1503356 (Refugee)

[2018] AATA 3086

1503356 (Refugee) [2018] AATA 3086 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503356

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Brendan Darcy

DATE:13 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 13 June 2018 at 5:47pm

CATCHWORDS
Refugee – Protection visa – Fiji – Political opinion – Supporter of the Fiji Democracy Freedom Movement (FDFM) and Soqosoqo Duavate no Lewenivanua (SDL) – Credibility issues – Vague details about political events – No real risk of serious harm – Members of the same family unit – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48A, 65, 91R, 91S, 424A, 499
Migration Regulations 1994 (Cth), r 1.12 Schedule 2

CASES
AMA15 v MIBP [2015] FCA 1424
Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MZZIA v MIBP [2014] FCCA 717
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZGIZ v Minister for Immigration and Citizenship [2013] FACFC 71

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 the Republic of the Fiji Islands (Fiji), applied for the visas on 14 August 2013 and the delegate refused to grant the visas on 3 February 2015.

3. In this decision the first named applicant [is] referred to as the first applicant; the second named applicant [is] referred to as the second applicant or the first applicant’s wife; the third named applicant [is] referred to as the third applicant; the fourth named applicant [is] referred to as the fourth applicant; the fifth named applicant [is] referred to as the fifth applicant; and the sixth named applicant [is] referred to as the sixth applicant.

4. The applicants appeared before the Tribunal on 21 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a witness claiming to be the first applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian (iTaukei) and English languages. The applicants were represented in relation to the review by their registered migration agent.

   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.

   Refugee criterion

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. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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 (the Department) – 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.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spousal relationships and dependent minors.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Background

22. All the applicants claim to be citizens of the Republic of the Fiji Islands.

23. All the applicants, except the sixth applicant, claim to be born in Fiji and copies of their valid passports issued by the relevant Fijian authority are on Departmental [file].

24. According to their passports, the first applicant claimed to have been born in [Town 1] in Fiji on [date]; and the second applicant claimed to have been born in [Town 2] in Fiji on [date]. 

25. According to their passports, the third applicant, who is female, was born on [date], the fourth applicant, who is male, was born [date], and the fifth applicant, who is male, was born on [date].

26. It is claimed on behalf of the sixth applicant that she was born on [date] in [Australian Town 1] in [State 1].

27. The first and second applicants claimed to have married while in Fiji [in] 2004 and they claim to be the biological parents of the third, fourth, fifth and sixth applicants. A certified copy of a marriage certificate was submitted as part of the applicants’ original protection visa applications.[1]

    [1] [Department file] Folio 17.

28. The first applicant had previously been married and this marriage is the second applicant’s first.

29. The applicants’ religion is claimed to be Methodist, a Protestant Christian denomination.

30. The first and second applicants claimed to be able to speak, read and write English and Fiji (iTaukei).

31. The first applicant claimed he has resided in [a] village in [Town 1] between February 1999 and December 2010, that he has a son born on [date] in Fiji and who currently resides in Fiji, and that he has a mother who resides in Australia and is an Australian citizen. 

    Visa history

32. The first applicant, according to movement records, first arrived in Australia on 3 October 1998 before departing on 30 October 1998; then returned on 22 November 2008 before departing on 24 January 2009; then arrived in Australia for a third time on 25 December 2010 while holding a class TR subclass 676 visitor visa. Between 25 March and 28 March 2011 the first applicant did not hold a valid visa. On 28 March 2011, the first applicant was granted a bridging visa. The first applicant applied for a class XA subclass 866 protection visa protection visa on 28 March 2011.

33. The second, third, fourth and fifth applicants arrived in Australia on 25 December 2010 while holding visitor visas before being granted associated bridging visas with their class XA subclass 866 protection visas application on 28 April 2011. It is noted that between 25 March and 28 April 2011 the first applicant did not hold a valid visa.

34. From the date of their protection visas being lodged initially on 28 April 2011, the first, second, third, fourth and fifth applicants have not departed Australia.

35. The applications for protection and the written reasons by the first applicant are in the Departmental [file].

36. The applicants’ written claims are contained in the first applicant’s 866 form and are summarised below: [2]

    ·     The first applicant and his family are members of the Methodist Church and strongly support the Soqosoqo Duavata ni Lewenivanua (SDL) political party in Fiji;

    ·     The first applicant supports the Great Council of Chiefs (GSCC), and its political stature and role which is now banned in Fiji;

    ·     The first applicant is originally from [Town 1] where [details deleted];

    ·     The first applicant, as an employer at [a workplace] for [a particular section] for ten years, had become uneasy when soldiers took employment positions in his department. The first applicant subsequently resigned from the [workplace] and wrote in his resignation that he was unhappy about the recruitment of soldiers into that [section];

    ·     The first applicant claims he will be targeted by the military if he returns to Fiji.

    [2] [Department file] Folio 14-16.

37. On file is a letter claiming to be the first applicant’s mother [to] support the applicants’ application dated 22 May 2011 because the first applicant is her only child and her only remaining relative.[3]

    [3] [Department file] Folio 42.

38. On file is another letter claiming to be by the first applicant stating that he had to resign from his employment in Fiji as [Occupation 1] at [a workplace]. The applicant claimed that members of the military personnel have taken higher ranks than his own and that there was no future for the applicant in the first [section] back in Fiji.  It is added that when the first applicant came know that his mother was facing carpal tunnel syndrome he came to Australia to support her as his mother’s only remaining relative.[4]

    [4] [Department file] Folio 43.

39. The Department assessed the applicants’ claims and made its refusal decision on 26 August 2011; thereafter the applicants applied to the Tribunal, previously constituted, on 14 September 2011 to have the decision reviewed.

40. The Tribunal affirmed the delegate’s refusal decision on 23 March 2013. That decision included a number of adverse credibility findings.

41. Both the delegate and the Tribunal made its refusal decisions with regard to the Refugees Convention.

42. On 24 April 2012, the applicants requested the Minister to personally intervene. The Minister declined to intervene on 20 August 2012.  The applicants made a second request on 26 October 2012; the applicants were notified by the Department that further request for Ministerial interventions are not warranted; the Department had assessed their case and it would not be sent to the Minister.

