the variations between his claims in his protection Visa application and the evidence he had given to the Tribunal. The applicant said that he now realised that the lady who had completed his protection Visa application had "made up" answers. The Tribunal said that it did not seem plausible to the Tribunal that the person assisting him to complete the application would do that. The applicant said that the lady [was] used to "making up" stories. He said he did not agree with the information in his protection Visa application.

2. The Tribunal said that the applicant's evidence that his affair had been in 1984 and the death of the child in that year did not make sense to the Tribunal regarding the overall claims in his protection Visa application and the events which he claimed in that application had occurred in 2002. The applicant said that he had run a successful [operation] and that his [relatives] did not like that. The Tribunal said that it was concerned about the credibility of the applicants claims given his evidence. The applicant again said that he did not agree with what the lady had written in his protection Visa application.The Tribunal referred to the delegate's decision record and the details about the applicant's claims that were referred to in that decision. The applicant said he had not read the delegate's decision. The applicant again claimed that he was definitely forced of his [property] in April 2000 and he specifically said that it was not May 2002 when he had been forced off his [property].

3. The Tribunal asked the applicant about the claims in his protection Visa application regarding the lease and that his wife was a relative of [a government official]. He told the Tribunal that he was not sure of any family relationship between his wife and the [official]. He also told the Tribunal that his wife had not threatened him regarding the lease and he said he did not fear his wife in terms of any harm if he returned to Fiji. As indicated he told the Tribunal that he still provided some financial support to his wife when he could afford to and that he felt sorry for her. He confirmed that he was still married to his first wife. The Tribunal asked him about where he had been living in Fiji before he claimed to have been evicted from his [property]. The applicant disagreed with the information provided in the protection Visa application (see question 35) regarding the name and address of the [property]. He referred to the lease document and said that he had been living on the leasehold land and again said that he did not agree with what the lady had written in the protection Visa application regarding that issue.

4. The Tribunal noted in relation to the lease document that had been provided to the Department that the lease was for 30 years from January 1983 and in those circumstances the lease had expired in January 2013. That was relevant in relation to the applicants claims in his protection Visa application that he feared harm because he had not assigned the lease. The Tribunal noted that the lease was no longer an issue because it had expired.

5. The Tribunal asked the applicant about a letter that had been received from the applicant's [Relative 1] in support of his protection Visa application. The Tribunal noted that [Relative 1]’s letter which has been referred to elsewhere in these reasons in many respects repeated the applicant's claims that were made in the protection Visa application regarding dates and details. The applicant said that [Relative 1] was really his adopted [Child] and the Tribunal noted other information that the applicant had provided about his family details in both his current and former protection Visa applications. The applicant said that he did not agree with the claims that were made in his [Relative 1]’s letter regarding dates and details. He again referred to the lady writing things in his application that were not correct. The applicant claimed that he had adopted his "[Relative 1]" when he was [age]. The Tribunal suggested to the applicant that the birth certificate for [Relative 1] suggested that he was the applicant's [Child] and was not adopted. The applicant said he had no documents to support his claims that he had adopted his [Relative 1]. The applicant said he had no other documents to support his claim that he had another [Child] born in 1984.

6. The Tribunal asked the applicant about his first protection Visa application which had been lodged in September 2002. The applicant told the Tribunal that he thought he had been applying for a tax file number when that document was completed. The Tribunal noted that in that application the applicant claimed that the person described now as his [Relative 1]/adopted [Child] was claimed as his [Child] in that first protection Visa application. He was asked who completed that application and he said that a person called "[Mr B]" had completed that application and he said that he was a Fijian person [and] the applicant had paid him to complete the application. He again claimed that he thought he was applying for a tax file number and he told the Tribunal that it was "his mistake" in terms of the first protection Visa application. The Tribunal referred to the details in the first protection Visa application regarding the applicant's claims at that time. The applicant had claimed in that application that in essence he had been beaten and assaulted during a coup in Fiji and he was fearful of the Fijian police Commissioner and the main military officer involved in the coup. The applicant said that he was not aware of those claims. The applicant said that "[Mr B]" had made things up on that occasion as did the "lady" who had completed his current protection Visa application.

