1503887 (Refugee)
[2017] AATA 3078
•10 March 2017
1503887 (Refugee) [2017] AATA 3078 (10 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1503887
COUNTRY OF REFERENCE: Fiji
MEMBER:R Homan
DATE:10 March 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 10 March 2017 at 3:34pm
CATCHWORDS
Refugee – Protection visa – Fiji – Race – Native Fijian – Religion – Christian – Political opinion – Imputed political opinion – Member of PISAI and Fiji Native Government in Exile – Social group – Civil servant in supervisory position – Victim of degrading treatment – Fear of Fijian military forcesLEGISLATION
Migration Act 1958, s 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who the Tribunal accepts are nationals of Fiji, applied for the visas [in] September 2014 and the delegate refused to grant the visas [in] February 2015.
The issues in this review are whether the applicants have a well-founded fear of persecution in Fiji for one or more of the five reasons set out in the Refugees Convention; and, if not, whether 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 that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
Member of the same family unit
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 spouse and dependent children.
CONSIDERATION OF CLAIMS AND EVIDENCE
Visa application
According to information provided in the visa application, the first applicant (hereafter referred to as ‘the applicant’) was born in [year] in [Fiji]. He is ethnic Fijian and stated that his religion is Christianity. The applicant is married to the second named applicant and the remaining applicants are their children, born in [year] and [year].
The applicant and second applicants both made claims for protection with their children relying on their membership of the family unit.
Claims made by the applicant
The applicant declared in the visa application forms that he last arrived in Australia as a visitor [in] May 2014. The applicant travelled on a Fijian passport issued to him in [2010]. The applicant declared that he had lived in [City 1] and most recently [City 2] prior to his arrival in Australia. The applicant completed diplomas in [Fiji] in 2005. The applicant stated that he had been employed [with] [Government Department 1] in [City 2] prior to his departure from Fiji.
The applicant stated that he came to Australia because he felt his life was in danger from [Officer A] of the Fiji Military Forces. In the course of his work, the applicant was required to inspect motor vehicles and if they passed the required standard, issue their owners with a certificate of fitness.
On one occasion, a [particular vehicle] was presented for inspection. The applicant inspected the vehicle and issued the owner with a certificate of fitness. Two months later, the applicant was visited by [Officer A] and was told he was investigating the issuing of the certificate because the vehicle was not running well and experienced mechanical problems. [Officer A] tried to force the applicant to pay for the repair costs. The applicant refused and was forcibly taken to the Naval base and subjected to degrading treatment, such as crawling on the ground and being made to run in a mud pool, resulting in an injury to his knee. When he was escorted home, [Officer A] told the applicant that if he continued to refuse to pay for the repair costs he would be brought back to the Naval base and would never return home. [Officer A] was the [brother] of the owner of the vehicle.
The applicant refused to pay for the repairs and was very concerned for his life and that of his family, so he decided to save up to come to Australia and apply for protection. The applicant feared that following the general elections in September (2014) the military junta would remain in power irrespective the election results, which could result in civil unrest and more killing of civilians. The applicant feared that [Officer A] could make up an excuse to kill him during the civil unrest. There had been several unexplained cases of civilians killed whilst in military or police custody.
The applicant also expressed fear that he would be taken to the Naval base because of his participation in protests against Prime Minister Bainimarama in [Australia]. The Prime Minister’s [family member] was the applicant’s former boss at [Government Department 2]. [Mr B] accompanied the Prime Minister to a meeting in [Australia] and, when he got out of the car, looked towards a group of protesters gathered at the meeting and saw the applicant. He shook his head and entered the meeting.
The applicant stated that he knows for a fact that [Mr B] would have told the Prime Minister about the applicant and his wife’s involvement in the protests and they will be marked people if they return to Fiji. The applicant described the Prime Minister as someone who carries grudges and takes revenge against those who have challenged him. Footage of the protests taken by [a media outlet] was broadcast widely in Fiji and shows the applicant and his wife amongst the protesters. The applicant claimed that it is common knowledge that there is a unit within the military which views all blog sites and news media and notes down people’s names who are seen to be protesting against the military.
The applicant claimed that he wanted to protest because he was unable to speak out against the military in Fiji. From the first day of his arrival in [Australia], he talked about what he experienced in Fiji and the corruption within the military junta. The applicant has been warned that the military has many supporters in [Australia] and they report back on anyone who speaks against the military.
When the applicant’s wife and children arrived in Australia, they told him that the military had been coming to his home asking about his whereabouts and how long he would be in Australia. The applicant said his children seem traumatised from this experience. The applicant did not think the authorities could protect him as the authorities are subservient to the military.
Claims made by the second applicant
The second applicant was born in [year] in [City 1] and also identified as belonging to the Fijian ethnic group and Christian religion. The second applicant obtained a Diploma in [a course] from the University [in] 2014 and was employed as [Occupation 1] with [Government Department 3] in [City 2] prior to her departure from Fiji.
The second applicant claimed to fear returning to Fiji due to her husband’s confrontation with [Officer A] as described above and also because she participated in the protests against Prime Minister Bainimarama in [Australia]. The applicant claimed that her ministry came under the Prime Minister’s portfolio and she was privy to some things that other civil servants weren’t, including witnessing vote buying and abuse of taxpayer money to fund the military junta’s political campaign.
The second applicant stated that she took the threat made by [Officer A] seriously and her fears were reinforced when soldiers started coming to her home and enquiring about her husband. The second applicant was afraid after hearing stories of civilians being taken to military barracks and killed.
The second applicant stated that she joined protesters in [Australia] because she wanted to exercise her human rights. The second applicant stated that she could be seen in the [footage] of the events and in photos circulated on the Internet. After the event, the applicant tried looking at her work email but found that it had been cancelled. The second applicant speculated that the cancellation of her email related to her protests in [Australia]. The second applicant expected that her employment had also been cancelled.
The second applicant claimed that although she is not a high profile civil servant, her participation in a peaceful protest would be seen as an act of betrayal and she feared harm by the military upon return to Fiji.
Protection visa interviews
The first and second applicants were separately interviewed [in] January 2015 and the Tribunal has listened to electronic recordings of those interviews.
First applicant’s interview
The applicant confirmed the personal information set out in his protection visa application. The applicant denied having experienced any difficulties connected with his religion and stated that he did not fear any harm for reasons of his religion.
The applicant told the officer that he completed [training] and later worked as [an occupation] at [Government Department 2] until October 2006. The applicant stated that he had been informed over the telephone that his employment at [Government Department 1] had been terminated toward the end of August 2015.
The applicant provided an account of the incident involving [Officer A] and the treatment he experienced at the Naval base that was consistent with his written claims. The applicant stated that he left Fiji because he was unable to live in an environment where he was being scrutinised every day. The applicant gave evidence that a friend’s wife had told him that the military had been at his house and that he would be harmed if it were to return to Fiji.
The applicant denied that he could safely relocate to another island or part of Fiji.
The delegate discussed with the applicant his delay in departing Fiji after the grant of his visitor visa and the delay in making a protection visa application after his arrival in Australia.
