1504288 (Refugee)

[2016] AATA 4970

1504288 (Refugee) [2016] AATA 4970 (17 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504288

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Chantal Bostock

DATE:17 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2016 at 11:11am

CATCHWORDS

REFUGEE – Protection visa – Fiji – Imputed political opinion – Uncle’s involvement with military coup  - Accused of theft – Harassment by policy – Economic situation – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

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 on 25 November 2014 and the delegate refused to grant the visa on 23 February 2015.

3. The applicant appeared before the Tribunal on 31 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

7. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.  

14. 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 criteria

15. 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’).

16. ‘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.

17. 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

18. 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

19. The issues in this case are whether the applicant has 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 him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The Visa Application

20. The applicant lodged a protection visa application on 26 November 2014. He claimed that his uncle, [Mr A], was accused of [participating in] a plot to kill Commodore Bainimarama in the 2006 coup. His uncle went to Australia to seek refuge and died due to a [medical] condition. He stated that “due to my uncle’s involvement in the coup, all his family members, including me have been victims of the coup, where the government just refused to help us with school assistance, depriving us of basic rights to education.” He stated that “it has harmed me as an individual because it is impossible to develop to my full potential”. As his uncle was the sole breadwinner:

    [S]ince [my uncle’s] death, it has become impossible to make ends meet. In this milieu of economic hardship against a backdrop of military threats life has been difficult for me and my family.

21. The applicant stated that he feared “poverty”, “never getting a proper education and getting work to support me and my family”. In addition, while he dreamt of completing his education, the political situation in Fiji dictated otherwise. The applicant claimed that he feared returning to Fiji as Bainimarama ruled “by the gun” and had a “personal commitment to stop all people who he claims as threats”, such as the applicant’s uncle and his family.

22. In support of his application, the applicant submitted material, including media articles and a letter from his sibling, who stated that the applicant was raised by his deceased biological uncle and that “this relationship has made securing a steady employment very difficult for him”.

    The Interview with the Department

23. The Tribunal listened to the recording of the interview between the Departmental delegate and the applicant, held on 16 February 2015. At the beginning of interview, the delegate asked the applicant whether there were any significant details missing from his application form. The applicant corrected a number of minor errors.

24. The applicant claimed that he lived with his uncle, the sole bread winner, and aunt in Fiji as his parents were divorced. His uncle was [a member] behind a plot to kill Fiji’s Prime Minister. One day, the military came and took his uncle. He was detained and released. His uncle fled to [Country 1] in 2008. He then went to Australia in 2011, where he was granted refugee status. His uncle never returned to Fiji. He died in Australia of a [medical condition] in 2012. As the applicant was living with this uncle and his aunt, he was no longer able to attend school. When his uncle left, his aunt told him that he would need to work harder as his uncle had less money to send the family.

25. The applicant stated that the military came to his home and asked about his uncle. He told them the truth, namely that his uncle was in [Country 1] and they left. The military last came to his home in 2010.

26. The applicant also claimed the election was rigged. The government controlled everybody. The PM could call the military to beat up a person. The elected government continued to beat people. One boy, who was accused of robbery and escaped prison, was beaten to death by the military. There was a police cover up about the boy’s real cause of death. The PM stood by the military. People lived in fear. The public needed freedom. The government controlled the media, including the Daily Times. The government was in a lot of debt and schools were not receiving their funding.

27. If he returned to Fiji, it would be a hard life. There was no education, no life and no future. He would return to square one. The applicant had been unable to find an attachment to a [workplace] as [an occupation].

28. The applicant further claimed that in October 2013, his friends had accused him of stealing [an item]. He was taken to the station and tortured. The other accused boy was already at the station. His aunt came to the station and secured his release. He only raised this claim during the interview as he had previously focussed on the reasons related to his uncle. If he returned to Fiji, he feared the authorities would arrest, torture and kill him.

    The hearing

29. The review applicant gave evidence at the hearing. Since arriving in Australia, he has been living either in [one location] with his uncle [or] in [another location], as he works as a casual [in] [Town 1]. He does not have permission to work from the Department.