7. The Tribunal told the applicant that it was very concerned about the variations in his evidence to the Tribunal and his claims in his protection Visa application. The applicant said that he was "surprised" by the information that the Tribunal had referred to when questioning the applicant about his claims to fear harm in Fiji. He said that he had paid people to complete his protection Visa applications and he claimed that he had been "manipulated" by these people. He again told the Tribunal that he had been forced off his [property] in April 2000. The Tribunal asked him about the delegate's record of decision and the delegate's summary of findings (see page 8 delegate's record of decision). He did not respond to the delegate's findings but said that "things" in the protection Visa application were not true and that the lady had made them up.

8. The Tribunal in summary said that the essence of the applicants claims based on his evidence to the Tribunal was that he had had an affair in 1984 and a [Child] had been born and had died and that he was thrown off his family [property] in 2000 by his [relatives] after he disclosed the affair to his wife. He agreed with that summary and as indicated he told the Tribunal that his wife had not threatened him and that he did not agree with his [Relative 1]’s letter and that he did not fear Fijian authorities.

9. He was asked why he came to Australia and he said that it was embarrassing to see his [relatives] in Fiji and he also had a distant relative in Australia. He was asked why, if the events he referred to occurred in April 2000, he had not come to Australia until August 2002. He said that he did not have enough money initially to come to Australia and he raised funds through operating a [business] in Fiji. He confirmed that he came to Australia on his Fijian passport and had no difficulties in leaving Fiji. He also confirmed that he had not received any medical treatment after the claimed beating by his [relatives] when he had been forced off the [property].

10. He was asked why his [relatives] would now harm him if he returned to Fiji. He said he was "happy in Australia". The Tribunal noted that it appeared that the applicant just wanted to remain in Australia rather than fearing harm in Fiji. The Tribunal raised the possibility that the applicant could get state protection in Fiji if he feared harm from his wife's family and the applicant said that he could get state protection in Fiji but was concerned about his health and concerned about getting medication in Fiji. He told the Tribunal that he was grateful for the medical treatment he had received in Australia and he also asked about being permitted to work in Australia and also his access to a Medicare card. He confirmed that he had current access to a Medicare card. He told the Tribunal that he was currently taking medication because of his [health] condition.

11. He was asked what he would do if he returned to Fiji and he said that it would be difficult for him to return to work in Fiji because of his medical condition and he could not return to [industry] but he could still work in Australia. He said he owned no property in Fiji. He confirmed that he still sent money to his wife in Fiji when he could afford to and he nominated that on occasions he would send $[amount[ per week to his wife. He referred to his [Child] in Fiji and the Tribunal confirmed that was the person that he had lived with(and who had been described as his adopted [Child] or [Relative 1]) after he had been thrown off the family [property]. The applicant said that life in Fiji was hard and he did not want to be a burden to his [Adult child] and his [Child]'s family but if he returned to Fiji he would go to live with his [Adult child] but that he would be a burden on [them]. He told the Tribunal he had no savings.

12. He was asked had any further to add in relation to his claims. He told the Tribunal that he was grateful to the Tribunal for everything he had been told about his applications but said that he believed he had been truthful and was concerned about his health. The Tribunal had asked the applicant about his claims that other people had included false information in his protection Visa applications. He said that a man had read the information his current protection Visa application back to him when he lodged the application. The Tribunal noted that his current protection Visa application contained a lot of personal information that could have only been supplied by the applicant. He said that he was just having a chat with the person completing the application and did not realise that the person was putting information in the application. He agreed that he had signed both protection Visa applications. The Tribunal said that it did not seem credible to the Tribunal that he did not understand or realise that he was applying for a protection Visa application when he claimed that in his first protection Visa application he thought he was applying for a tax file number. He claimed he thought he had been applying for a tax file number in relation to the first protection Visa application. He claimed that the people who had prepared his protection Visa application had not read the answers back to him and he said in relation to his current protection Visa application that the "lady" had given him the form and pointed to where we had to sign the application. As indicated the Tribunal noted that the applicant had signed the application.