The applicant denied belonging to any political organisations in Australia but stated that he was a member of a social club. The applicant gave evidence that the only protest he had attended in Australia was during Prime Minister Bainimarama’s visit in August 2014 at [Suburb 1]. The applicant stated that the protest was attended by more than 50 people and was organised by some Fijians in Australia but he was unsure who. The applicant stated that he was told about the protests by a friend at his social club. Asked why he decided to attend the protest, the applicant stated that it was impossible to express your political beliefs in Fiji and everyone was frightened to speak. The applicant attended the protest in order to express the feelings that he had bottled up. The protest was an opportunity for the applicant to show his dissatisfaction with the Bainimarama regime. The applicant stated that a photograph showing him and his wife at the protest [had] been published on the Internet.
Second applicant’s interview
The second applicant denied having experienced any harm in the past for reasons of her religion and stated that she did not have a fear of religious harm should she return to Fiji.
The second applicant stated that she had worked her entire career in the public service. The second applicant confirmed that she was last employed in [Government Department 3] as [Occupation 1]. The second applicant stated that at the time she left Fiji her contract had just been renewed for three years. The second applicant was on leave when she arrived in Australia and requested an extension of her leave after her arrival. The second applicant stated that she assumed her employment had been terminated as she had seen her position being advertised in the government gazette.
The second applicant stated that she had spoken to her former superintendent over the telephone who told her that a photograph of her attending protest had been seen on [social media]. The superintendent warned the applicant that if she returned to Fiji she would be taken by the military. Other work colleagues had told her the same thing and said there had been a meeting at work in which the second applicant’s boss told the meeting that what the second applicant had done in Australia was wrong.
The second applicant told the delegate that after the [Suburb 1] protest she had tried to access her work email but had been locked out. The second applicant stated that she assumed she had been locked out because of her involvement in the protest. The second applicant confirmed that the [Suburb 1] protest was the only protest in which she had participated in Australia. The second applicant stated that she had participated in the protest to exercise her rights.
The second applicant gave evidence that in the course of her work she was very close to the Prime Minister’s office and had seen things that were wrong. The Prime Minister’s office was forcing her Department to do things that were outside its program.
The second applicant gave evidence that she and her family left Fiji because they were frightened after the applicant was harmed. The second applicant stated that she had seen the injury to the applicant’s knee after he was taken to the Naval base.
The second applicant stated that she feared being taken by the military to the camp and brutalised. The second applicant denied that she could relocate to another part of Fiji.
The second applicant denied that she had been a member or supporter of any political or social organisations in Fiji and stated that her husband had also not been a member of any such organisation. The second applicant confirmed that her husband was a member of a social club in Australia but that they were not otherwise members of any political organisations. The second applicant stated that they were not members but had agreed to join members of the Fiji Democracy and Freedom Movement at the [protest].
Other evidence
Additional material provided to the Department included:
·evidence of the first and second applicants’ education and employment, including letters stating that their employment positions would be deemed abandoned if they did not resume duties;
·a letter from [an official] of the Fiji Democracy and Freedom Movement (FDFM), dated [in] February 2015, stating that Prime Minister Bainimarama’s [family member], [Mr B] was present at the protest in [Australia] held [in] August 2014;
·a statutory declaration made by [a witness], dated [in] February 2015, stating that he had known the applicant since 1995 when they worked together [at] [Government Department 2] in Fiji under the supervision of [Mr B] who is the [family member] of Frank Bainimarama;
·a copy of [a] news article, dated [in] August 2014, titled “[title]”[1] showing the photograph of the applicants in [Suburb 1] referred to at the protection visa interview; and
·a copy of the photograph of the applicants at the [Suburb 1] protest taken from [a] News website.
Delegate’s decision
[1] [Source deleted].
The delegate’s decision record sets out the applicants’ migration histories. The applicant and the second applicant were granted visitor visas [in] November 2010 and entered Australia [in] December 2011. They departed within their visa periods. The applicant was granted a visitor visa [in] October 2011 and entered Australia [in] October 2011. He departed within his visa period [in] January 2012. [In] May 2014 the applicant was granted a visitor visa (subclass 600) and entered Australia [in] May 2014. The other applicants were granted visitor visas [in] July 2014 and entered Australia [in] July 2014.
The delegate accepted the applicant’s evidence relating to the incident where [Officer A] demanded the applicant pay for his brother’s car repairs and accepted that he was taken to a Naval base where he was made to run in a mud pool and subsequently released. The delegate found that the applicants’ claims involving [Officer A] were not Convention related, and was not satisfied that there was a real risk that the applicants would suffer significant harm from [Officer A] were they to return to Fiji now.
The delegate found that the applicants were not members or supporters of any political party in Fiji before their departure.
The delegate accepted the applicants’ evidence that they attended an anti-Bainimarama protest in [Australia] in August 2014 and that they had not engaged in this conduct for the sole purpose of strengthening their claims to be refugees. The delegate did not accept that images of the applicant at the protest were widely disseminated in Fiji and concluded that the images were not large or distinct. The delegate did not accept the applicant’s claim that [Mr B] accompanied Prime Minister Bainimarama to the protest and that he saw the applicant and recognised him. The delegate concluded that there was no evidence to support the applicants’ claims that they would be perceived as vocal opponents of the regime if they returned to Fiji. The delegate was not satisfied that there was a real chance or risk that the applicants would suffer serious or significant harm as a result of having attended the protest in August 2014.
Review application
At the time they applied for review, the applicants provided the Tribunal with a copy of the delegate’s decision record.
Prior to the Tribunal hearing, the applicant provided the Tribunal with a submission from the applicants’ then representative [dated] 19 August 2016.
According to the submission, the applicants are registered members of Ms Kirwin’s charity organisation, Pacific Indigenous Samaritan Association Inc (PISAI) and are also registered members and active supporters of her group, the Fiji Native Government in Exile. The letter states that the applicants have been involved in Ms Kirwin’s organisations in the following capacities:
·They attend Thursday night members’ meetings in [a suburb].
·They make financial contributions.
·The applicant was a front-liner at a protest in [Suburb 2] in October 2015. The Prime Minister’s [family member], [Mr B], took photos at the protest and recognised the applicant. [Another person] recognised the applicant as he held up a placard and shouted that Bainimarama was a murderer and a liar. Other government staff recognised the applicant and took pictures of him openly to remind him that they had evidence of his wrongdoing.
·The applicant was one of [a number of] men who carried banners at a Proclamation March in [City 3] in January 2016.
·The applicant was one of the banner anchors during a protest in front of the Immigration Department in early 2016.
·The applicant has attended events hosted by [a local politician].
·The applicant has been MC at members’ meetings and, together with his wife, has been a group leader at prayer-intercessory groups.
·The second applicant has done the organisation’s books for the Australian Taxation Office.