30. He lived from birth until the age of [age] at [an address] in [Town 2] with his father, stepmother and his father’s [children]. He then moved to his uncle’s house in [Town 3], where his uncle, [Mr A], his aunt and their [children] lived. He used to stay with his uncle before moving in with him.

31. After much fighting, his parents divorced when he was [age] years old. His mother returned to her village while he remained with his father. His parents are alive and he contacts them by telephone on average once per month.

32. The applicant gave details about his siblings. His [sister], who lives in [Town 2], works [and] is married with [children]. His [age]-year-old brother used to live in [Town 3]. He was falsely accused of [an offence] in 2010 and beaten by the police. He was not charged. He worked in a [workplace] and studied from 2010 until 2015. When the case was re-opened in 2015, he fled to the highlands, where he now lives. The applicant’s [age]-year-old sister takes care of her baby and lives in [Town 2] with her husband. His [age]-year-old brother works [in] [Town 3 and finally his [age]-year-old brother is undertaking [a course] at [an educational institution].

33. The applicant outlined his educational history, which includes attending primary school from [year] until [year] and secondary school from [year] until [year] in [Town 2]. He completed the first year of a three-year course [at] [an educational institution] in 2013. He could not complete the course as he did not have enough money to support himself financially.

34. His father financially supported him until the end of his secondary school. However, he was thrown out of his father’s home in January 2012. His father was angry because of the difficulties in his marriage to the applicant’s mother and told his brothers to leave the family home at the end of secondary school. The applicant worked at a [workplace] in [Town 2] in 2010. The applicant also [did other work] in 2012 and 2013. Sometimes his aunt and uncle would give him some money but they had their own children to support. He did not have to pay them rent, but he paid for bills. He had to stop studying as he was not earning enough. He worked [at] night and would fall asleep in class during the day. The applicant was paying the course fees, which were [an amount] per unit, by instalment. He obtained his passport in 2010, upon the advice of his father.

35. The applicant arrived on a one-month visitor visa in [City 1] on 19 December 2013 with his two cousins, who were the children of his uncle [Mr A]. He spent two days in [City 1] and then travelled to [Town 1], where he [worked]. His uncle [Mr A] died [in] [Town 1] in [2012]. His body was repatriated to Fiji. He and his cousins came to compile the documents relating to his uncle’s death, including his death certificate and return them to Fiji. His uncle arrived in Australia in 2011 and according to the applicant’s cousin, was granted a protection visa. He was not, however, sure. His uncle was accused of [deleted]. The applicant remained in Australia and lodged his protection visa on 26 November 2014. When asked about the delay in lodging his protection visa, the applicant explained that when he told his uncle [about] his experiences in Fiji, he was advised to lodge the protection visa. He stated that all the information in his protection visa application form was true and correct. The form was incomplete, however, as he needed to get more information from home.

36. When asked why he feared going back to Fiji, the applicant stated that 2010 was a tough year. His father wanted him to leave the house but the applicant did not want to leave, as it was the responsibility of parents to protect their children. His father “often”, in fact up to “50 times”, called the police. He asked the police to speak to his father and asked them where he could go. The police suspected him of theft in his home area because he had no place to stay, although he was not charged. Each time the police came, they threw him into the police car and threatened him. He was taken to a cell, where he spent up to 3 nights. The police released him. He waited until the night, when he would call his sister. If his father was not home, he would go home, have a shower and eat food. When asked why he stayed in the family home until January 2012, the applicant stated that he would only go when his father was not home. He slept at a friend’s house in the same neighbourhood. When asked why his father called the police when he could have asked the applicant to leave the family home, the applicant stated that he did not know where to go and the police would hang him by the neck as they automatically blamed him. The Tribunal also asked why the applicant did not move to his uncle [Mr A]’s house. He stated that he was embarrassed as it was his father’s duty to care for him and he did not want to burden his uncle.

37. He and his best friend, [Mr B], were accused of [a criminal offence] in [Town 2]. His best friend lived 5 minutes away from his house. His friend was charged in 2010/2011. His friend was murdered last year. His friend’s parents looked for him. The police blamed each other. Eventually the hospital called them and they found their son at the morgue, with blood on his face. The applicant’s siblings told him to stay in Australia otherwise the same thing would happen to him. The applicant explained the delay of 4 years, stating that old cases were being re-opened. He did not mention his best friend earlier as the Department had told him to discuss himself and not his friend.

