1503377 (Refugee)

[2016] AATA 4275

1503377 (Refugee) [2016] AATA 4275 (8 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503377

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Belinda Mericourt

DATE:8 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 August 2016 at 10:26am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa [in] November 2014 and the delegate refused to grant the visa [in] February 2015.

3. [In] March 2015, the applicant applied for review of the Department’s decision to the Tribunal.

4. On 14 July 2016, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. On 3 August 2016 the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

   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 –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

20. The applicant was born in [year] in Fiji. He provided his passport to the Department. He stated that he is of Indo-Fijian ethnicity and Christian religion. He did not identify his occupation or education in his application. The applicant’s parents reside in Fiji. He has one [sibling] residing in Australia.

21. The applicant was granted visitor visas (subclass 676) in March 2006 and September 2009. He complied with his visa conditions and departed Australia before his visa periods ceased. He was granted a visitor visa (subclass 676) but did not visit Australia within the validity period of the visa. He was granted a visitor visa (tourist stream) (subclass 600) [in] May 2013 and entered Australia [in] September 2013. His visa ceased [in] December 2013. He lodged applications for extensions to his visitor visa which were granted [in] November 2013, [February] 2014 and [May] 2014. He lodged a further application for an extension of his visitor visa [in] August 2014 which was refused [in] August 2014. The applicant applied for review by the Migration Review Tribunal which found it had no jurisdiction on 18 September 2014. The applicant then lodged an application for protection [in] November 2014.

22. The Tribunal has before it the Department’s file relating to the applicant, which includes a certified copy of the applicant’s Fijian passport issued [in] 2010, his application for a protection visa and a copy of the delegate’s decision record.  The Tribunal has also referred to relevant country information as cited in this decision.

    Claims made in the applicant’s written application dated [November] 2014

23. The applicant stated that he left Fiji due to the difficulties and problems that he faced due to the military government that was controlling the country. He had not experienced harm in Fiji. Unemployment is his main concern. He did not want to be a burden to his elderly parents who are struggling to survive. He fears the military as they want to take the law into their own hands, even though Fiji has become a democratic country. “The constitution has been abrogated and has affected us. Fiji is faced with so many problems I don’t want to be the victim. I have enjoyed my life here in Australia and would like to reside here. Fiji is now democratic but unfortunately there is still beating and bashing of people as we see in the TV and hear in the news. I fear getting the same treatment if I return to Fiji as law and order is not fully followed”.

24. The applicant did not attend the scheduled interview with the delegate [in] February 2015.

    Department’s decision

25. The applicant provided a copy of the Department’s decision dated [January] 2015 to the Tribunal with his application for review. The delegate made a decision to refuse to grant the applicant protection as he had never experienced harm in Fiji and his main reason for not returning to Fiji is for economic considerations. The delegate was not satisfied that the harm the applicant feared was either serious or significant. As the applicant did not attend his scheduled interview, the delegate was unable to obtain further details related to the applicant’s claims.

    Material provided to the Tribunal

26. On 3 August 2016 the applicant provided the following material to the Tribunal;

    ·A signed letter from the applicant dated 2 August 2016, waiving his right to a hearing and requesting the Tribunal make a decision based on the submissions provided;

    ·A reference from [a] Senior Pastor, [name] Church, Fiji, dated [April] 2013, stating that the applicant has been a member of the church for the past [number] years and is a leader in the assembly. He is employed by the assembly as a full-time church worker/administrator;

    ·A reference from Pastor [name], [name] Church, [suburb], undated, stating that he supported the applicant’s application “to extend his period of stay in Australia.” He has been a church member for the past six months;

    ·A submission from the applicant’s authorised migration representative dated 3 August 2016 stating that the applicant feared persecution in Fiji on the basis of both his race and his religion.

27. The applicant’s authorised migration representative’s submission is summarised as follows;

    ·the applicant has additional claims for protection, including fear of persecution on racial and religious grounds. The applicant fears he will face religious persecution because he was born a Hindu and has since converted to Christianity. In terms of his fear of persecution on racial grounds, this stems from his background as an Indian- Fijian. Historically, since British rule in the 19^th century, there have been ethnic tensions between Indian Fijians and indigenous Fijians. This has given rise to social, cultural and political tensions between the two groups. The applicant has experienced verbal and physical abuse as well as discriminatory practices. It is an institutional and systematic form of harm that permeates through different areas of society, including the communal, economic and political spheres of life;

    ·the applicant left Fiji because “his country of citizenship rejected him based on his ethnic background”. In addition, he feared the actions of his immediate community as they found out he was openly practising Christianity. As a result of this, the applicant was constantly subjected to derogatory verbal abuse and threats to his physical well-being;

    ·the applicant does not believe he has an option of relocation due to the institutionalised form of discrimination that Indian-Fijians are subjected to in all Fiji;