13. The Tribunal, in summary, referred to country information contained in the DFAT country report for Fiji dated April 2015. In terms of the DFAT country report the Tribunal noted that Prime Minister Bainimarama had been elected in September 2014. The Tribunal noted that the Fijian Constitution guaranteed freedom of speech and expression but that rights are subject to broad caveats and can be limited by other laws. The Tribunal noted that regional government systems that predated the 2013 Constitution remained in place. The Tribunal noted that Fiji was classified by the World Bank as an upper middle income country. The report indicated that Fiji has high levels of youth unemployment. The Tribunal noted that the Fijian government provides generous public health services including free primary and secondary healthcare according to the report but x-ray and other support services are not generally subsidised. The report indicated that there are four main hospitals in Fiji and three of them are state funded institutions while the fourth is a commercial facility. The report indicates that the security situation in Fiji is generally stable and secure and that crime rates are moderate and crime rates in relation to some crimes are consistent with regional averages. The Report indicates that the Department's assessment overall is that the likelihood of any individual being subject to cruel or inhuman or degrading treatment or punishment is low but someone who was seen to have embarrassed the government or security services might have a higher risk profile.

14. The report also indicates that since the election the rule of law in Fiji has generally improved in comparison to the position before the election. The report indicates the Fijian police force is generally seen to be impartial. The Department assessment is that Fiji’s judicial system is not capable of providing protection to high profile opponents of the government but for low profile and nonpolitical matters the judicial system is generally capable of providing effective state protection. The report notes that for most ordinary citizens the police and military are effective and impartial. The report refers to internal relocation and notes that relocation is more practical for certain people and to certain locations and less skilled people would find it difficult in practice to move away from family networks.

15. The Tribunal relevantly, in relation to the applicants claims, referred to the information in the DFAT country report which referred to medical and health issues in Fiji and the availability of medical facilities in Fiji.

16. The applicant in commenting on the country information referred to by the Tribunal thanked the Tribunal for providing that information but said that he was getting old and it would be difficult for him to obtain employment in Fiji.

17. The Tribunal referred to information that it had pursuant to S424AA of the Act. That information would be a reason or part of a reason for affirming the decision under review. That information was contained in the applicants first protection Visa application and in the delegate's record of decision which had been referred to by the Tribunal during the course of the hearing. The Tribunal told the applicant that information was relevant to the Tribunal's assessment of his claims and in determining the credibility of those claims. The Tribunal had referred during the hearing to the applicant's first protection Visa application where the grounds on which he was seeking protection in Australia on that occasion were entirely different to the grounds that he had made in his second protection Visa application. The inconsistency between the two applications was a matter for the Tribunal to consider in assessing the applicants claims. The Tribunal also referred to the information in the delegate's record of decision in relation to the applicant's current claims and to any inconsistencies in that record in terms of the applicant's evidence to the Tribunal. The applicant was asked if he wished to comment or respond to the information and the applicant responded by thanking the Tribunal for all the information about his applications but did not know what to do because of his poor English and that he had paid people to write those applications. He said he was seeking to work in Australia.