38. The applicant stated that his name was on police records and that the authorities would know when he returned to Fiji and he would be threatened, if something came up. He feared that he would be murdered like his best friend.

39. There was no mention of these claims in his application form as he was concentrating on his claims arising from his uncle [Mr A], as he had witnessed his uncle’s and his family’s struggles when he was living with them. His uncle was [an occupation] and [involved with the] SDL and Qarase. He was involved in the 2006 coup. The army took over in 2006 and his uncle was jailed for [for a short period of time] in 2006. It was not clear why he was jailed. After that, he was removed from his workplace. His uncle found it very difficult to find other work. He went to [Country 1] at the end of 2008 and then Australia in 2010. The army and police work hand in hand. The army continued to visit his uncle’s house. His family’s name was on a blacklist. His children are ineligible for tertiary scholarships. He was worried that he would not be able to obtain a scholarship because of his ties to his uncle. The applicant was “not worried about getting a scholarship” as he tried to achieve by himself and had never relied on the government.

1. The applicant’s name was on a list of [suspects]. The applicant was accused of stealing [an item] in [Town 3] in October 2013. Whenever things went missing, his name came up all over Fiji. He was detained by the police for 5 hours, during which time the police beat and threatened him. His aunt, the wife of [Mr A], secured his release. She told the police where the applicant was during the [crime]. When asked why he returned to his uncle’s house and resumed his studies, if he was so fearful, the applicant stated that it was the only place he could stay and he was preparing to run away.

2. He feared that because of his uncle, his name was on a black list. Their family was blocked from receiving scholarships. The police continue to drive past his uncle’s place every day at about 6 pm for the past 10 years, since the coup occurred. They focussed on his uncle and asked about the previous government and money. He and his family told them that they did not know anything about money and carried on their own business. When asked whether he had told the police that his uncle had gone, the applicant stated that he never told the police that his uncle was no longer living there. In fact, he had been told not to tell the military or the police that his uncle was overseas. The Tribunal asked the applicant why the police continued to seek the whereabouts of his uncle, when they could have regard to the airport list. The applicant stated that because of his uncle had worked at the airport, he was smuggled out.

3. He was scared because his name was in the system. Immigration would notify the authorities, when he returned. Whenever there was another incident, and there was another break and enter, he would be taken back to jail. Fiji was a small country and the authorities would come and get him. He would be falsely accused, detained, tortured and released. They would always come for him. He would end up like [Mr B]. When asked why he had not raised his friendship with [Mr B] previously, the applicant stated that at the first interview, he was told to only discuss matters concerning him and not his friends. The Tribunal put to the applicant that the lack of access to tertiary scholarships did not appear to constitute serious or significant harm. The applicant reiterated that he feared that his name was on a government list. The reason he left Fiji was because his uncle was blamed for things he did not do and could not get work. He feared that would meet the same fate as [Mr B], His family at home told him that he might die as he was in the same group and was same age.

4. The applicant submitted to the Tribunal news articles and photographs printed from the Fijilink website. He stated that the media, such as the Fiji Times and the Daily Times, was controlled in Fiji and that people from inside Fiji gave information to Fijilink, who created the website from overseas. He explained that Bainimarama’s brother-in-law, who had previously been convicted of manslaughter, had been appointed Prisons Commissioner.

5. The Tribunal raised with the applicant the fact that there was no independent evidence of his familial ties to his uncle, [Mr A] or of his uncle’s involvement in the 2006 coup. Furthermore, there was no independent evidence of his relationship with [Mr B]. The applicant stated that information was available on Google. The Tribunal granted the applicant an additional two weeks in which to lodge further information. The Tribunal informed the applicant that movement records indicated that his uncle had not been granted a protection visa. It also informed him that it would write to him under s 424A of the Migration Act about various matters, including inconsistencies in his evidence.