The submission states that as the applicants held senior supervisory positions in government departments before they fled Fiji, they are able to give Ms Kirwin’s organisations professional support and advice when needed. For this reason also, they are more likely to be targeted by the Bainimarama regime. [The representative] states that the applicant’s face is synonymous with the Fiji Native Government in Exile. The whole family is involved in supporting the organisation. Many photographs are taken at the organisation’s events including protests, marches and members’ meetings. These photographs have been posted on [social media] and are widely available on the Internet.
The letter states that membership of Ms Kirwin’s organisations is around 600, mostly ethnic Fijians who are also practising Christians. On 28 January 2016, representatives were elected from each of the 14 provinces of Fiji to sit on the 14-member executive board of the Fiji Native Government in Exile. The organisation’s objective is to promote, support and fund all efforts toward self-determination in the 14 provinces of Fiji including, the “trailblazers” of Nadroga-Navosa and Ra. Ms Kirwin states that the group considers it their “paramount and sacred duty to fight for their survival and liberation” and to that end, the Fiji Native Government in Exile’s ultimate goal is self-determination.
[Sentence deleted]. The Fiji Native Government in Exile has transmitted in excess of $60,000 towards the legal defence of the Nadroga-Navosa and Ra group. The letter claims that those who are seen openly with Ms Kirwin and members of her groups are regarded as enemies of the state and will be persecuted. The letter contains extracts from various articles in which the Fijian Prime Minister is reported to have warned Fijians living overseas who support the Christian state movement that they may be punished and imprisoned.
The letter additionally states that the applicant has a well-founded fear of persecution for reasons of his Christian religion. It is argued that Fiji is a Christian nation, yet according to the 2013 Constitution, God is completely removed from government. It is claimed that the applicant cannot speak openly about Jesus. Children in primary schools cannot have a morning devotion in the name of Jesus. Children are required to learn and participate in other forms of religion and they are all now subject to a law which is inconsistent with the traditional laws of Fiji. Anyone who dares to speak out runs the risk of being harmed by the authorities.
The submission also claims that the applicant has a well-founded fear of persecution for reasons of his native Fijian race. [The representative] claims that the indigenous Fijian race was being “exterminated and annihilated through non-negotiable statutes”. The native Fijian race of people was being forcibly and intensively “assimilated” into Muslim culture and it is the intention of the Attorney-General to “ethnically cleanse the native Fijian race from the landscape of Fiji”. The submission claims that indigenous Fijians stand to lose their cultural autonomy and are being robbed of their proprietary rights to the land, sea and sky.
Tribunal hearing
The applicants appeared before the Tribunal 30 September 2016 to give evidence and present arguments. The Tribunal received oral evidence predominantly from the first and second named applicants. The third and fourth named applicants were present throughout the hearing and were given an opportunity to give evidence also. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicants had indicated to the Tribunal that their [representative] would attend the hearing but confirmed at the commencement of the hearing that she would not be attending and they were happy to proceed in her absence.
The applicants also indicated that they no longer wished the Tribunal to take oral evidence from the witnesses identified in their Response to Hearing Invitation form.
Additional documentary evidence
The applicant submitted additional documentary evidence at hearing, including:
·a duplicate of the submission by [the representative] referred to above;
·a copy of the applicant’s membership card for the Fiji Native Government in Exile;
·a statutory declaration by [Ms C], dated [in] August 2016, indicating that she attended religious services with the applicants in Fiji between 2012 and 2014;
·a statutory declaration by [Ms C], dated [in] September 2016, stating that she was employed by the [Government Department 3] [between] December 2013 and December 2014 and had worked with military personnel in the course of this work. [A witness], who was one such military officer often referred to the applicant’s family as traitors because they protested in Australia against the Bainimarama government;
·copies of [social media] messages from [Ms D];
·an article published on the Internet showing a picture of the applicants attending a protest at [Suburb 1], dated [in] August 2014;
·photographs of the applicant holding placards and banners at a Fiji Day protest in [Suburb 2] [in] October 2015 and a photograph purportedly of [Mr B] at the same event;
·a copy of an article published in the [media] warning overseas Fijians inciting violence that the government would track them down;
·various articles relating to the mistreatment of civilians by the Fijian military and security forces since the 2014 elections;
·evidence of charitable donations and community work done by the applicants in Australia, including a letter from [a witness], stating that the applicants are an asset to their church and community.
First applicant’s evidence
The Tribunal asked the applicant about the significance of the statutory declarations provided by [Ms C]. The applicant told the Tribunal that [Ms C] and [another witness] worked in the same rehabilitation team following Cyclone Evan. The applicant stated that [Ms C] had lost her job and expressed the belief that this was because of her connection with the applicant and his family and their protests in Australia. Asked why he held this belief, the applicant stated that some of her colleagues had told [Ms C] this.
The applicant told the Tribunal that the [Social media] messages from [Ms D] stated that this story of the applicants’ activities in Australia was now circulating around [a government] office.
The applicant told the Tribunal that the photographs showing him at [Suburb 2] protest were taken by his daughter and [the representative].
The applicant told Tribunal that he left Fiji because he had certified a van as passing a fitness test. Two months later, the van broke down and the applicant was questioned about why he had approved the van as roadworthy by [Officer A], who was assigned by the military to oversee [Government Department 1]. In late 2013, the applicant was taken to a Naval base. The applicant realised that this was not an ordinary interrogation and that he had been taken for some other reason. The applicant was refused the opportunity to call his wife and his telephone was confiscated. The applicant was forced to run in a swamp. The applicant was mistreated and then told to find his own way back home with a warning that he would be mistreated again if he disobeyed them. The applicant sat by the roadside, muddy and wet, until a van came past and took him home.
Asked whether he had any other encounters with [Officer A] after this incident, the applicant said that [Officer A] often rang him in the office. [Officer A] told the applicant that he had to pay for the repairs to the van.
The Tribunal noted that there appeared to be a period of five or six months after he was taken to the Naval base in which the applicant remained in Fiji. The applicant agreed and stated that during this period he was under observation. The Tribunal noted that the applicant appeared to have remained at work during this period and asked the applicant whether he took the [officer]’s threats seriously. The applicant responded that he was taken on a second occasion to a vacant block in [City 2], where he was threatened with a rifle and pushed. The soldiers told the applicant that there would be more to come. The Tribunal noted that this claim did not appear to have been raised with the Department and the applicant agreed. Asked why he had not mentioned this to the Department, the applicant responded that he couldn’t think of everything.
The Tribunal observed that the evidence suggested that [Officer A’s] motivation was to obtain financial gain from the applicant. The applicant told the Tribunal that the military thought that because of their uniform they could do whatever they liked. The Tribunal asked the applicant whether he thought this kind of thing could happen to him again. The applicant said he leave believed this to be the case. The Tribunal asked the applicant why he held this belief, noting that it had been two years since he left Fiji. In the meantime, there had been an election and a lot had changed in the country. The applicant stated that despite the so-called democratic election, soldiers continued to beat up civilians both before, during and after the election. The Tribunal noted that the applicant’s employment with [Government Department 1] had ceased and so it seemed unlikely that if he were to return to Fiji he would return to the same job. The applicant responded that same people were in power and he would continue to be in fear. [Officer A] and his associates know the applicant and his family.