43. Due to the Federal court decision SZGIZ v Minister for Immigration and Citizenship [2013] FACFC 71 (3 July 2013) (SZGIZ), the applicants were deemed able to make further protection visa applications. On 13 August 2013, subsequent protection visa applications were lodged by the applicants. This included the sixth applicant who was born after the earlier protection visa applicants were lodged.

44. The first applicant provided a written statement for his claims on behalf of all the applicants.[5] A summary of those claims dated 2 December 2014 are below:

    ·The first applicant claimed that since the military took power in Fiji, the country has no longer been safe for its citizens; that its citizens are not allowed to speak against the government and they are threatened with torture and physical harm; and that the first applicant and his wife were not allowed to speak out against the regime;

    ·For the betterment of the first applicant’s family, it is claimed that the applicants escaped to Australia. In Australia, they are free to express their opposition to the Fijian military government.

    ·The first applicant claimed that he joined the Fiji Democracy Freedom Movement (or FDFM) which opposes the Bainimarama-led government. This was done on the very first day the applicants set foot in Australia.

    ·As active members of the FDFM, the first applicant is certain that if they return to their country he would immediately fall into the hands of the armed forces at the very port of entry at [Town 1] Airport, and he will be questioned about his FDFM involvement and his involvement in acts deemed unlawful, because of decrees which prohibit Fijians from criticising and attacking the government while overseas.

    ·The first applicant claimed that Fiji is far from being democratic following the recent general election, as there remain human rights violations and the military is used to cracking down on opponents.

    ·The first applicant claimed to fear there is no real protection to be sought from the police or the courts as they are controlled by the government.

    ·The first applicant claimed that he will not be able to move to other parts of the country to seek safety and he will be arrested and interrogated on arrival.

    ·The first applicant, as an active FDFM member, has attended every meeting of his branch and attended the burning of the 2013 Fiji Constitution which was held at Canberra; and that he attended the FDFM GMS in Sydney and joined the protest against Bainimarama’s visit to Australia.

    [5] [Department file] Folio 136.

45. The applicants’ representative submitted a legal submission on 1 December 2014 that the applicants had cumulative reasons that they were owed Australia’s protection obligations based on their political opinion (opposition to the military government), and their memberships of particular social groups (Fijians who stay in Australia after expiration of their visas without returning to Fiji and Fijians who are failed asylum seekers on the basis of political violence). The submission also states there is no meaningful reasonable for relocation or obtaining the effective protection from the Fijian authorities are not meaningful options. The submission cites references to eight Tribunal decisions relating to political opinion and a number of other decisions relating to relocation and effective protection.[6] 

    [6] Decision dates covered 2009, 2010, 2011 and 2012.

1. Also submitted were letters from [a named person] from the FDFM dated [December] 2013 indicating that the second applicant is a member of the [Australian Town 2] branch of the FDFM and another letter dated [September] 2014, indicating that the first applicant has been a member of the FDMF in [Australian Town 2] and had attended a rally in Sydney organised by FDFM.[7] Attached were photographs of protests in Canberra in September 2013 and Sydney 2014.[8]

   [7] CFL[number] Folio 134-135.

   [8] CFL[number] Folio 123-124; 131-133.

2. Also attached was a letter from the FDFM [State 1 official] dated [October] 2013, indicating that the applicant had been a paying member of the FDFM in [Australian Town 2] since 2012.[9]

   [9] CFL[number] Folio 129.

3. The applicants attended an interview on 9 December 2014. The Minister’s delegate notified the applicants of the delegate’s decision to refuse to grant the protection visas on 3 February 2015. 

4. The applicants applied to have the delegate’s refusal decision reviewed by the Tribunal on 9 March 2015. Although the notification letter was attached, the decision record itself was not attached.

5. The applicants’ representative submitted a number of letters, certificates of appreciation and photographic evidence that the applicants are active participants in sports, social and cultural activities in [Australian Town 2].[10]

   [10] AAT Folio 46-50.

   Evidence at the scheduled hearing

6. The applicants attended a scheduled hearing on 21 February 2017 to give evidence and present arguments that they are owed Australia’s protection obligations. They were supported by a representative and an interpreter in the English and Fijian languages.

7. Also present was a witness [who] claimed to be the first applicant’s mother living in [Australian Town 1] in regional [State 1]. The witness claimed to have come from a poor Fijian family and that she arrived in Australia in 1982 for a new life. She further claimed she became an Australian citizen in 1998. She claimed that she only has one son, that her brothers took their ancestral land from her, that her son has no land back in Fiji, that there is no future for her son and grandchildren in that country and that they are now integrated into the community in Australia. She claimed she fears the army will take him if the first applicant returns as he has a bad record with the authorities due to his membership of the FDFM.

8. The applicant’s representative argued during the hearing that pro-Fiji First operatives or informants in Australia monitor other Fijians for anti-government activities or views and relay their names to the authorities. He added that if the applicants were to return to Fiji, the first applicant faces a real chance or a real risk of being detained, interrogated, tortured, imprisoned and having his life arbitrarily deprived (but not capital punishment).

9. On 22 February 2017, the Tribunal formally wrote to the applicants regarding adverse information that was raised during the hearing, and to respond to this invitation to comment by 8 March 2017. Below is an extract of that correspondence :

   FDFM Involvement

   There is also no mention of any of the applicants’ membership the Fiji Freedom Movement (FDFM) in the applicants’ original protection visa application file and in the Decision Record (RRT number: 11909606; dated 22 March 2012) by the Tribunal, differently constituted, which affirmed the Department’s decision not to grant the applicants protection visas. There is also no mention of any of the applicants’ membership of this same membership in the submission for the applicants’ request for a Ministerial Intervention. [11]

   However the Tribunal noted that in the first applicant’s written statement dated 2 December 2014 that you claimed:

   Due to the unfair and inhuman treatment we have received from the Bainimarama-led government, we opted to join the FDFM so that we can raise our voices and express our opinion in opposition to the Bainimarama-led government. His was done the very first day we set foot in Australia.  [12]

   Related to this information is the information in the delegate’s decision record regarding these protection visas under review. It states:

   When question about the FDFM at their PV interview, the applicants stated that they joined the FDFM in its early days, on their last arrival in 2010. However, they later stated they there were only registered’ as members later in 2012. They stated that they have been involved in protests and meetings around Australia.