6. The Tribunal put to the applicant information contained in DFAT’s Fiji Country Report on Fiji dated 14 April 2015. It put to him that elections were held in September 2014 and that Fiji was “generally stable and secure”.[1] The applicant stated Fiji was not democratic and Fijians saw things differently. Fiji was controlled by the military. The Tribunal put to the applicant that “for low profile and non-political matters, the judicial system [was] generally capable of providing effective state protection”.[2] The applicant again referred to Bainimarama’s brother-in-law, who was paid his salary while in prison. The Tribunal put to him that while there were credible allegations of violent treatment of prisoners by the military, the frequency of such incidents had diminished in recent years.[3] Furthermore, DFAT assessed that the likelihood of any individual being subjected to cruel, inhuman or degrading treatment or punishment was low.[4] The applicant stated that things were still happening in Fiji and the situation was different on the ground. The Tribunal put to the applicant that DFAT assessed those at risk as high-profile public figures and the information indicated that he was not a high profile public figure.[5] The applicant stated that his friend was not high profile and things nevertheless happened to him. Brutality carried on as the PM stood by his men. The Tribunal put to the applicant the Freedom in the World 2015 report on Fiji dated 15 April 2015, in which it was stated that the 2013 Constitution granted amnesty to those involved in the 2006 military coup.[6] The applicant stated that the 2013 Constitution was a cover-up of government action. Many died and many were tortured under the military government. The military and the police continued to run the country and control the media. People still lived in fear.

   [1] DFAT’s Fiji Country Report on Fiji dated 14 April 2015 at [2.48].

   [2] Ibid at [5.23].

   [3] Ibid at [4.8].

   [4] Ibid at [4.12].

   [5] Ibid at [3.74].

   [6] Freedom in the World 2015 - Fiji, dated 15 April 2015 at “F”.

7. Following the hearing, the Tribunal wrote to the applicant under s 424A of the Migration Act and invited, in writing, his comment to particulars of the above mentioned adverse information which, if relied on, would form the reason or part of the reason for affirming the decision under review. The Tribunal received a response from the applicant on 14 September 2016. In relation to his delay in applying for protection, the applicant stated, amongst other things, that he was “indeed in fear” of returning to Fiji but was “not aware of the processes of the protection visa let alone where to start from”. In relation to his uncle [Mr A], he stated that his uncle had applied for a protection visa because that was what his uncle told him. His uncle was jailed for his alleged involvement against the coup government, as evidenced by the media articles referred to by the applicant. His uncle worked as [an occupation] in [Country 1]. When he could not obtain a permanent [position], he was unable to return to Fiji. He sought asylum in Australia, where his political friends, who were also members of the SDL had applied. He attributed the inconsistencies in his story to nervousness but wished to maintain that the military last visited his home in 2010 to query his uncle’s whereabouts. When travelling to [Country 1], his uncle was stopped from boarding a flight because his name was on a black list. The applicant provided further statements from the spouse and eldest child of [Mr A], the marriage certificate of [Mr A and his wife] and a statement from [the] father of [Mr B], whose Fijian address was given. That letter provides, amongst other things, as follows:

   I’ve known [Mr A] since his childhood days as being a close friend of my late son [Mr B] who died in the hands of the police and military in 2014…From the experience of what happened to my son, I do not want any other father to endure my pain and loss…I humbly request your most favourable consideration to look through the veneer of the Refugee Convention and subsequent Protocol and seriously consider the plight of [Mr A] in light of Fiji’s current turbulent political situation especially with his fear, alluded to above, of not wishing to return home to Fiji as yet.

   Country Information

8. As required by the abovementioned Ministerial Direction, the Tribunal had regard to DFAT’s country report on Fiji, published in 2015. While there is no doubt that Fiji has experienced recent political turmoil, the report indicates that it is “now generally stable and secure”:[7] Furthermore, the report provides that:

   The 2006 coup was non-violent and did not affect the country’s overall security. Elections in 2014 were calm and free of violence…[8] Bainimarama resigned as Commander of the RFMF in 2014. His new political party, FijiFirst, won elections in September 2014 and holds a substantial majority in Parliament. Bainimarama is now Fiji’s Prime Minister.[9]

   [7] DFAT’s Fiji Country Report on Fiji dated 14 April 2015 at [2.48].

   [8] Ibid.