18. The Tribunal raised with the applicant concerns that it had about his claims and about his evidence. The Tribunal told the applicant that it was concerned about the significant differences and inconsistencies between his claims in his first and second protection Visa application and that there was no mention in the first application of any of his current claims and no mention in his current protection Visa application of his former claims. The Tribunal noted the inconsistencies and variations in relation to his claims about his "[Relative 1]"/claimed adopted [Child] and that the birth certificate provided indicated that person was his biological [Child] and was not adopted and was also concerned about the letter of support received from "[Relative 1]". The Tribunal said that it was very concerned about the overall credibility of the applicant's claims and that he had effectively blamed other people for the inconsistencies/variations in his claims in his protection Visa application. The Tribunal referred to the very significant inconsistencies in the applicants claims and the variations between his evidence and his written claims. The Tribunal said that it doubted that there were substantial grounds for believing that there was a real risk of significant harm for the applicant if he returned to Fiji.

19. The applicant in response said that he asked for forgiveness for the misleading information which he said had been provided by other people.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. On the basis of the materials and information provided to the Department and to the Tribunal the Tribunal accepts that the applicants are Fijian citizens and that their identity is as they claim it to be. Without evidence to the contrary the Tribunal accepts on the basis of the evidence and information before it that the second named applicant is a member of the same family unit as the first named applicant. The Tribunal accepts that on the basis of the information and materials provided, and without evidence to the contrary, that the applicants do not have a right to enter or reside temporarily or permanently in any other country apart from Fiji. The Tribunal accepts that Fiji is the applicants receiving country for complementary protection purposes.

21. The Tribunal is not satisfied on the basis of the evidence and materials before it that the applicant's face a real risk of significant harm should they be returned from Australia to Fiji. The Tribunal is also not satisfied as the first named applicant's credibility in relation to some aspects of his evidence and to some aspects of his claims.

22. The Tribunal has referred elsewhere in these reasons to the first named applicant's claims. In essence the first named applicant claims to fear harm from his [relatives] if he returned to Fiji. He claimed that was because he had been involved in an affair that had produced a [Child] who died and that he had disclosed that to his wife. He then claimed that he was assaulted by his wife's [relative]'s and evicted from his [property] .He also claimed that his wife's [relatives] were in essence jealous of his success on his [property]. As indicated elsewhere in these reasons the applicant's evidence to the Tribunal about details of the claimed affair and the birth of the [Child] and the dates of the claimed disclosure to his wife and eviction from the [property] varied very significantly from his written claims in his protection Visa application. In the Tribunal's assessment the applicant could not indicate or explain why the claimed events in 1984 triggered the events that he claimed happened in April 2000. As indicated in his protection Visa application the applicant claimed that he had been involved in an affair in 2000 and the [Child] had died in May 2002. In his evidence to the Tribunal the applicant claimed that the affair had occurred in 1984 and the [Child] had died in 1984. He could not produce any documentation to support his claims surrounding the birth and death of that [Child]. He could only tell the Tribunal that the woman with whom he had had an affair was called "[Ms A]" and he did not provide any other details about her in terms of her identity.

1. He claimed in his protection Visa application that his wife had pursued and threatened him about assigning the lease of the [property]. He claimed in that application that his wife had also threatened his [Relative 1]. He claimed those threats were all related to the assignment of the lease. In his evidence to the Tribunal he said that he did not fear any harm from his wife and that his wife had not threatened him. He also claimed in his application that his wife was a relative of [a government official] and was using that relationship to threaten the applicant and the applicant's [Relative 1]. He told the Tribunal in his evidence that he was unaware if his wife was related to the [official]. He said his only fear of harm in Fiji was from his wife's [relatives]. He did not fear Fijian authorities. He had not reported the claimed assault by his wife's [relatives] on him to the police and he did not attend hospital to get any medical treatment for the claimed assault. He claimed to the Tribunal that he had not reported the assault to the police because that would be a lengthy process and he decided to flee Fiji instead. However his evidence to the Tribunal was he remained in Fiji for at least two years after the claimed assault in April 2000 before coming to Australia in August 2002 and that does not appear consistent to the Tribunal in terms of explaining why he did not report the claimed assault to the police.