   [11] CLF[number] DIBP Folio 144-162; Folios 167-229.

   [12] CLF[number] DIBP Folios 136.

   The Tribunal notes as adverse information that the same decision record stated that the applicants claimed they were afraid of mentioning their FDFM memberships. The delegate made an adverse finding that had the applicants had such a strong fear of harm on the basis of their FDFM association they would have raised it earlier and found the claimed reasons for this omission to be unconvincing.

   The applicants have also submitted a membership letter from the [State 1] President of the FDFM dated [October] 2013. The letter indicates the first applicant had been a member of the FDFM since 2012: “I write to confirm the membership of [the first named applicant] as a paying member of the Fiji Democracy Freed Movement [Australian Town 2] Sub-branch since 2012”.[13]

   When this specific matter was raised in the Tribunal, the applicant responded that he was not aware of writing that part of the statement that he was a member of the FDFM soon after his arrival in Australia and was unaware that it was raised during the departmental interview on 9 December 2014?

   Could the first applicant explain to the Tribunal the reasons the first applicant mentioned his membership and involvement with FDFM since his arrival in 2010 in the 22 December 2014 statement but did not mentioned earlier to the Department or the Tribunal as part of the applicants’ original protection visa application? Could this first applicant explain the discrepancy between his written statement and that in the letter from the [State 1] President of the FDFM? Could the first applicant explain to the Tribunal why he was not aware of this significant element to his written statement dated 2 December 2014 during the scheduled hearing? 

   The response to this question may be relevant to the Tribunal’s findings that the first applicant’s statement in this respect was not credible and that his membership was much more recent than stated in his written statement. 

   Soqosoqo Duavate no Lewenivanua (SDL)/ SODELPA

   The delegate’s decision record date 3 February 2015 indicates that that the applicant have not been involved in the SDL or SODLEPA since coming to Australia in 2010 and that the delegate accepted that the applicants may have seen little value in remaining a members since arriving in Australia.

   When the Tribunal asked questions about recent political developments in Fiji such as the current name of the party formerly known as SDL; the current leader of the party the first applicant; and what year was the election in which the first applicant claimed to have campaigned for SDL, he was unable to answer.  The Tribunal also notes that the first applicant struggled to elaborate how he assisted the SDL in its campaigning.

   This information in the context of the first applicant’s responses during the scheduled hearing, including his limited knowledge of recent political events in his country of reference, may indicate to the Tribunal that the applicant was never a member of the SDL in the past or that there is no real risk of significant harm arising from this past membership, given the passage of time or on the basis of his very low profile. 

   [13] CLF[number] DIBP Folios (back of) 129.

   No home in Fiji

   The Tribunal notes that in the written request by the first applicant dated 23 May 2012 to the Minister to personally intervene in the applicants’ case seeking the grant of permanent visas it was stated the following:

   “I have already mentioned that my wife and I have no employment to return to Fiji and that our house in [Town 1], one of the most severely affected areas in the country, was severely damaged during the recent flood crisis Our home was filled with water to approximately head-height meaning all our furniture and possessions were destroy. I have attached some photos as evidence of this.” [14]

   While there is country information that there were floods [in] April 2012 in the wake of Cyclone Daphne,[15]  the Tribunal notes that his 2012 damage was not mentioned during the scheduled hearing by the first and second applicant or the witness. The Tribunal also notes that the witness of the applicants mentioned during the scheduled hearing that there house was destroyed by Cyclone Winston which occurred in 2016.

   This may be relevant to the Tribunal as the apparent inconsistent evidence between the witness and the Ministerial Invention regarding the destruction of the applicants’ home has invited the Tribunal to consider that the applicants’ usual place of residence had not been severely damaged as claimed; that the claim was a contrivance; and that they would not return to [Town 1] in Fiji without accommodation. Could the first or second applicant explain to the Tribunal the reasons it was claimed that their house of residence had been destroyed in two separate incidents and what emphasis should the Tribunal place on this apparent inconsistency? Could the first and second applicant outline to the Tribunal the reasons it be unreasonable, in the sense of being impracticable, in relocating to another part of Fiji for work or accommodation?

   The Tribunal also welcomes any further country information or evidence that that the applicants are owed Australia’s protection obligations in responding this invitation to respond/comment. 

   The Tribunal takes this opportunity to state that it has significant concerns that the first and second applicants do not have a real risk of significant harm if they return to Fiji as the applicants have been unpersuasive that they are interested in ongoing anti-regime or pro-opposition activities, as claimed, if they were to return to Fiji. 

   It also has concerns that the chance or risk of economic hardship to be faced by the applicants would not amount to being a real chance of serious harm for a Convention reason or a real risk of significant risk as required by s.36(2A), as necessary and foreseeable consequence of being removed from Australia to their country of national and reference.

   [14] CLF[number] DIBP Folio 216.

   [15] Lindy Kerin, ‘Fiji begins clean-up after massive floods’, ABC News (online) 3 April 2012 <>

   On 8 March 2017, the applicant wrote to the Tribunal addressing each of these concerns along with some additional country information, media reports and an Amnesty International report, Fiji: A darker side of paradise, dated 4 December 2016.

10. The applicants’ representative also provided a legal submission stating that country information supports the claim that the sedition laws are used regularly against dissidents and even members of parliament and that political violence is so severe towards active and perceived political opponents that Fiji is reverting to dictatorship. It also claims that prison conditions are harsh and overcrowded; that military and police brutality is a significant problem; and that the government continues to have zero tolerance against political activists, including among the Fijian diaspora. It is in this climate of fear that the applicants will be singled out due to their overseas political activities leading to a real chance of persecution or a real risk of significant harm, if they were to be returned to Fiji.[16]

    [16] AAT Folio 182-185.

11. On 30 March 2017, the applicants’ representative forwarded some country information on behalf of the applicants. This included a media report from the Fiji Times (no date) in which the Prime Minister Bainimarama claimed to track down Fijians abroad who are plotting against the state.

12. No further submissions or documents regarding the applicants’ claims they are owed Australia’s protection obligations were received up to the time of making this decision.