   [9] Ibid at [2.10].

9. Prior to the holding of the 2014 elections, “the interim Bainimarama Fijian Government drafted its own Constitution which was passed in September 2013.”[10] The Constitution “contains a comprehensive Bill of Rights”, which “specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief.”[11] The report acknowledges, however, that “key rights” may be “restricted by law and during the state of emergency.”[12] The report provides that “in practice, credible allegations of violent treatment of prisoners by the military have occurred in recent years”[13]:

   For example, in March 2013 a Youtube video emerged of a prisoner in handcuffs being assaulted by security personnel. The assailants were identifiable and have been dismissed from the police, however no criminal charges had been laid at the time of writing of this report. The interim Prime Minister stated at the time that he would “stand by” the security personnel involved. A similar event occurred in 2012, involving the alleged severe beating of five prison escapees.[14]

   [10] Ibid at [2.8].

   [11] Ibid at [2.23].

   [12] Ibid at [2.24].

   [13] Ibid at [4.8].

   [14] Ibid.

10. The report further mentions the case of [Mr B], who was a suspect in [a criminal offence], who died as a result of his beating at a police station.[15] The report notes, however, that “the frequency of such incidents has diminished in recent years” and that “overall, DFAT assesses that the likelihood of any individual being subject to cruel, inhuman or degrading treatment or punishment is low”.[16]

    [15] Ibid at [4.9 - 4.12].

    [16] Ibid.

11. In terms of Fiji’s economic overview, the report provides as follows:

    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… Fiji has high levels of youth unemployment (approximately 20 per cent).[17]

    [17] Ibid at [2.37].

12. The report states the following in relation to Fiji’s tertiary education system:

    There are several universities in Suva, including both public and private facilities. The government provides higher education loans, in addition to offering university scholarships for the top 600 high school finishers. Since 2014 these scholarships have been awarded on the basis of merit, replacing previous separate scholarship systems for indigenous Fijians and Indo-Fijians. As a result of this change, the majority of scholarships (perhaps 80 per cent) have been awarded to Indo-Fijian students in 2014.[18]

    [18] Ibid at [2.44].

13. The Tribunal also considered other independent reports regarding the situation in Fiji, including the report from Freedom House, published in 2015, mentioned earlier.

    FINDINGS AND REASONS

14. The Tribunal sighted the applicant’s passport at the hearing. Based on the material before it including his passport and his oral evidence at the hearing, the Tribunal is satisfied that the applicant is a citizen of Fiji. For the purposes of s 36(2)(aa), the Tribunal accepts that Fiji is the receiving country. The Tribunal further finds that the applicant is outside his country of origin. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality.

    Does the applicant have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion?

15. As stated earlier, the Tribunal must consider whether the applicant has a well-founded fear of persecution for a Convention reason. If the Tribunal finds that the applicant does not have a well-founded fear of persecution, the Tribunal must then consider whether he meets the Complementary Protection criteria, which are set out above in the decision.

16. The Tribunal considered all the material before it, including the applicant’s oral and written evidence and country information. The applicant made various claims relating to his fear of returning to Fiji, each of which is considered by the Tribunal. When assessing the credibility of the applicant’s claims, the Tribunal had regard to the Tribunal’s Guidelines on the Assessment of Credibility, dated July 2015.

    Claim as a result of the applicant’s uncle’s involvement in the 2006 military coup and being a on a blacklist as a result

17. The applicant claims that he fears returning to Fiji because of his uncle’s involvement in the 2006 military coup. He believes that he will suffer hardship such as restrictions on education and employment as well as threats from the military because his and his family’s name is on a blacklist.

18. Based on the applicant’s oral evidence, the statement from his uncle’s wife and the media articles submitted by the applicant, the Tribunal accepts that [Mr A] is the applicant’s uncle. It also accepts that [Mr A] was accused of being involved in the 2006 [coup]. In light of the country information, the Tribunal also accepts the applicant’s evidence that [Mr A] was detained and released after one week in 2006.