Asked whether he had any other encounters with [Officer A] before he left Fiji, the applicant stated that every time [Officer A] and his associates came into the office they would stop by the applicant’s office to tell him not to forget what happened to him. The applicant said they did not do this in secret but in front of everybody. Asked whether there were any visits to his home after he travelled to Australia, the applicant responded that people would come by asking when the applicant would be back in Fiji. They harassed and threatened the applicant’s family. The applicant was unsure how many times this occurred and suggested that the second applicant would be in a better position to say.
The Tribunal asked the applicant about his political activities in Australia. The Tribunal noted that at the time of the delegate’s decision, the applicants had participated in one protest at [Suburb 1] at which their photograph was taken and subsequently published as part of [a] News report. The Tribunal noted that [the representative]’s submission indicated that the applicants had now attended a number of other protests.
The applicant stated that he had attended a protest in [Suburb 2] on Fiji Day and a protest in [City 3]. The [City 3] protest was organised [and] took place in a park near [a location]. The police were present but the applicant was unsure whether the media was present. The applicant said he was not aware of any media reporting of that protest.
The applicant said the [media] was present at [Suburb 2] protest and there were a lot of posts on [social media] about the protest. Asked which [social media] pages he was referring to, the applicant said they were on Ms Kirwin’s [social media] as well as his and his wife’s [social media]. The applicant stated that both he and [the representative] took the photos. The applicant stated that he followed [several Fijian media outlets] and some Australia-based government critics on [social media]. The applicant undertook to provide the Tribunal with relevant screenshots from his [social media].
The Tribunal asked the applicant about some of the other protests mentioned [the representative]’s submissions. The applicant stated that only his wife was involved in the protest in front of [a government department]. Asked about the meetings with [a politician], the applicant said that he was not involved.
The applicant confirmed that he was a member of Ms Kirwin’s two organisations and showed the Tribunal his membership card for the Fiji Native Government in Exile. The applicant provided an account of the aims and purpose of both organisations that was consistent with [the representative]’s submissions.
Asked how he had been involved in Ms Kirwin’s organisations, the applicant stated that he was a senior member and would chair meetings. His wife would look after the accounts. Asked what made him a senior member, the applicant stated that he was a foundation member but clarified that he did not hold any office within the organisation. Asked whether he held any public profile as a member of the organisation, the applicant responded that his profile was the same as any ordinary member. The applicant said he would sometimes be looked to for advice because of his work experience in Fiji. The applicant stated that he had chaired meetings on four occasions and would attend meetings every Thursday. The applicant confirmed that he and his wife made financial contributions to the organisation but that he did not keep count of how much.
The Tribunal asked the applicant how his association with Ms Kirwin’s organisations would be known in Fiji. The applicant responded that the Prime Minister had declared that persons associated with Ms Kirwin would be “grabbed” when they come to Fiji. The applicant said that his involvement would be known because people are talking on [social media].
The Tribunal put the applicant that it seemed that there were approximately 600 members of Ms Kirwin’s organisations and the applicant’s own evidence indicated that he had no particular profile to distinguish him from other ordinary members. The applicant said he did not need to be an official of the organisation to be a person of interest. People talk and the story would be going around that the applicant was a member of the organisation.
The Tribunal asked the applicant about his claim that the Prime Minister’s brother saw him at protests in Australia. The applicant told the Tribunal that [Mr B] was his former [colleague] and they know each other fairly well. He saw the applicant at the protests in [Suburb 2] and [Suburb 1]. The two did not talk but [Mr B] shook his head after seeing the applicant and walked off.
The Tribunal asked the applicant whether there was as any other reason why he believed he would have a profile of interest to the military or Bainimarama government. The applicant responded that everyone is connected on [social media]. Everybody knows who is making the anti-government comments and there is no hiding.
The applicant denied ever being a member of the Fiji Democracy and Freedom Movement despite holding an FDFM banner in one of the photographs submitted to the Tribunal. The applicant also denied being a member of SODELPA, explaining that as a civil servant, he was not permitted to be a member of a political party.
The Tribunal asked the applicant about the claim made in [the representative]’s submission that he feared harm in Fiji as a Christian. The applicant confirmed that he was a Pentecostal Christian. The applicant told Tribunal that the current government had introduced changes preventing the name of Jesus being mentioned in Parliament, schools or government institutions. The applicant expressed the view that this suppressed his rights as a Christian in Fiji. The Tribunal put to the applicant that country information suggested that Christians were able to freely practice their religion in Fiji. The applicant agreed but said the fact remained that the government had removed prayers in schools and in Parliament and that went against what the majority of Fijians, including the applicant, believe in. The Tribunal explained to the applicant that it had to consider whether there was a real chance or risk of him suffering serious or significant harm. The Tribunal asked the applicant whether, leaving aside his personal view as to the changes, he thought they would lead to a real chance or risk of him suffering serious or significant harm. The applicant said eventually it could come to this. Anyone who says anything against the Prime Minister or Attorney-General is suppressed.
The Tribunal also asked the applicant about the claim raised in [the representative]’s submissions that he feared harm as an indigenous Fijian. The applicant responded that everyone can be ‘Fijian’ now. Indigenous Fijians’ right to call themselves ‘Fijians’ had been taken away. There had also been changes in the law regarding land and fishing rights that particularly affected indigenous Fijians living in the villages.
The Tribunal asked the applicant what he feared may happen if he were to return to Fiji. The applicant said he did not want to return to Fiji because as soon as he returned he would be grabbed and taken to the military camp and taken to task. The applicant said he and his family had a genuine fear of returning to Fiji.
Second applicant’s evidence
The second applicant told the Tribunal that she left Fiji because of the threats she had experienced in her home. The applicant stated that when she was still in Fiji, soldiers would come to her home and ask about her husband’s whereabouts. This happened whilst the applicant was still in Fiji and after he had left and come to Australia. The second applicant estimated that this happened almost every day whilst the applicant was still in Fiji. After he left, it occurred once or twice a week. The Tribunal asked the second applicant whether the soldiers said anything else to her apart from asking when her husband would return. The second applicant said she could tell from the way she was questioned that they were trying to bribe or blackmail her husband. The second applicant suggested that they were trying to intimidate her to get information about her husband.
The Tribunal noted that this happened around two years ago and asked the second applicant whether she still held any concerns in this regard. The second applicant told the Tribunal that she worked closely with soldiers through her employment and was concerned that they had seen pictures of her attending protests in Australia and would take her to the military camp.
The Tribunal asked the second applicant how her work colleagues came to know about her attendance at protests in Australia. The second applicant told the Tribunal that her former colleague, [Ms D], had sent her messages with a link to the [media outlet’s] article about the protests. The Tribunal asked the second applicant if she knew how he came across the report. The second applicant told the Tribunal that he had access to the Internet at work and that some of her other friends had seen it on [social media]. The story was also on the television news in Fiji. The second applicant’s image was broadcast in these reports. The second applicant told the Tribunal that her supervisor had also seen the reports and was concerned about her involvement in the protests and asked her to sign a resignation letter.