    Non-disclosure certificates

13. There are no certificates of non-disclosure on the Department’s file.

    ASSESSMENT OF CLAIMS AND FINDINGS

    Country of reference

14. All of the review applicants, except the sixth named applicant, provided certified copies of their valid passports which were on Departmental file.[17]  Those passports were issued by the Republic of the Fiji Islands.[18] Based on these documents and without evidence to the contrary, the Tribunal finds that those applicants are citizens of the Republic of the Fiji Islands; that the Republic of Fiji is that applicants’ country of nationality for the purposes of the Refugees Convention, and that Fiji is their receiving country for the purposes of complementary protection.

    [17] CFL[number] Folio 75-91.

    [18] [Department file number] Folio 66.

15. It is claimed by the first and second applicants that the sixth applicant is a citizen of the Republic of the Fiji Islands, but was born in Australia and has never visited or resided in Fiji.  On the Departmental file is a copy of a birth certificate of the sixth applicant, indicating she was born in [State 1]. The certificate was issued by the relevant agency in [State 1].[19] There is also a copy of an application for Fijian citizenship on behalf of the sixth applicant on the Tribunal’s file.[20] The birth certificate indicates the first applicant is the father and the second applicant is the mother of the sixth applicant. The first and second applicants do not claim they are Australian citizens or permanent residents or eligible New Zealand citizens. With no evidence to the contrary, the Tribunal accepts that the sixth applicant is a citizen of the Republic of the Fiji Islands. For the purposes of the Refugees Convention, the sixth applicant’s country of nationality is Fiji. As the Tribunal has found that the applicant is a national of Fiji, the Tribunal also finds that Fiji is the applicant’s receiving country for the purposes of s.36(2)(aa).

    [19] CFL[number] Folio 92.

    [20] AAT Folio 124-129.

    Membership of the family unit

16. At the time of the protection visa application, the first applicant claimed the second applicant to be the first applicant’s spouse. Submitted to the Department was a copy of a marriage certificate indicating that the first and the second applicants were married [in] 2004 at the [Town 1] Registry in Fiji.  With no evidence to the contrary, the Tribunal accepts that the first and second applicants are in a genuine spousal relationship and satisfy cl.1.12(4)(a) of the Regulations.

17. The first and second applicants claim that the third, fourth, fifth and sixth applicants are their biological children. Certified copies of birth certificates from Fiji for the third, fourth and fifth applicants can be cited in CLF[number].[21]  A copy of the birth certificate of the sixth applicant that was born in Australia can be cited in CLF[number].[22] All certificates state the biological father of these applicants is the first applicant, and the biological mother of these applicants is the second applicant.

    [21] CLF[number] Folio 13-15.

    [22] CFL[number] Folio 92.

18. Under cl.1.12(4)(b) of the Regulations, a person can be considered a member of the principal applicant's family unit if the person is a dependent child of the family head or of a spouse or de facto partner of the family head.  Clause 1.05A(2) defines a dependent, for the purposes of a protection visa application, as a person who is wholly or substantially reliant on the other person for financial, psychological or physical support.

19. Given the third, fourth, fifth and sixth applicants are minors and based on the information before it, including the above mentioned birth certificates, the Tribunal accepts these subsequent applicants are wholly reliant on their biological father who is the first applicant for financial, psychological or physical support, as well as their biological mother who is second applicant and the first applicant’s spouse. For these reasons, the Tribunal finds that the third, fourth, fifth and sixth named applicants are members of the same family unit as first applicant and satisfy cl.1.12(4)(b) of the Regulations.

    The effect of SZGIZ and its relevance to this review

20. Section 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ has held at the operation of s.48A, as it stood at the time of the visa applications for the first, second, third, fourth and fifth applicants, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. In other words, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone.

21. The Federal Court in AMA15 v MIBP [23] upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

    [23] [2015] FCA 1424.

22. Applying the above reasoning to each of the applicant’s claims:

    a)The application of the first, second, third, fourth and fifth applicants are ‘SZGIZ-affected’ as they have not left Australia since the final determination of their first applications, which preceded complementary protection laws. Pursuant to SZGIZ, as the first, second, third, fourth and fifth applicants have previously had their claims for protection assessed under s.36(2)(a), applying the reasoning in SZGIZ the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it must confine its consideration of the applicants’ claims to whether they satisfy the ‘complementary protection criterion’ in s.36(2)(aa) of the Act.

    b)This is the first occasion protection claims for the sixth applicant have been considered, therefore his application is not SZGIZ-affected. The Tribunal will assess her claims against the Refugees Convention (and not newer refugee status criterion that came into effect on 14 December 2014) and complementary protection criteria.

    Credibility

23. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.    

24. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’: Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196. However, the Handbook also states (at para 203): 

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

1. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

2. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[24]

   [24] See MIMA v Rajalingam (1999) 93 FCR 220.

3. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[25]

   [25] See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

4. The Tribunal has also considered the published guidelines of the Administrative Appeals Tribunal in relation to credibility[26]:

   9. Findings made by the tribunal on credibility should be based on relevant and material facts. What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.

   10. The tribunal should make clear and unambiguous findings as to the evidence it finds credible or not credible and provide reasons for such findings.

   11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. If, on the other hand, the tribunal is able to make confident findings as to particular events, it is not obliged to consider the possibility that its findings of fact may not be correct.3 The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists.4 However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

   Preliminary credibility findings

   [26] AAT - Migration & Refugee Division, Guidelines on the Assessment of Credibility July 2015

5. The Tribunal finds the following evidence, including oral evidence from the applicants and the evidence on Departmental file, was consistent and credible in a limited number of critical aspects. Accordingly, the Tribunal accepts the following:

   ·The first applicant was born in [year] in [Town 1] and that the second applicant was born in [year] in [Town 2] and that the first and second applicants lawfully married to each other;

   ·The first applicant’s father and siblings are deceased, while his mother moved to Australia in 1985;

   ·The third, fourth and fifth applicants are minors born in Fiji and the sixth applicant was born in Australia;

   ·All the applicants identify as Indigenous Fijians;

   ·The first and second applicant identify as belonging to the Methodist denomination of Christianity, although they and their children attend [a church] in [Australian Town 1];

   ·The first and second applicants both completed secondary college education and they can both speak, read and write in English and Fijian (iTaukei);

   ·The first applicant came to Australia in 1985 to visit his mother. He visited in the 1990s [and] then arrived with the second, third, fourth and fifth applicants in 2010 before applying for a protection visa in 2011; and

   ·The second applicant first arrived in Australia in 2005 on a visitor visa. She had worked in [a certain] sector in the past.