19. The Tribunal, however, does not accept that the applicant is at risk of educational and employment hardship or threats from the military as a result of his uncle’s alleged involvement in the 2006 coup for the reasons that follow. The Tribunal finds that there is no evidence that the applicant’s education was restricted because of his uncle. Based on the material before it, which includes the applicant’s visa application form and his oral evidence, the Tribunal finds that the applicant attended primary and secondary school and one year of university. The applicant gave evidence that he ceased his studies because he could no longer support himself financially and that he did not seek government assistance. Furthermore, he stated at the hearing that he was “not worried about getting a scholarship” as he tried to achieve by himself and had never relied on the government.

20. At the Departmental interview, the applicant stated that he had been unable to find an attachment to a [workplace] as [an occupation]. On the evidence before it, the Tribunal is not satisfied that the applicant was unable to find work in a [workplace] because of his uncle’s alleged involvement in the coup.

21. Furthermore, the Tribunal does not accept that the applicant is at risk of military threats because of his uncle. Throughout the protection visa process, the applicant gave significantly different accounts in relation to this claim. For example, his account differed in relation to when the military last came to his uncle’s house, the frequency of the military’s attendance and what the applicant told the military. While the Tribunal acknowledges that the applicant was “nervous” throughout the process, it does not accept that this explanation accounts for such substantial differences. The Tribunal further finds that even if it accepted the account that the applicant has asked the Tribunal to rely on, namely that the military last came in 2010, the Tribunal is not satisfied that he has a well-founded fear of threats from the military, given that six years have passed since the military last came to his uncle’s house and the 2013 Constitution granted amnesty to those involved in the 2006 coup. The Tribunal does not accept that the applicant has a well-founded fear of being persecuted on account of his uncle.

    Claim relating to the applicant being harassed/detained by the police while he was still living at his father’s home

22. At the Tribunal hearing, the applicant claimed that his father was putting pressure on him to leave home and called the police up to 50 times. He claimed that the police suspected him of theft in his home area because he had no place to stay, although he was not charged. Each time the police came, they threw him into a car and threatened him. He was taken to a cell, where he spent up to 3 nights. He only returned home to shower and eat when his father was not present.

23. The Tribunal does not accept this evidence for the reasons that follow. It does not accept that the applicant’s father would call the police rather than asking the applicant to move out, particularly when the applicant could go to his uncle’s house and did in fact subsequently move in with his uncle. It does not accept the applicant’s evidence that he was too embarrassed to go to his uncle’s house as it was his father’s duty to care for him and he did not want to burden his uncle. Furthermore, the Tribunal notes that the applicant only mentioned this claim during the Tribunal hearing. Given the level of claimed harassment by the police as a result of his own father’s calls to the police, the Tribunal would expect the applicant to have mentioned this claim earlier. The Tribunal does not accept that the applicant has a well-founded fear of being persecuted on account of this claim.

    Claims relating to the applicant being accused of stealing [an item]

24. For the reasons that follow, the Tribunal does not accept that the applicant was accused of stealing [an item] in October 2013. The applicant did not mention the accusation in his written application form. Given that he claimed that he was detained, threatened and tortured by the police, the Tribunal expects that he would make the claim at the outset. However, the applicant only mentioned that he was accused of stealing the [item] at the end of the Departmental interview. After the incident, the applicant returned to his uncle’s house and resumed his studies. He left Fiji and arrived in Australia in December 2013, some three months later. He applied for the protection visa in November 2014, almost one year after arriving in Australia. The Tribunal does not accept the applicant’s explanation for the delay in applying for protection in Australia.

25. Nor does the Tribunal accept that the applicant was best friends with [Mr B]. He made no mention of being best friends with [Mr B] in his written application form or at the Departmental interview. The Tribunal does not accept the applicant’s explanation that he was told to only discuss himself at the Departmental interview and not his friend, particularly when he made claims relating to his uncle. The Tribunal places little weight on the letter from [Mr B’s father], which was submitted to the Tribunal, given its vague content relating to the circumstances of [Mr B]’s death and that it was recently obtained. While his telephone number is listed on his statement, the Tribunal decided not to contact him, given that his identity could not be established over the telephone. The Tribunal does not accept that the applicant has a well-founded fear of being persecuted on account of being accused of stealing [an item].