The Tribunal asked the second applicant about her other political activities in Australia. The second applicant told the Tribunal that she supported Ms Kirwin’s group, PISAI, because she was fighting for human rights and protesting against changes to the laws affecting indigenous Fijians including their fishing and land rights. The second applicant told the Tribunal that she and her husband had attended a protest at [Suburb 2] in October 2015 and that photographs of them at the protest had been published on Ms Kirwin’s [social media]. Photographs had also been published on the applicant’s [social media] and those of other members of Ms Kirwin’s groups. The second applicant told the Tribunal that the Minister with whom she worked in Fiji [was] also at the protest and she thought he may have recognised her. The second applicant told the Tribunal that she attended meetings with the Minister once a month.
The second applicant stated that she had also attended a protest on [a public holiday] in [City 3] which was covered on Ms Kirwin’s [social media] as well as a protest in front of the [government] offices. The second applicant stated that photographs were posted on Ms Kirwin’s [social media] and the [media outlet] may have covered that event although the applicant did not think her photo had been published in connection with that protest.
The Tribunal asked the second applicant about her involvement in Ms Kirwin’s organisations. The second applicant told the Tribunal that she attended meetings and assisted with the accounts and compiling financial reports on expenditure. The second applicant said she attended meetings every Thursday and acted as a group leader at prayer sessions. The Tribunal asked the applicant whether she had a particular profile or position within Ms Kirwin’s organisations. The applicant said she was an ordinary member.
The Tribunal asked the second applicant how anyone in Fiji would know about her membership of Ms Kirwin’s organisations. The second applicant suggested that the photos of her on [social media] and the footage that had been broadcast in Fiji would have been seen by the government.
The second applicant told the Tribunal that she was not a member of any other political organisations or parties. The second applicant denied being a member of SODELPA or the FDFM. The second applicant said that as a public servant she was required to remain politically neutral.
The Tribunal asked the second applicant about her claim to have worked closely with the Prime Minister’s office and to have been privy to information about unorthodox dealings within the office. The second applicant expressed concern that the government may be afraid that she would reveal information she was privy to in the course of her work. The second applicant told the Tribunal that foreign aid had been given for specific purposes but had been inappropriately diverted to other causes by the government. For example, they knew that funds had been allocated for cyclone rehabilitation but whenever they requested funding they were told that there was no money.
The Tribunal asked the second applicant whether she held any fears relating to her religion. The second applicant indicated that she did not. Asked whether she had held any concerns related to her status as an indigenous Fijians, the applicant told the Tribunal that she had been protesting against laws that had affected indigenous rights.
Other evidence
100. The Tribunal discussed with both applicants the general country information set out below. In response, the applicant suggested that it was not just high-profile government critics or activists who were harmed. The applicant expressed the view that the situation had not improved since the 2014 election. The military do whatever they want to do.
101. The second applicant told the Tribunal that the DFAT information may not be from people on the ground but from the Fijian government itself. The Tribunal explained that the DFAT Country Report indicated that its advice was based on information from a range of sources.
102. The applicant told the Tribunal that all information coming out of Fiji was restricted by the government. The applicant said that Fiji had transferred from a military dictatorship to a parliamentary dictatorship and there was no transparency.
103. The third and fourth applicants were invited to give evidence to the Tribunal with regard to the issues that had arisen during the hearing. The third applicant expressed fear that his parents and sister may be harmed. The third applicant stated that he was the only man at home when his father came to Australia and the experience of having soldiers come to his home would always stay with him. The third applicant stated that his education had suffered as, having taken on the role of the man of the household, he was unable to concentrate on his education. The third applicant stated that he had attended meetings of Ms Kirwin’s groups but had not attended any protests.
104. The fourth applicant also expressed fear about returning to Fiji. The fourth applicant told Tribunal that she had also attended the protests in [Suburb 2] and [City 3].
Post-hearing submissions
105. Following the Tribunal hearing, and the Tribunal received additional evidence from the applicants including:
·[Social media] screenshots showing photographs of the October 2015 protests in [Suburb 2] including some depicting the applicants;
·[Social media] screenshots showing photographs of protests in January 2016 at [City 3] including some depicting the applicants;
·[Social media] screenshots showing photographs of protests outside [a government] office in [Australia] [in] April 2016, including some depicting the second applicant;
·screenshots of the applicant’s [social media] page, showing links and posts from SODELPA Fiji and Rajendra Chaudhry, as well as public posts relating to corruption in Fiji; and
·duplicates of the [social media] messages from [Ms D].
Additional country information
2014 elections and general economic and social conditions
106. Country information before the Tribunal indicates that general elections held on 17 September 2014, produced Fiji’s first democratically elected government since the military coup in 2006. The Fiji Election Commission rejected all allegations of "corrupt and unlawful practices," and a 90-member Multinational Observers Group confirmed that the elections were free and fair[2]. Voter turnout was 84 percent. Fewer than 4,000 of the 500,000 votes cast were invalidated. There were no reports of violence or intimidation[3]. On 22 September 2014, J. V. Bainimarama of the Fiji First party, who had served as interim Prime Minister, took office with a pledge to be "the Prime Minister of all Fijians, for all Fijians."
[2] The Freedom in the World 2015 – Fiji[4] report, published by Freedom House on 15 April 2015, states that citizens of Fiji enjoy broad freedom to travel, live, work, and seek education inside and outside the country. Citizens can freely own property and establish businesses, and Fiji's economy has recovered to some extent from the global economic recession and general atmosphere of uncertainty under the interim government.
[4]
Freedom of speech and political opinion
108. The Freedom in the World 2015 – Fiji[5] report, confirms that the interim government imposed severe restrictions on freedom of assembly and association, but states that these were gradually relaxed in the two years leading up to the general election. Police permits were still required for public gatherings and protests, but there were no reports of denials or last minute orders to cancel events in 2014, as opposed to previous years.
[5]
109. The same report states that there were no confirmed reports of government restrictions on private discussion of political matters or other sensitive topics in 2014. Personal blogs and other forms of social media, both for and against the interim government, operated with relative freedom, unlike traditional media.
110. The DFAT Country Report for Fiji[6] provides the following advice with regard to persons known or perceived to hold anti-government political opinions in Fiji:
[6] DFAT, Country Report Fiji, 14 April 2015, 3.70 – 3.74
Fiji’s constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
… In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example, to discuss the outcomes of the 2014 election. At times such gatherings include robust political criticism of FijiFirst and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.
… some uncertainty remains about the permissible limits on public commentary. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy.
111. According to an advice prepared for the Refugee Review Tribunal by DFAT on 26 June 2013[7], DFAT was not aware of reports of ordinary individuals who were 'known' to be opposed to the regime being subject to harm unless they had also publicly expressed opposition to or criticised the regime. Nor was DFAT aware of any ordinary or past members of Fiji political parties being subjected to harm unless they were also high-profile politicians or vocal opponents of the regime. With regard to prominent opponents of the Bainimarama regime, the advice states:
[7] FJI42283 – DFAT Report 1517, 26 June 2013
We are aware of a number of cases where prominent individuals who are (or are seen as) regime opponents have been subjected to harm by the regime. This is particularly so if they have publicly expressed criticisms of the regime.