   First and second applicants’ political opinion claims

6. At the scheduled hearing, the first applicant claimed that the political climate in Fiji deteriorated after the 2006 coup and that he and his family were personally affected when he lost his employment in [the workplace]. The first applicant elaborated that he worked at [the workplace] first as [Occupation 1], then as [another occupation], then as a senior [Occupation 1] before being promoted to acting [manager]. The applicant claimed the [senior roles] were arbitrarily allocated to army officials over those typically employed by [the workplace]. The applicant claimed that the army wanted to control the [workplace] and wanted the senior positions for their own personnel. Similar replacements occurred at other [organisations] throughout Fiji in those roles pertaining to [certain tasks] and relatedly claimed that others he knew were affected and mentioned some names, some of whom came to Australia while others remained in Fiji.

7. The Tribunal enquired whether the first applicant formally applied for the position of [manager], to which the applicant replied that he did not. The first applicant also said that he did not lodge any complaint about the army taking the role.  The Tribunal enquired if the applicant had considered trying to apply for roles in other industries in Fiji, such as in hospitality, telecommunications or the health sector to which the applicant responded that he had made up his mind to leave for Australia as he had no desire to work in anything else other than [in his current industry], and that the army even took senior roles in the health and hospitality sectors, according to what he had been told.

8. In considering the credibility of the applicant’s employment history and then losing it to the army, the Tribunal notes that the Australian National University Press published essays in a book entitled The 2006 Military Takeover in Fiji in 2009. According to Jioji Kotobalavu, officials in the civil service, statutory bodies, public enterprises and other organisation lost their jobs, salaries were cut, and this created a heightened felling of insecurity. The regime ostensibly justified the measures as part of its campaign to eradicate corruption.[27]  While the Tribunal was unable to locate any specific information about the army in Fiji taking senior roles in [a range of] services in post-coup Fiji, it is not uncommon for military personnel to take senior roles under such circumstances and to do so arbitrarily in such febrile political environments as outlined in the availed country information. On balance, the Tribunal is willing to provide the applicant the benefit of the doubt that he was employed in [a workplace] in an acting senior role, that the applicant was not promoted, that a member of the military received that salaried role and that this experience coloured his political views about the government, pre-existing or otherwise.

   [27] Kotobalavu, Jioji. ‘Resolving the Current Crisis in Fiji – a Personal Perspective’, in Jon Fraenkel, et al. (ed), The 2006 Military Takeover in Fiji: A Coup to End All Coups? Vol. 4 (ANU Press, 2009) pp. 375–384 <>

   However, it does not accept the applicant lost employment in [a workplace].  In this regard, the Tribunal notes that the applicant’s own testimony was about being overlooked for promotion, not losing employment. Furthermore the second applicant claimed that when she departed for Australia in 2010 she believed that was to celebrate Christmas; however, her husband told her after they arrived that he was not promoted within [his] department.

9. During the hearing, it was discussed that Fiji has restored democracy as there were general elections in September 2014. The applicant expressed his doubts about democracy being restored noting that the Prime Minister, Mr Bainimarama, had been the same leader as the coup in 2006. The applicant was asked to recall the time of the Fiji election in broad terms; however, he was unable to remember or provide an approximate date at all. He was asked to name the ruling and opposition parties in Fiji; he was able to nominate Fiji First and the SDL and the leader of the opposition, Sitiveni Rabuka. However the first applicant could not recall the new name of the opposition party: the Social Democratic Liberal Party or SODELPA. The first applicant claimed he was a member of the SDL, that he voted for SDL in the past and that he picked people up for party meetings in the year of the last election before the coup; however, he could not remember the year of the election and did not have evidence of that membership. The applicant claimed that differences between the ruling and opposition parties were that the SDL wanted to restore indigenous common law and the role of the Council of Chiefs, while the Fiji First did not. The Tribunal asked for the reasons the first applicant did not depart until 2010 if the first applicant had been a member of the SDL in 2006; he responded that he kept the membership private and that he had never been singled out for threats due to his membership, although there were general threats against the SDL made in public. The Tribunal asked if he was a member of the SDL, why he had not been apprehended as a person of interest when he departed Fiji; in this regard, the applicant claimed he would not be trusted as a protester if he returned to Fiji. The Tribunal also noted the second applicant’s claims when she stated during the scheduled hearing that while she had never been involved in Fijian politics, her husband had been involved in picking up SDL supporters for gatherings.

10. Under s.424A of the Act, the Tribunal invited the first applicant to explain the reasons his vague testimony and limited knowledge about the SDL/SODELPA and recent events in Fiji. The first applicant claimed that he and the second applicant suffer from significant mental health issues and had trouble recalling names during the hearing, and that this did not diminish the authorities perceiving them to be members of the SODELPA by virtue of their participation in anti-government rallies since 2010. The Tribunal notes at no stage did any of the applicants nominate mental health symptoms until it received its s.424A response and that no medical documents from any medical professional or psychologist accompanied this response. Had they suffered from significant mental problems, it would have been reasonable to provide some earlier evidence or third party statement. In this regard, the Tribunal does not accept this specific claim about the first applicant struggling to recall key events and widely known facts about Fiji political parties because of mental health problems, as the Tribunal does not have any credible evidence to support it. While the Tribunal acknowledged the applicants experienced some distress in appearing before a Tribunal hearing, it does not accept the first applicant exhibited limited knowledge about current events in Fiji or was unable to recall the year in which he participated in election activities for the SDL due to this distress, or because he suffered from significant mental illnesses. Nevertheless, the Tribunal accepts the first and second applicant did exhibit some knowledge of Fijian politics and that they do have actual personally held anti-government political opinion. It is also accepted that the first applicant voted for the SDL in the past, and that the first and second applicant remain favourable disposed towards the SODELPA and its pro-democratic and pro-Indigenous platform, based on the available evidence.