    ·the applicant fears he will suffer significant harm if he is required to return to Fiji. Ethnic Indians in Fiji have experienced significant harm in terms of arbitrary detention and abductions, shops and businesses ransacked and looted, homes attacked and burned and threats of rape and murder have been made;

    ·the applicant is not able to seek protection from harm from any of the two major ethnic groups that make up Fiji’s population because he is ethnically Indian and a convert from Hinduism to Christianity. As the major protective institutions in Fiji, such as the government and police, are made up of indigenous Fijians, the applicant fears he will still be discriminated against despite his conversion to Christianity, on the basis of his ethnic identity;

    ·The applicant stated that prior to departing Fiji police came to his [home] and the homes of his neighbours who are of Indian descent, and demanded that the inhabitants abandon their properties. This attack is part of a wider pattern of systemic discrimination towards Fijians of Indian descent;

    ·the applicant’s authorised migration representative referred to the case of Chand v Immigration and Naturalisation Service, USA, No. 98-70541. He submitted that this case was based on similar circumstances to the applicant’s. “Chand was the victim of violent attacks by the military, suffered economic persecution through its physical attacks on his family’s business and was. His land by indigenous Fijians. In that case Chand was found to be eligible for asylum.” The Tribunal notes that this case was determined in 2000.

    FINDINGS AND REASONS

28. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

    Requirement that the decision-maker be ‘satisfied’

29. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Nationality

30. On the basis of the applicant’s Fijian passport provided to the Department, the Tribunal finds that the applicant is a citizen of the Republic of Fiji. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Fiji. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  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).

    Claims related to fear of economic harm due to the applicant’s difficulty finding employment

31. In his written statement of claims, the applicant stated that unemployment is high in Fiji and he did not want to be a burden to his elderly parents.

32. The Department of Foreign Affairs and Trade (DFAT) 2015 Country Report on Fiji states:

    In recent years, economic growth has been subdued by political instability, external shocks and a poor enabling environment for business. Fiji faces constraints typical of other Pacific island economies such as exposure to natural disasters, high transport costs, a small domestic economy, and geographical isolation. GDP growth from 2006 to 2011 averaged 0.45 per cent. The economy has begun to recover, with GDP growth rising from 1.9 per cent in 2011 to a forecast 3.8 per cent for 2014.

    GDP per capita in 2013 was estimated at approximately USD4,700 and Fiji was classified by the World Bank as an upper middle income country. Poverty remains prevalent: in 2009 approximately 23 per cent of the population was estimated to live on less than USD2 per day. [1]

    [1] DFAT Country Report: Fiji, 14 April 2015, p.8

33. The DFAT Country Report also states that in respect of Indo-Fijians, in practice, they are able to access employment, education, healthcare and other government services on the same basis as other Fijians although there is evidence of some discrimination in public service employment. However, the Constitution provides for freedom from discrimination on the basis of race or ethnicity.

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

    Overall, DFAT assesses that Indo-Fijians face a low level of official discrimination on the basis of their race/nationality.[2]

    [2] Ibid, p.11

1. The unemployment rate cited by the World Bank decreased to 7.9% in 2014 from 8.3% in 2013. Since 2009, unemployment levels have gradually fallen in line with improved domestic economic growth. During the 2010-2015 period, the Fijian economy grew by 3.5% on average.[3]

   [3] Reserve Bank of Fiji as reported by the Fiji Sun On Line, 29 July 2016, “Unemployment in Fiji”, Accessed 29 July 2016.

2. Whilst the Tribunal accepts that the unemployment rate in Fiji is somewhat higher than that of Australia, the Tribunal finds that the applicant’s possible difficulty in finding employment does not constitute serious harm (having regard to the examples of ‘serious harm’ set out in s.91R(2) of the Act) or significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).

   Claims related to fear of serious or significant physical harm from members of the indigenous Fijian community, military or current government due to his Indian ethnicity

3. The applicant stated in his written application that he had never suffered any harm in Fiji.

4. In the written submission provided by his authorised migration representative on 3 August 2016, the applicant stated “his fear of persecution was exacerbated by a recent incident when the police came to his house in the homes of his neighbours who are also of Indian descent and demanded that they abandon their properties”. The applicant did not provide any dates or other details which may have supported this claim and he did not state what the outcome was of the demands made by the police. There is no indication that he lost his home or property either in his written application or his submission of 3 August 2016. He did not state that he suffered any other specific incidents of harm.

5. Given the almost total lack of detail related to the incident described above and the fact that the applicant had not mentioned this incident in his written application, the Tribunal is not satisfied that the police demanded that the applicant leave his home or that he suffered any serious or significant harm.  The Tribunal is therefore satisfied that the applicant did not suffer any serious or significant harm prior to his departure from Fiji as a result of his Indian ethnicity.