Such individuals would most likely be subject to monitoring and intimidatory threats. A number have also been charged with offences by the regime, often under the 'Public Emergency Regulations/Public Order Amendment Decree' or subject to politically-motivated investigations by the Fiji Commission Against Corruption (FICAC) as a form of harassment. These are likely to continue in the process for Political Parties to register as Political Executives and Board Members financial records have been published for public scrutiny. Individuals targeted in this way include politicians, chiefs, Methodist church leaders, journalists, and human rights activists. As a result of such charges, individuals have also been subject to some restrictions on their travel, however health related travel by these individuals has been allowed.
For the most part the regime is targeting potential political opposition through manufacturing “legitimate” means of intimidation and harassment through its political parties decree which requires the financial position of all candidates and their children to be published. We suspect the regime will use this information to pursue corruption or ‘unexplained wealth’ charges against potential political leaders.
112. With regard to persons who have engaged in anti-regime protests in Australia, the advice states:
…ordinary Fijians participating in anti-regime protest activities outside of Fiji could potentially be subject to harm upon returning to Fiji, although generally only high profile activists were targeted by the regime. DFAT was aware of some cases where human rights activists had been threatened by the regime after participating in high profile activities where views critical of the regime were expressed.
113. The DFAT advice also suggested that people who have come to the attention of the authorities and been subjected to various forms of punishment in the past were also at risk of future harm:
This category of people is at a reasonable risk of harm on their return to Fiji. Individuals who have been identified in the past by the regime as opponents or critics would generally be closely monitored by the regime. Such individuals would be well known to the regime, particularly if they have suffered punishment in the past. We have heard of ongoing harassment of individuals whilst they are abroad from those in the regime threatening them should they return to Fiji.
We are aware of a number of cases where individuals in this category have been subject to monitoring and intimidatory threats, and where they have also been charged with offences by the regime, often under the 'Public Emergency Regulations/Public Order Amendment Decree'. As a result of such charges, individuals have also been subject to restrictions on their travel.
114. Family members of those in each of the above categories were said to face a similar, but generally lower, threat of harm.
115. The DFAT advice indicates that there were no known cases of unsuccessful protection visa applicants or persons returning from periods abroad being targeted by the regime, unless they fell into the categories of persons described above.
Mereoni Kirwin, PISAI and Fiji Native Government in Exile
116. Advice from DFAT in July 2016[8] indicates that in August 2015, a group of individuals apparently associated with a previously declared 'autonomous Christian State' based on a traditional Fijian province - the Ra Sovereign Christian State - were arrested and charged with sedition and urging political violence (section 65 (1) of the Fiji Crimes Decree 2009 refers, for which the maximum penalty is 15 years imprisonment). This group had reportedly been conducting 'military-style training'.
[8] DFAT, COUNTRY INFORMATION REQUEST REPORT NO. CI160713115600374: Fiji: Country Information Request: PISAI and Fiji Native Government in Exile, 27 July 2016.
117. In addition, two other groups of arrests occurred in 2015 on the charges of inciting sedition - one in early 2015 and another in August 2015, immediately after the arrests noted above. Those arrested in these two groups were charged with sedition and causing communal antagonism (section 65 (2) of the Fiji Crimes Decree 2009 refers, for which the maximum penalty is 10 years imprisonment). Those arrested were also apparently associated with two 'autonomous Christian states' – the Ra Sovereign Christian State referred to above and the Nadroga-Navosa Sovereign Christian State which had been declared earlier in 2015.
118. In total, the three groups of arrested persons included more than 60 people. In all three instances, those charged were released on bail and legal processes remain underway. Most recently, sixteen of those accused with causing communal antagonism (that is, not those charged with urging political violence) appeared in court on 22 July 2016. The matter was however rescheduled with the trial now expected in February 2017. Bail was extended until that time. There have been no further arrests for sedition since August 2015.
119. DFAT advised that the Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji. In the case a person returning to Fiji was accused of or suspected to have been involved in such activities, it is possible that they would be arrested and prosecuted for such activities.
120. Ms Mereoni Kirwin has been banned from returning to Fiji by the Fijian government[9] and has been associated with the groups in the Fijian provinces of Nadroga and Ra who were arrested and charged with sedition after unilaterally declaring an independent Christian state.
[9] Koroi, N, Vakasukawaqa, A and Naidu, S 2015, ‘Kirwin Banned’, Fiji Sun, 29 August < Accessed 28 January 2016 <CXBD6A0DE17588>; ‘Fijian prime minister Frank Bainimarama vows to jail dissidents planning to overthrow government’ 2015, Agence France-Presse (AFP), 31 August, ABC News < Accessed 21 October 2015 <CXBD6A0DE14843>; Armbruster, S 2015, ‘Fiji PM ‘distracts’ with overseas plotter threat’, SBS News, 31 August < Accessed 15 January 2016 <CXBD6A0DE17506>; ‘Fijian dissidents declare new nation’ 2015, Cook Islands News, 4 September < A report in The Cook Islands News referred to a promise by Fiji’s Prime Minister Bainimarama ‘to jail the dissidents, including those based overseas’ and stated that ‘[a]bout 70 people have now been arrested and charged with sedition over recent months’. The report stated:
Fiji’s prime minister has promised to jail the dissidents, including those based overseas, who he claims have been plotting to overthrow his government. About 70 people have now been arrested and charged with sedition over recent months, Fiji media has reported. Bainimarama has publicly vowed to crush any attempt at insurrection. He said that those allegedly plotting against the country included “certain high profile figures in Australia”, without referring to Oni Kirwin by name.
His comments came after Immigration Department director Nemani Vuniwaqa confirmed to the Fiji Sun that Bainimarama had banned Australian-based Fiji-born Mereoni Kirwin from entering the country because she was “in attempts to form a so-called Christian state in the provinces of Ra and Nadroga”[10].
[10] ‘Fijian dissidents declare new nation’ 2015, Cook Islands News, 4 September < Accessed 29 January 2016 <CXBD6A0DE17602>
122. An SBS News report, dated 31 August 2015, referred to the detention of more than 60 people in Fiji who were associated with a Christian secessionist movement referred to as the ‘Ra and Nadroga Christian state’. The report indicated that Ms Kirwin is one of the lead figures in this movement. The report stated:
A threat by Fiji’s prime minister to “track down” and jail Fijians living in Australia and elsewhere who support a Christian secessionist movement has been dismissed as a diversionary tactic from domestic problems.
More than 60 people allegedly linked to anti-Muslim separatists have been detained in Fiji, accused of plotting to create a breakaway state on the western part of the main island of Viti Levu. Their supporters in Australia have vowed to fight on and are raising a legal defence fund.