11. However, the Tribunal remains troubled by the weak quality of the first applicants’ testimony and accordingly it does not accept the first applicant had ever been a member of the SDL in the past or had ever participated in SDL activities as stated in the written claims or the scheduled hearing. The Tribunal finds the first and second applicants embellished their written and oral evidence by claiming to be active members or supporters of this political movement, albeit, discreetly, in order to augment their otherwise credible claims that they will face a real risk of significant harm on the basis of their actual pro-opposition political opinions, if they were to return to Fiji into the foreseeable future.

12. During the scheduled hearing, the first applicant claimed that if he returned to Fiji he would fight for the rights of the people but he fears being arrested on arrival. The applicant claimed that he was now a person of interest due to his involvement in the Fiji Democracy and Freedom Movement (or FDFM) which he joined in 2013 or 2014 because ‘of the happenings in Fiji’.  He was able to name some of the members.

13. It was also discussed that he and the second applicant attended a protest in Canberra in September 2013, in which a copy of the Fijian constitution was burnt. It was acknowledged that this review application had photographic evidence to support their attendance. It was also claimed that the first applicant attended FDFM’s August 2014 AGM in Sydney and that he protested against the Prime Minister during his Australian visit at the same time.  The Tribunal enquired if the applicant was aware of any FDFM protesters being harmed on arrival to Fiji; the applicant claimed that he had heard a rumour from his pastor that a prisoner was killed although it was reported that he committed suicide, and the death was attributed to the Commissioner of Prisons who was also the brother-in-law to the Prime Minister.

14. During the scheduled hearing, the second applicant claimed she was involved in FDFM since 2012, that photographs of her and her husband at protests against the Fijian constitution and leaders are accessible through websites such as Fijileaks and that people back in Fiji have seen photographs of them. The second applicant further claimed that she and her husband will be both arrested on arrival for their anti-government political activities. When asked whether she had thought about the impact on her children if she were to return, she stated that she was not sure.

15. Based on the documentary and oral evidence and the third party evidence, the Tribunal accepts that first and second applicant attended anti-government rallies organised by the Fiji Democracy and Freedom Movement here in Australia.

16. However, as outlined in the s.424A letter, the Tribunal has some credibility concerns about the timing of their activities in the FDFM. While there is evidence the first and second applicants joined the FDFM in 2012 there is no credible evidence that they had joined as soon as they arrived or participated in meetings since 2010. In particular, the Tribunal found it lacking in credibility that the applicant would not mention this membership in his original application for a protection visa in April 2011. It does not accept the reasons for this omission provided to the Department or in the first applicants’ s.424A response that the applicants feared mentioning it, as interpreters or others would pass the information to the Fijian authorities, or they feared for their children’s safety, as his original claims were already highly critical of those authorities. Neither does the Tribunal accept it was overlooked due to any mental health problems. The Tribunal finds that the first and second applicants exaggerated the longevity of their membership with FDFM in order to augment their claims for protection.

17. Nevertheless, the Tribunal finds that the first and second applicants’ sur place FDFM activities were not solely for migration purposes as it did reflect their actual anti-government political opinions which are against the current Prime Minister and ruling Fiji First party and in favour of the SODELPA.

18. Based on the available country information, the Tribunal has considered whether the first and second applicants face a real risk of significant harm based on their political opinion, both actual and imputed, as formal member or supporters of the SDL or the SODELPA opposition party and the FDFM.  

19. Country information from DFAT suggests strongly that pro-democratic anti-Bainimarama activities by the FDFM or similar overseas-based groups are monitored:

    Post holds no specific information regarding the level of scrutiny the interim government levies over Pro-democracy groups based outside of Fiji, but it is reasonable to assume such groups would be of interest to the interim government. [28]

    [28] Department of Foreign Affairs and Trade 2013, CIS Request No FJI14666, Current situation for members of the Fiji Democracy and Freedom Movement (FDFM), 24 April <CX306596>

20. In this regard, the Tribunal accepts that there is a risk of the authorities having records of the first and second applicants participating in these rallies that is more than remote or far-fetched.

21. It is noted that the applicant’s representative provided considerable country information about the situation in Fiji where the authorities have abused their powers over a long period of time leading to significant harm, including the arbitrary deprivation of lives, torture and the cruel and inhuman treatment or punishment of fellow Fijians while in custody or imprisoned.

22. As stated during the hearing, DFAT stated that:

    According to our contacts, the organisers of the FDFM have not been targeted specifically on their return to Fiji. Nor have we been able to verify any instances where an individual has been targeted because of their involvement with FDFM. However, if an organiser upon return were then suspected of ongoing anti-regime activity in Fiji, then harassment, persecution and detention would likely follow. We also note there are relatively few Fiji-focused overseas pro-democracy groups. As with FDFM, we are not aware of any specific action having been taken against these groups in Fiji.

23. In March 2013, DFAT was asked whether their information from April 2010 regarding the FDFM having 'little traction' inside Fiji was still current. In a response dated 23 April 2013, DFAT stated that:

    This remains correct, the FDFM has not been vocal in recent times and we would suggest the FDFM has gained no further traction within Fiji. Since 2010 several other overseas based pro-democracy groups have increased the volume of blog reporting about events in Fiji. It is likely that these bloggers are in touch with members of the FDFM, are members of the FDFM, or are at least sympathetic to their cause, Amnesty International and our contacts within other missions and the UN Office for the High Commissioner for Human Rights (UNOHCHR) advise each is unaware of any increase in adherents to this group, or of any recent implications of its work. That said, there are opposition groups (such as women's rights NGOs and other civil society organisations, and opposition leaders) who are critical of the interim government and are known within Fiji to be subject to surveillance and scrutiny.[29]

    [29] Department of Foreign Affairs and Trade 2013, CIS Request No FJI14666 Current situation for members of the FYI Democracy and Freedom Movement (FDFM), 24 April <CX306596>

24. It was also discussed that the same 2015 DFAT report on Fiji assesses that senior members of opposition political parties (i.e. those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed, including through the judicial system. The Tribunal acknowledges that the first applicant’s apprehension regarding reports and rumours of people who have been tortured and even killed while in custody or imprisoned is credible, and that cronyism remains a problem in Fiji where people closely associated with the Prime Minister are protected from prosecution with regards to extra-judicial killings. Indeed the applicants provided some country information to support the rumour he had raised in the hearing.[30] The Tribunal also notes that DFAT assesses Fiji’s Human Rights and Anti-Discrimination Commission, established in 2009, to have little to no practical ability to provide state protection from human rights abuses.