2. The Tribunal has also referred to the significant variations in the applicant's claims in his first protection Visa application and the claims made in his second protection Visa application. In essence the applicant blamed people who he said he had paid to complete those protection Visa applications with supplying false/misleading/incorrect information about his claims. He blamed his poor understanding of the English language for the inconsistencies/misleading comments/false information. As indicated the applicant signed both protection Visa applications. Both applications contain detailed personal information about the applicant that could only have been provided by the applicant. The Tribunal notes that the applicant attended an interview with the Department delegate in relation to his claims. As indicated the Tribunal questioned the applicant about the delegate's record of decision which the applicant said he had not read. The Tribunal referred the applicant to the delegate's findings in relation to the applicant's protection Visa application. The applicant on several occasions during the Tribunal hearing blamed other people for having provided the incorrect/false information in the protection Visa applications. He claimed to the Tribunal that he thought his first protection Visa application which was made in 2002 was an application for a tax file number.

3. the Tribunal also referred the applicant during the hearing to the letter of support provided by the person described as his "[Relative 1]". That letter repeats many of the factual details and including dates that the applicant made in his second protection Visa application. When these issues were raised with the applicant the applicant said he disagreed with details provided in the claimed [Relative 1]'s/adopted [Child]'s letter. The applicant was otherwise unable to explain why the details in that letter closely reflected the claims made in his protection Visa application and which he claimed provided incorrect details.

4. The Tribunal has considered the totality of the applicant's claims and the applicant's evidence and has referred to the inconsistencies and variations between the written claims and the applicant's evidence to the Tribunal. The Tribunal's overall assessment of the evidence and information before it is that the first named applicant is not a credible witness. The Tribunal does not accept that the Tribunal's assessment of the applicant's credibility is because he claims he has a poor understanding of the English language and that he was manipulated by people who he had paid to complete his two protection Visa applications. As indicated the Tribunal notes that the applicant provided significant personal details in both protection Visa applications. He signed both applications and said that he was involved in  conversations with the people who completed those applications. The Tribunal notes that the applicant had previously made a protection Visa application in 2002 which was unsuccessful and that demonstrates that the applicant had a knowledge of the migration system and protection Visa application prior to his current protection Visa application.  The applicant's migration history in Australia also indicates to the Tribunal that the applicant had a knowledge of the migration system prior to bringing his current protection Visa application. The Tribunal after considering the totality of the evidence and its assessment of the applicant's credibility rejects the applicants claim that he thought his first protection Visa application was for a tax file number. The Tribunal's assessment is that claim is not credible when considered in the context of the information that was provided in support of that application. The Tribunal also considers that its assessment of the applicant's credibility and the significant variations between the applicant's evidence to the Tribunal in relation to his current claims and the information provided in the protection Visa application causes it to not accept the applicant's claims that he fears harm from his wife's relatives if he returned to Fiji. The Tribunal notes that the lease document indicates that the applicant's interest in the leasehold ceased in 2013. The Tribunal also notes that the applicant told the Tribunal that he still from time to time provides financial assistance and support to his wife in Fiji. The Tribunal also notes that the applicant told the Tribunal that he believed that he would be able to get effective state protection in Fiji from the Fijian police if he had any difficulties with his wife's brothers.

5. The Tribunal on its assessment of the overall evidence and information that it has considered and discussed together with its assessment of the applicant's credibility does not accept the applicant's claims that he was involved in an affair in Fiji and that affair produced a [Child] who subsequently died. The Tribunal also does not accept for the same reasons that the applicant and his wife quarrelled over his disclosure of this affair and that he was assaulted and harmed by his wife's [relatives] and forcibly evicted from his [property]. The Tribunal does not accept for the same reasons that his wife subsequently threatened harm to the applicant and to the applicant's [Relative 1] in relation to the assignment of a lease or that his wife's [relatives] had continued to look for the applicant after he came to Australia or that his wife had threatened to use her family relationship with [a government official] to harm the applicant or his [Relative 1]. The Tribunal notes that on the applicant's evidence he claimed that he was evicted from the [property] in April 2000 and operated a [business] in Fiji to raise funds to come to Australia in August 2002. He did not suggest to the Tribunal that he suffered any harm from his wife's [relatives] when he remained in Fiji for over two years and operated a [business] during that period before coming to Australia. He told the Tribunal that it was embarrassing to see his wife's [relatives] in Fiji and that's why he thought he should come to Australia. As indicated he did not suggest that he had suffered any incidents of harm from his wife's [relatives] while he remained in Fiji and operated his [business] for over two years.