“I’m not frightened or scared at all,” said Oni Kirwin, who describes herself as attorney-general of the Ra and Nadroga Christian state. “There is a takeover in Fiji and it is not a good one. We’re concerned by Muslims. Their influence is very, very high.”
Ms Kirwin blames the 2013 secular constitution introduced by prime minister Voreqe Bainimarama, guaranteeing equality for all Fijians. She points to Muslims holding high office in the Bainimarama government, including attorney-general Aiyaz Sayed-Khaiyum. About seven per cent of Fiji’s population is Muslim.
The Fiji-born, Australian-based Ms Kirwin has now reportedly been banned from returning to Fiji. Some of those detained in Fiji for allegedly plotting to create a breakaway Christian state are also accused of being involved in ‘military-style’ training.[11]
[11] Armbruster, S 2015, ‘Fiji PM ‘distracts’ with overseas plotter threat’, SBS News, 31 August < Accessed 15 January 2016 <CXBD6A0DE17506>
123. The SBS News report also referred to a statement made by Prime Minister Bainimarama in which he issued a warning to Fijians living overseas who supported the Christian secessionist movement. The relevant information read:
Prime minister Bainimarama on Friday issued a warning to Fijians living overseas who support the Christian state movement.
“If you encourage sedition you are committing a serious offences [sic]. If you urge violence in Fiji, you are committing a serious offence. The hand of the law is very long and authorities will not rest until you are brought to justice,” he said.
“People behind this internationally don’t believe in democracy or listen to the will of the people. They want to impose their will on everyone else.
“They are enemies of the state and enemies of the Fijian people. They are enemies of investment and they are enemies of a modern Fiji. They are enemies of a prosperous Fiji and we are going to track them down and bring them to justice.”[12]
[12] Armbruster, S 2015, ‘Fiji PM ‘distracts’ with overseas plotter threat’, SBS News, 31 August < Accessed 15 January 2016 <CXBD6A0DE17506>
124. No specific information is available to the Tribunal regarding the treatment of members of Ms Kirwin’s Australian organisations, PISAI and the Fiji Native Government in Exile.
Treatment of indigenous Fijians
125. The DFAT Country Report provides the following advice with regard to the position of indigenous Fijians[13]:
[13] DFAT Country Report - Fiji, April 2015, 3.1-3.3 and 3.27-3.30
…Fiji has substantial populations of indigenous Fijians and Indo-Fijians. Between 1946 and 1986 Indo-Fijians were more numerous than indigenous Fijians. Due to lower birth rates and high rates of emigration, numbers have since declined, and indigenous Fijians now constitute approximately 60 per cent of the population.
Since 2009, the government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. It has reformed or removed racially-based aspects of the political system (including by abolishing separate ethnic-based voter rolls and the Great Council of Chiefs). The 2014 election suggested that a strong majority of Indo-Fijians and a significant plurality of indigenous Fijians support this agenda. Without discounting the importance of race in communal and political relations, Fiji is an increasingly multi-racial and racially integrated country. For example, Fijian youth increasingly support a multi-racial Fiji and racial slurs are now generally considered a social taboo.
Land rights provisions remain important to understanding ethnic relations in Fiji. The reforms undertaken by the government between 2010 and 2013 to Fiji’s land ownership systems are consistent with its attempts to de-racialise and democratise Fijian politics. However, there remains a fundamental division between Indo-Fijians and indigenous Fijians based on the limitations around land ownership.
…
As a result of the government’s attempts to de-racialise Fijian politics, certain elements of the indigenous Fijian administration have been disbanded, marginalised or amended. The dis-establishment of the Great Council of Chiefs in 2012 is a representative example. The Great Council of Chiefs had previously been a prominent political institution in Fiji’s national politics, serving as a key policy advisory body from the 1870s until 2012. Under the 1997 Constitution, it had the authority to appoint 14 of 32 members of the Senate and to decide on the appointments of the President and Vice President. It was a key symbol of indigenous Fijian unity and strength. Its disbandment therefore represents the removal of a significant element of Fiji’s long-established system of positive discrimination towards indigenous Fijians. Its removal provides more equal voice to all Fijians, and would be difficult to characterise as discrimination against indigenous Fijians.
The changes to indigenous land rights legislation provide a further example of the government’s gradual limitation of previous systems of positive discrimination towards indigenous Fijians (see more detail above at ‘Land Rights’).
There have been some instances where villages/areas that have been seen to be pro-opposition or anti-government have been denied development opportunities.
126. Overall DFAT assesses there is no official discrimination against indigenous Fijians.
Treatment of Christians
127. The DFAT Country Report advises generally that the 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion. The Constitution is non-discriminatory on the grounds of religion and provides specifically for protection from religious discrimination. Religious freedom is observed in practice[14].
[14] DFAT Country Report - Fiji, April 2015, 3.35
Findings and reasons
128. The Tribunal formed the impression that the applicants’ evidence was generally credible and truthful although it is concerned that some evidence that has been presented as to the applicants’ experiences in Fiji has been exaggerated or embellished.
129. The Tribunal accepts that both applicants were civil servants in supervisory positions in Fiji. The Tribunal accepts that the second applicant, in particular, worked in a role in Fiji’s civil service that required her to have contact with the Prime Minister’s office. The Tribunal accepts that the second applicant formed the impression in the course of her work that public funds, including foreign aid, were being inappropriately used by the Bainimarama regime. The Tribunal is not satisfied on her evidence, however, that the second applicant was aware of any specific, sensitive or incriminating information about that office’s dealings or that she held a position within the civil service of particular prominence.
130. The Tribunal accepts that the applicant was involved in a dispute with [Officer A] over a certificate of fitness he issued in relation to his brother’s van. The Tribunal accepts, based on the consistency of the evidence that has been presented on the issue, that the applicant was on one occasion taken to a Naval base and subjected to degrading treatment. The Tribunal is also prepared to accept that [Officer A] and his associates continued to act in a threatening and intimidatory way towards the applicant whilst he remained at work in Fiji.
131. The Tribunal is not satisfied that the applicant was taken on a second occasion to a vacant block in [City 2] where he was threatened with a rifle by soldiers and pushed. This claim was made for the first time at the Tribunal hearing. The applicant’s explanation for the omission of this claim from his evidence to the Department, that he could not think of everything, was unconvincing. The Tribunal is not satisfied that this significant event, if it genuinely occurred, would slip the applicant’s mind when asked about his experiences of past harm in Fiji in the visa application forms and at the Departmental interview.
132. The Tribunal is also not satisfied that [Officer A] or his colleagues were visiting the applicant’s home on a near daily basis whilst the applicant remained in Fiji or once or twice a week after his departure as suggested by the second applicant at hearing. It seems implausible to the Tribunal that such frequent visits would be made, given the nature of the dispute. The applicants’ evidence to the Department also did not suggest that visits were taking place with such frequency or that they were occurring whilst the applicant remained in Fiji. The Tribunal is nonetheless satisfied that some visits were made, given the consistency of the evidence on this point.