    [30] Fiji opposition MP backs custody death inquiry, Radio New Zealand online, 22 February 2017. AAT Folio 180.

1. DFAT also assesses that individuals who are critical of the government now face a low risk of torture; however, events move fast in Fiji and it is conceivable for events to escalate quickly where torture could occur and not be known by the Australian High Commission.  The Tribunal also notes that capital punishment for ordinary crimes has been abolished in Fiji since 1979 and the death penalty was removed from the Military Code in 2015.

2. Furthermore, it is the assessment of the Tribunal that the government was legitimately elected in 2015, albeit under ongoing sedition and public order laws that curb debate and dissent. However, there is no evidence to accept that Fiji is reverting to dictatorship or that there is zero tolerance of political activism for the foreseeable future (as argued by the applicants’ representative) as there is widespread, albeit circumscribed, criticisms of the government, its ministers and decisions emanating from a range of media, union, religious and political organisations, even when some uncertainty remains about the permissible limits on public commentary.

3. The Tribunal has also considered the most recent DFAT report issued in September 2017 and that information about the same DFAT assessments pertaining to political opinion and effective protection does not significantly deviate since its 2015 report in this regard.

4. As discussed above, it was specifically put to the first applicant whether he would undertake ongoing anti-government activities if he were to return to Fiji. The first applicant said he would, while the second applicant claimed she has never been involved in the past but fears being perceived as anti-government for her sur place activities in Australia.  However, the Tribunal does not accept the first and second applicants are strongly motivated to join the SODELPA or any other organisation, especially in the context where the Tribunal does not accept either applicant had been involved in political activities for the SDL prior to their departure in 2010.

100.   Given the first and second applicants will not return to Fiji with a real risk of being considered as persons of interest to the authorities, either on arrival or in the community, and the country information outlined above, the Tribunal accordingly does not accept the first and second applicants have a real chance of being arbitrarily deprived of their lives, being tortured, being subjected to cruel or inhuman or degrading treatment or punishment or any other significant harm by virtue of the authorities knowledge of their actual or perceived anti-government political opinion, activities or associations with the FDFM and SODELPA, if they were to return to Fiji. 

101.   For completeness, the Tribunal has also considered the country information that the current Prime Minister stated ‘We Will Track You Down’ as reported in the FijiSun. It was provided by the applicants to the Tribunal on 30 March 2017.  This was a comment recorded by the FijiSun on 30 August 2015. Country information indicates these comments were not directed to the FDFM as a whole but specifically towards punishing dissenters in the secessionist movement known as the Nadroga Navosa Sovereign Christian State or Ra Nation separatism.[31] Country information indicates that the authorities have arrested around 60 to 70 persons for charges of sedition or related to sedition.[32] However there has been no suggestion by the applicants that they have ever or currently support any Christian secessionist movement; it is only that that by implication of the applicants’ involvement in the FDFM that they will be imputed in supporting such a movement. The Fijian Government has also formally banned Ms Oni Kirwin from travelling to Fiji. A FijiSun report stated that Ms Kirwin 'is believed to spend time in Sydney to work with the so-called Fiji Democracy and Freedom Movement to raise funds for those accused in the alleged sedition.[33] No further reports were located linking the FDFM to Kirwin. The Tribunal accepts there is a connection between Ms Oni Kirwin who has involvement in both FDFM and the Nadroga Navosa Sovereign Christian State or Ra Nation secessionist movement. However, based on the country information, the Tribunal finds that this overlapping association between Ms Kirwin and the FDFM does not support the argument that the authorities in Fiji will assume or impute that the first and second applicants support the same or any other secessionist movement, either on arrival or in the community.  For this reason, and given the Tribunal has found the first and second applicants will not return to Fiji to undertake ongoing anti-regime activities, the Tribunal finds that there is no real risk of the applicants facing significant harm or being harmed for any imputed association with any breakaway or secessionist movement within Fiji, either on arrival or in the community.

[31] ‘We Will Track You Down: PM’ FijiSun (online) 30 August 2015 < Fiji: CI160414113158909 Nadroga Navosa Sovereign Christian State / Ra Nation – Sedition

[33] Bolatiki, M and Pratibha, J, 'Exposed', FijiSun (online) 26 August 2015 <  While it accepts that the first and second applicants will be known by the authorities for their involvement in FDFM protests while in Australia, the Tribunal finds that the applicants do not have a risk of being significantly harmed through questioning, monitoring or surveillance that is more than just a remote or far-fetched chance, by virtue of this knowledge. Based on the first applicant’s past behaviour and the country information, the Tribunal does not accept the applicants will return to Fiji to undertake ongoing anti-regime or pro-opposition activities that will lead the authorities to arresting, charging, detaining, monitoring, sentencing, the imprisonment of the first and second applicants or that they will be tortured or arbitrarily deprived of their lives.

103. Accordingly based on the first and second applicants’ political opinion, both actual and imputed, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first and second applicants being removed from Australia for Fiji, there is a real risk of significant harm. The Tribunal does not accept that the applicants will suffer harm by way of being arbitrarily deprived of life, that the death penalty will be carried out on them, they will be subjected to torture, they will be subjected to cruel or inhuman treatment or punishment, or they will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).

Political opinion findings regards the third, fourth and fifth applicants

104.   The Tribunal notes that the third, fourth and fifth applicants, who are minors, have relied on the first and second applicants’ actual or imputed political opinion claims being advanced on their behalves.

105. As the Tribunal does not accept their parents face a real risk of significant harm if removed from Australia for Fiji based on their political opinion claims, the Tribunal accordingly does not have any substantial grounds to believe that the third, fourth and fifth applicants face a real risk of significant harm of any kind listed in s.36(2B), if they were removed from Australia to their country of reference.

Residual claims

106.   The first applicant and the witness made claims on behalf of all of the applicants that they would not be able to return to Fiji due to a lack of access to communal land, leading to a real risk of severe economic hardship. In this regard, the witness claimed that her siblings had taken her land from her many years ago and the first applicant claimed that given the passage of time, they have lost access to their land. Both claimed that the situation had been exacerbated by recent cyclones and floods.