6. In respect of claims made in his written application related to military brutality, the Tribunal is aware that allegations have been made of military brutality which occasionally get media coverage. DFAT assesses that credible allegations of violent treatment of prisoners by the military has occurred in recent years. However, overall, DFAT assesses that the likelihood of any individual being subject to cruel, inhuman or degrading treatment or punishment by the military or police is low. Someone who is seen to have embarrassed the government or security services would have a higher risk profile.[4]

   [4] DFAT Country Report: Fiji, 14 April 2015, pp.22-23

7. The DFAT 2015 Fiji Country Report states:[5]

   Societal treatment

   3.18 In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists. For example, it is common for Indo-Fijians to drink kava (yaqona in Fijian; a plant of Pacific origin with sedative effect and a central role in traditional Fijian ceremonies), Fijians to eat curries and to celebrate Diwali. Many Indo-Fijians identify primarily as Fijian and secondarily, or not at all, as Indian. However, there are some Indians who strongly maintain Indian pride and refer to themselves as ‘Indians’. Many Indo-Fijians, particularly in rural areas, speak or understand Fijian. Similarly, it is common for indigenous Fijians to participate in the community celebrations of the Hindu festival of Diwali, while some, particularly in western Fiji, speak or understand Hindi. Marriages between ethnic groups are not common but do occur. In late 2014, a range of contacts described communal relations as “neighbourly”, “peaceful” and “friendly”.

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

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

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

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

   [5] Ibid, pp.11-12

8. The Tribunal had regard to the media articles and references referred to by the applicant’s authorised migration representative. The Tribunal accepts that, on occasion, that individuals of Indian descent in Fiji have experienced discrimination and intimidation, particularly at times of political tension and during the coups. The Tribunal notes that the media articles cited in the submission refer to events in 2000, 2001 and 2003. The most recent reference was in RefWorld in 2009 to the lack of protection for Indo-Fijian women against sexual assault.

9. The Tribunal must consider whether there is a real risk or a real chance that the applicant will suffer serious or significant harm if he returns to Fiji now or in the foreseeable future. Based on the most recent reports from DFAT, US Department of State, Amnesty International and Freedom House since the elections in 2014, the Tribunal is satisfied that incidents of violence against ethnic Indian-Fijians by indigenous Fijians has very significantly decreased and is no longer considered to be a serious or significant risk.

10. Given the applicant has described only one incident involving intimidation, and not provided any details about that incident or the results of threats or even whether the threats were made towards him or other members of his family, nor made any claims that he has personally suffered any physical or psychological injury, the Tribunal is not satisfied that the applicant has suffered serious or significant harm in Fiji prior to his departure.

11. Taking the above evidence into consideration both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm (having regard to the examples of ‘serious harm’ set out in s.91R(2) of the Act) due to his race or that there is a real risk that the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of his Indian ethnicity if he returns to Fiji now or in the foreseeable future.

    Claims related to fear of serious or significant physical harm from members of the Indian- Fijian community due to his conversion from Hinduism to Christianity and open practice of his Christian faith

12. The applicant did not mention any discrimination or harm that he had suffered as a result of his religion in his written application for protection.

13. In the written submission provided by his authorised migration representative on 3 August 2016, the applicant stated that he was constantly subjected to derogatory verbal abuse and threats to his physical well-being when members of his immediate community found out he was openly practising Christianity. He did not provide any specific examples.

14. The applicant did not attend the Tribunal hearing to provide evidence about the nature of the threats to his physical well-being or verbal abuse from members of the Hindu community as a result of his conversion to Christianity. The Tribunal had regard to the fact that the applicant did not claim he had suffered any actual harm as a result of his conversion from Hinduism to Christianity.

15. The Tribunal had regard to the a Department of Immigration and Border Protection COISS report in April 2014[6] which stated that “searches located no sources which indicate that Indo-Fijians who have converted from Hinduism to Christianity are subject to adverse treatment in Fiji for reason of their conversion.[7]”

    [6] DIBP COISS, Fiji: FJI$#!#& - Treatment of Indo-Fijian Converts from Hinduism to Christianity, 2 April 2014

    [7] Sources consulted include reports by the UK Foreign and Commonwealth Office, the US Department of State, Amnesty International, Freedom House and Human Rights Watch. Searches were also undertaken using CISNET, the United Nation’s Refworld database, the Factiva news database, and the Google and Google Scholar search engines.

16. The US Department of State report on Religious Freedom in Fiji, 2013 stated “There were reports of societal abuses or discrimination based on religious affiliation, belief, or practice[8]” although no examples were provided of abuse or discrimination against Hindus who had converted to Christianity.

    [8] USDOS Fiji International Religious Freedom Report, 2013

17. Taking the above evidence into consideration both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm (having regard to the examples of ‘serious harm’ set out in s.91R(2) of the Act) due to his religious beliefs or practices or that there is a real risk that the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of his conversion from Hinduism to Christianity and his open practice of Christianity if he returns to Fiji now or in the foreseeable future.

    CONCLUSION

18. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

19. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

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

    Belinda Mericourt
    Member