    Claim that the applicant’s name is on police records

26. The applicant claimed that his name was on police records and that the authorities would know when he returned to Fiji. He claimed that whenever there was a small [incident], he would be taken back to jail, where he would face detention and torture. For the reasons mentioned earlier, the Tribunal does not accept that the applicant was detained and accused of theft when he was living at his father’s house or that he was accused of stealing [an item] in 2013. The Tribunal is not satisfied, on the evidence, that his name is on police records and that he would be threatened by the police.

    Claim relating to the general civil and political situation in Fiji

1. The applicant claimed that there was no freedom in Fiji, the elections were “rigged”, the government controlled the media and the military harmed and killed people. The Tribunal had regard to s 91R(2)(a)-(c) of the Migration Act, which provides that serious harm includes, but is not limited to, the following instances of serious harm: a threat to the person’s life or liberty, or significant physical harassment of the person or significant ill-treatment of the person.

2. In addition to its consideration of the country information cited earlier, the Tribunal had regard to the following extracts from DFAT’s report:

   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.

   A range of decrees in place prior to the 2013 Constitution limits these rights in practice. In particular, The Public Order (Amendment) Decree 2012 permits the Commissioner of Police to prohibit or subject to such conditions as he/she sees fit any procession, meeting or assembly on the grounds of public safety or public order. Under this decree, from June 2012 onward, NGOs, political parties and others were required to seek permits to hold public meetings. At times these permits were withheld (further detail is provided below at relevant sub-sections). The implementation of this policy gradually became less strict, and by late 2014 political groups did not generally need to seek permission to hold public meetings. Police presence was however common at known political events.

   Other decrees which have been used in practice to limit the freedom of expression, assembly and association include the Essential National Industries Decree 2011, Media Industry Development Decree 2010, Political Parties Decree 2013 and the Electoral Decree 2014. Each of these decrees is covered in more detail at relevant subsections, below.

   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.

   However, 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.[19]

   [19] Ibid at [3.70 - 3.74].

3. Furthermore, as previously mentioned, “the likelihood of any individual being subject to cruel, inhuman or degrading treatment or punishment is low”:[20]

   Someone who is seen to have embarrassed the government or the security services would have a higher risk profile.[21]

   [20] Ibid at [4.12].

   [21] Ibid.

4. For the reasons provided earlier, the Tribunal does not accept that the applicant is a high profile public figure in Fiji. It is not satisfied that the applicant has a well-founded fear of being persecuted as a result of the general civil and political situation in Fiji.

   Claim relating to the general economic conditions in Fiji

5. The applicant claimed that he feared poverty, a lack of education and unemployment in Fiji. The Tribunal had regard to s 91R(2)(d)-(f) of the Migration Act, which provides that serious harm also includes, but is not limited, to the following instances of serious harm: significant economic hardship that threatens the person’s capacity to subsist, or denial of access to basic services, where the denial threatens the person’s capacity to subsist, or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. Based on the material before it, including the visa application form and the applicant’s evidence, the Tribunal finds that the applicant completed his primary and secondary schooling in Fiji. It finds that he completed one year of his tertiary studies but withdrew because he could not support himself financially. It placed weight on the applicant’s evidence that he was not worried about getting a scholarship because he wanted to achieve by himself and had never relied on the government. Furthermore, the Tribunal finds that the applicant worked in Fiji, including, amongst other things, at [various jobs]. While the Tribunal acknowledges the country information, discussed earlier, which indicates that the economic situation is difficult in Fiji and that “poverty remains prevalent”,[22] the Tribunal is not satisfied that the applicant’s fear of poverty and lack of education and employment constitute serious harm.

   Is there is a real risk that the applicant will suffer significant harm?

   [22] Ibid at [2.38].

7. The Tribunal also considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Migration Act.

8. The Tribunal does not accept the applicant’s claims that he suffered past harm at the hands of the military or the police in Fiji. Given his past work experience, nor does it accept that he would not be able to find work. Having regard to the material before it, and the Tribunal’s earlier findings, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Migration Act.

9. The Tribunal has considered the applicant’s circumstances individually and cumulatively. 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).

10. 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).

11. 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

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

    Chantal Bostock
    Member