133. As suggested to the applicants at hearing, [Officer A’s] interest in the applicant appears to have stemmed from a desire to obtain a financial advantage or simply a show of power. There is no suggestion in the evidence that, at the time they were in Fiji, either applicant was involved in politics or the public expression of criticism of the military regime. Given the passage of time and the fact that the applicant’s employment with [Government Department 1] in [City 2] has ended, the Tribunal is not satisfied that there is a real chance or risk that [Officer A] or his associates would have any ongoing interest in the applicant arising from their past dispute.
134. The Tribunal has also considered the applicants’ activities in Australia in assessing whether there is a real chance or risk of them suffering serious or significant harm. The Tribunal is satisfied on the evidence before it that the applicants have attended several protests in Australia criticising the Bainimarama government and its policies. The Tribunal is satisfied that the applicants are active members of Mr Kirwin’s two organisations, PISAI and the Fiji Native Government in Exile. The Tribunal is further satisfied that evidence of the applicants’ activities has been published on [social media] and in the mainstream media reporting of at least one of the protests in Australia and Fiji. The Tribunal is also prepared to accept that the applicants may have been recognised whilst undertaking such activities by close associates of the Prime Minister with whom the applicants worked in Fiji’s civil [service].
135. The Tribunal is satisfied on the evidence before it that the applicants genuinely hold the opinions they have expressed in their application and at the protests they have attended. Accordingly, the Tribunal is satisfied that the applicants have engaged in conduct in Australia otherwise than for the sole purpose of strengthening their protection claims. The Tribunal has not, therefore, disregarded such conduct pursuant to s.91R(3) for the purposes of s.36(2)(a).
136. The country information before the Tribunal indicates that there has been a shift in the environment for the public expression of criticism of the Bainimarama government since the 2014 elections. Although a government led by Prime Minister Bainimarama remains in power, the country information referred to above indicates that public commentary on political issues, including criticism of government policies, is now permitted and occurs regularly. Public gatherings are permitted, including, for example, to discuss the outcomes of the 2014 election. Private discussion of political matters is unrestricted and personal blogs and other forms of social media operate with relative freedom. Whilst the information suggests that senior members of opposition political parties (i.e., those running for office) are at a moderate risk of being monitored and intimidated by security services and leaders of opposition political parties are at a moderate risk of being harassed, including through the judicial system, neither the applicant nor the second applicant claim to be members of a political party.
137. Although the Tribunal has accepted that the applicants have both been relatively active members of Ms Kirwin’s organisations it notes that they do not hold elected offices within the organisations and have no public profile as leaders of the organisations. The applicants both described themselves as “ordinary members” at hearing. Although the applicant did initially describe himself as a senior member, he clarified at hearing that by this he meant that he was a foundation member and had led some meetings and prayer sessions. The applicant’s evidence indicates that they are part of a cohort of approximately 600 indigenous Fijians in Australia who have joined Ms Kirwin’s organisations in the last couple of years.
138. The Tribunal has carefully considered the public warning reportedly given by the Fijian Prime Minister and is satisfied that it may have been made in reference to Ms Kirwin and senior leaders of her Australian organisations as well as those involved in the Christian secessionist movement in Nadroga and Ra. The Tribunal notes that at least one report indicates that the warning was given as a tactic aimed at diverting attention away from domestic political issues. Nonetheless, the Tribunal accepts that the Fiji government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji. The Tribunal is not satisfied that the applicants’ activities in connection with Ms Kirwin and her organisations, including their presence at protests and social media activities, are of a nature that would lead to a real risk or chance of them being of suspected of inciting sedition or urging political violence in Fiji.
139. The Tribunal accepts generally that the Bainimarama government is sensitive to criticism and that there is evidence of intimidation, arbitrary arrests and detention and physical harm perpetrated against opponents and critics of the government in the past. However, the general country information indicates that the environment for the expression of political opinion in Fiji has been much more open since the 2014 elections. The country information, including that submitted by the applicant, indicates that prominent individuals who have publicly expressed criticism of the government may still be at risk of forms of harm including monitoring, harassment, travel restrictions and intimidation, including through the legal system. The Tribunal also accepts that there continue to be incidences of police and military brutality directed towards civilians, including criminal suspects. The Tribunal is not satisfied on the country information that ordinary Fijians, even if they are known to oppose the government or its policies, face a real chance or risk of serious or significant harm.
140. The Tribunal has considered the applicants’ circumstances cumulatively, including their prior dispute with members of the military, their roles within the Fijian civil service, the nature of their political activities in Australia and the publication of photographs of their political activities on social media and in the mainstream news.
141. The Tribunal is satisfied that as a consequence of their departure from Fiji and activities in Australia, the applicants have been forced to relinquish their roles within the Fiji civil service. The Tribunal further accepts that the applicants may experience some difficulty resuming public employment as a consequence of their political activities in Australia. The applicants have not claimed to fear economic harm in Fiji and, given their qualifications and experience, the Tribunal is not satisfied that the applicants would be unable to find alternative employment such that there is a real chance or risk of them suffering economic harm amounting to persecution or ‘significant harm’ as defined.
142. The Tribunal is also prepared to accept that there is a real chance or risk that the applicants may face some criticism or verbal insults from former colleagues, including members of the [military], who are aware of and disapprove of the applicants’ activities in Australia. The Tribunal is not satisfied that such treatment would in itself amount to serious or significant harm. Nor is the Tribunal satisfied that there is a real chance or risk of the applicants suffering any other physical or mental harm which would amount to persecution or significant harm such as arrest, being taken to the army barracks or naval base and mistreated, monitoring, intimidation or harassment. The Tribunal does not accept, having regard to the evidence, that the applicants have a sufficiently prominent or public political profile to cause them to be of interest to the Fijian authorities, should they return to Fiji now or in the reasonably foreseeable future.
143. The Tribunal has considered the applicants’ claim to fear serious or significant harm on religious grounds. The Tribunal is not satisfied that the claims advanced at hearing and in [the representative]’s submissions are supported by the independent country information. As put to the applicants at hearing, the DFAT Country Report indicates that Christians are generally free to practice their religion and would not be at risk of adverse treatment unless they are also a high profile opponent of the government. In view of the Tribunal’s findings above as to the applicants’ political profiles, the Tribunal is not satisfied that the applicants face a real chance or risk of serious or significant harm for any reason related to their religion.
144. Similarly, the Tribunal is not satisfied that there is support for the applicants’ claim to fear serious or significant harm as indigenous Fijians in the independent country information. While the Tribunal accepts that there have been some changes directed at removing positive discrimination in favour of indigenous Fijians, particularly in relation to governance and land rights, the Tribunal is not satisfied that there is a real chance or risk of the applicants being seriously or significantly harmed as a consequence of their indigenous Fijian ethnicity.
145. For the reasons given above, the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. They do not, therefore, satisfy the criterion set out in s.36(2)(a).
146. Having concluded that the applicants do 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 any of the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
147. For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. It follows that none of the applicants are able to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, the applicants cannot be granted the visa.
DECISION
148. The Tribunal affirms the decision not to grant the applicants Protection visas.
R Homan
Member
Key Legal Topics
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Standing
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