6. The Tribunal based on its assessment of the overall information and evidence and its assessment of the applicant's credibility  does not accept that the applicant adopted his [Relative 1]. The documentation that has been referred to in relation to the birth certificate provided by the applicant does not indicate or suggest that the applicant had an adopted [Child] but rather that the person described as his [Relative 1]/adopted [Child] is in fact his biological [Child]. The Tribunal's overall assessment of the information before it is that the person described as his [Relative 1] is the applicant's biological [Child].

7. The Tribunal's overall assessment is that the applicant wishes to remain in Australia because he is "happy in Australia" and he has received good medical treatment in Australia. He also wants to work in Australia.

8. As indicated he told the Tribunal that he was concerned if he returned to Fiji that he would not be able to work and he may not be able to get medication for his medical conditions and he might be a burden on his [Adult child]. The Tribunal has referred to the information contained in the DFAT country report which indicates that Fiji has a comparatively high life expectancy and that reflects higher than average health outcomes. The report indicates that the government provides generous public health services and including free primary and secondary healthcare but other support services are not generally subsidised. The country report also indicates that there are four main hospitals in Fiji and three of those are state funded institutions. Report also indicates that Fiji spent approximately 3.8% of its GDP on health in 2011. The report also indicates that Fiji has high levels of youth unemployment and that the official unemployment rate was approximately 8.3% in 2012.

9. The applicant said that he feared that he may not be able to obtain work in Fiji and that he did not believe that he would be able to engage in [work] because of his medical difficulties. However the applicant also told the Tribunal that he would like to remain working if he is allowed to remain in Australia. That evidence indicates to the Tribunal that the applicant is keen to continue to work. As indicated the applicant had provided documentation to the Department to support being allowed to work in Australia. The Tribunal acknowledges the evidence that the applicant has had some difficulties related to [medical] conditions  since been in Australia and he has received treatment for that/those condition/s. However the Tribunal's overall assessment of the DFAT country report information that has been referred to is that it is reasonable on the basis of that information for the Tribunal to assume that both applicants health conditions could be appropriately addressed if they were to return to Fiji. The applicant told the Tribunal that if he had to return to Fiji he would live with his [Adult child]. That evidence and information indicates that it is reasonable for the Tribunal to assume the applicant would enjoy some family support if he and the second named applicant to return to Fiji. The Tribunal also believes on its assessment of the evidence and information before it that any risks that the applicants may face if they returned to Fiji would be risks faced by the Fijian population generally and not by the applicants personally.

10. The Tribunal has considered the applicant's claims both individually and cumulatively and has considered the totality of the evidence and other available information in relation to the claims. The Tribunal has considered whether the applicant is at a real risk of significant harm if he returned to Fiji from Australia. The Tribunal has considered the definition of significant harm contained in the Act. It has also considered the relevant definitions contained in s.5(1) of the Act. As indicated for the reasons that have been considered and discussed the Tribunal does not accept the applicant's claims to fear harm if he returned to Fiji.

11. The Tribunal has considered the applicant's claims and is not satisfied on the basis of its assessment of the evidence and information before it and its assessment of the applicant's credibility that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk that he will be subjected to significant harm.

    Overall Summary

12. 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)(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

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

    James Jolliffe
    Member