107. In its s.424A letter, the Tribunal invited the applicant for further comment about the claimed frequency of cyclonic or flood damage to their usual residence since departing for Australia in 2010; the applicants responded by reiterating there were at least two floods in [Town 1] that damaged the house and that any claimed 2016 damage by the witness had been due to the stress in appearing before the Tribunal. On balance, the Tribunal accepts that damage had occurred in the past due to natural events and places little weight on any embellishments in this regard. It accepts also that there is usual house of residence in [Town 1] has fallen into serious disrepair. However, it does not accept that the applicants cannot return to the first applicants’ traditional community and be denied access to traditional communal lands. The Tribunal was unable to find any country information that there were any ‘if you do not use it (land), you lose it’ provisions as claimed by the first applicant during the scheduled hearing. In fact, the 2017 DFAT report states that all indigenous Fijians are automatically registered by law upon birth into an official Fijian register of native landowners to verify access to communally owned lands (paragraph 2.49), implying the entitlement is ongoing.

108. The Tribunal does not accept the applicants will face a real risk of not finding accommodation or work if they return to Fiji. It does not accept the first applicants’ argument in his response to the s.424A letter that they cannot relocate to start their lives again when they have travelled to Australia to start their lives again in 2010. Both the first and second applicants have worked in Fiji’s labour market in the past; they are motivated and have reasonable levels of education, proficiencies in the official Fijian languages, and skills relevant to Fiji’s labour market. It is accepted they will face both emotional and material challenges and even onerous difficulties given the size of their family and the relative integration of their children into the Australian community in returning to Fiji. However, it is not accepted the first and second applicants will not be able find suitable work or accommodation or schools, that will return without their mutual emotional support or the support of the Methodist church to which they belong, or that they will be denied communal land.

109.   Under the complementary protection provisions of the Act, significant harm is different from the concept of serious harm as non-exhaustively required by 91R(1)(b) in the context of s.36(2)(a).[34] As outlined above, based on the applicants’ accepted personal and economic circumstances, the first and second applicant will face difficulties and challenges arising from finding work and accommodation to support themselves and their family, if removed from Australia. However it does not accept the first and second applicants will not be able to access paid employment anywhere in Fiji, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s.36(2A). Furthermore the Tribunal finds there is no intention on the part of the governing of the Fijian economy in combination of market forces to inflict significant harm, including subjecting the applicants to cruel or inhuman or degrading treatment or punishment..

[34] In MZZIA v MIBP [2014] FCCA 717 (Judge Riethmuller, 16 April 2014) the Court observed that there is a significant overlap in the meaning of the two terms, e.g. a risk of being killed is sufficient to fulfil both: at [34].

110. Based on the first, second, third, fourth and fifth applicants’ economic and personal circumstances, the Tribunal, accordingly, does not have substantial reasons for believing these applicants face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji, based on the applicant’s accepted economic circumstances will amount to any significant harm outlined in s.36(2A).

111.   For completeness, the Tribunal also finds that none of the applicants (excluding the sixth applicant for later consideration) will face a real risk of significant harm arising from their Methodist religion. Methodism is the largest Christian denomination among Indigenous Fijians and DFAT is not aware of any allegations of societal discrimination, harassment or violence directed at Methodists on the basis of their religion.  Noting that overall DFAT in 2015 and 2017 assesses there is no official discrimination against indigenous Fijians, there is also no suggestion the first, second, third, fourth and fifth applicants face a real risk of significant harm arising from their ethnicity as Indigenous Fijians who make up 57 per cent of the population, if they were to return to Fiji in the foreseeable future. 

Findings regarding the sixth applicant

112.   Given the findings above in which the Tribunal finds that the other applicants do not have a well-founded fear of persecution based on the first and second applicants’ actual and imputed political opinion claims if they were returned to Fiji, the Tribunal notes that the sixth applicant’s claims were made on her behalf. Accordingly it finds that the sixth applicant does not have a real chance of serious harm for any Convention reasons related to the first and second applicant’s political opinion claims, imputed or otherwise. 

113.   For the same reasons, the Tribunal does not have any substantial reason to believe the sixth applicant, as a necessary and foreseeable consequence of being removed from Australia to Fiji, faces a real risk of significant harm for any political reasons claimed by the first and second applicant.

114. Based on the same relevant considerations outlined above regarding the other applicants’ residual claims, the Tribunal also finds that that the sixth applicant will not face any real chance of serious harm arising from significant economic hardship or any other serious harm that would satisfy s.91R(1)(b) or any real risk of significant harm arising from the economic circumstances of her parents and family or their shared religion as Methodist Christians or their shared ethnicity as Indigenous Fijians, based on the considerations regarding the other applicants’ residual claims.

115. Based on the same considerations, the Tribunal does not have any substantial reason to believe that the sixth applicant, as a necessary and foreseeable consequence of being removed from Australia to Fiji, faces a real risk of significant harm as a result of her family’s economic circumstances, ethnicity or religion, that would satisfy s.36(2)(aa).

116. With no other residual claims to consider on behalf of the sixth applicant, the Tribunal accordingly finds the sixth applicant does not have a well-founded fear of persecution for any Convention or non-Convention reason as required by s.36(2)(a). Nor are there any substantial reasons for it to believe that the sixth applicant, as a necessary and foreseeable consequence of being removed from Australia to Fiji, faces a real risk of significant harm as required by s.36(2)(aa).

Cumulative findings

117.   There are no more residual claims to consider in this review application.

118. With regards to the sixth applicant and having considered the totality of the applicants’ claims and accepted circumstances, the Tribunal finds that that she will not face a real chance of serious harm for any Convention or non-Convention reason at all, if she were to be resettled to Fiji. Accordingly the sixth applicant does not have a well-founded fear of persecution as required by s.36(2)(a), if she were to resettle in Fiji, now or into the foreseeable future.

119.   In this review application, the Tribunal is not required to consider the other applicants’ claims and circumstances against the Refugees Convention, as required by AMA15 v MIBP [2015].

120. Accordingly, based on all available information and evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk of significant harm to any of them. The Tribunal does not accept that the applicants will suffer harm by way of them being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).

Conclusion

121. 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

122.   The Tribunal affirms the decision not to grant the applicants protection visas.

Brendan Darcy
Member