1510146 (Refugee)

1510146 (Refugee) [2017] AATA 2650 (14 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510146
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:14 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 September 2017 at 5:58pm

CATCHWORDS
Refugee – Protection Visa – Fiji – Imputed political opinion – Pro democracy movement – Particular social group – Women in Fiji – Domestic violence – Fear of persecution – State protection – Financial hardship – Witness credibility
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 36, 65, 91R, 91S, 424A, 438, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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
SUMMARY[1]
[1] This information is sourced from the applicant’s protection visa application forms, the delegate’s decision record which the applicant provided to the Tribunal, and the Tribunal file.

The applicant is a national of Fiji aged [age] years. She seeks to be granted a Protection visa under s.65 of the Migration Act 1958 (the Act) on the grounds that she is a refugee or entitled to protection under Australia’s complementary protection provisions.
The applicant travelled to Australia [in] December 2013, using a passport in her name, and holding a visitor visa. She applied to the Department for the protection visa [in] March 2014.
The applicant submitted protection visa application forms and some supporting documents. The focus of her claims was politics; she also mentioned the early retirement age and that her husband had harassed and physically harmed her. The applicant attended an interview with the delegate [in] June 2015 to discuss her claims for protection: the recording is in the Departmental file; her evidence is also referred to in the delegate’s decision record. The delegate refused to grant the visa [in] June 2015, referring mainly to available state protection.
This is an application for review of the decision of the delegate to refuse the visa application, and a summary of the relevant law is provided at Annexure A.
The applicant lodged with the Tribunal her application for review form as well as a copy of the delegate’s decision record. She provided submissions, country information, and statements in support. She was represented in the application for review by her registered migration agent.
The Tribunal also had access to the Departmental file relating to her offshore visitor visa application.
The applicant attended two hearings, on 23 September 2016 and 18 July 2017 to present evidence and arguments. The agent had sought that the first hearing be adjourned to another date, and the Tribunal agreed. The Tribunal also received oral evidence by telephone from four witnesses in Fiji, namely the applicant’s [children] [Ms A], [Ms B], [Mr C], and [relative] [Ms D], as well as oral evidence in person from the applicant’s current partner, [name]. The agent attended both hearings. The Tribunal noted that it was not bound to follow the delegate’s findings and would make its own findings based on the relevant evidence and information before it. The Tribunal put to the applicant areas of concerns about her credibility and the credibility of her claims, as well as difficulties with the witness’s evidence. There was post-hearing(s) correspondence.
Certificates on Departmental files: The Tribunal notes that there were some s.438(1) certificates on certain pages on the Department files. It is appropriate to address the validity of the s 438(1) certificates, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”.
· The Departmental file relating to the protection visa application, [file number], contains a certificate relating to one page, folio 33. The only reason stated in the certificate is that the folio “…contains information relating to an internal working document and business affairs”. That is neither a necessary nor a sufficient basis for public interest immunity. At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificate is not valid it does not trigger the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information can be dealt with and the Tribunal has proceeded to treat the document in the usual way as if there was no certificate. The page is an administrative document of the Department, containing the names of Departmental officers, and is not relevant.
· The Departmental file relating to the offshore visitor visa file ([file number]) contains a certificate relating to three folios (6,14,41). The only reason stated in the certificate is that the folios “…contain information relating to an internal working document and business affairs”. For the same reasons as set out above, the certificate is not valid, it does not trigger the operation of ss 438(3)(a) and 438(3)(b) in relation to how the documents or information can be dealt with, and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate. The pages are administrative documents of the Department, containing the names of Departmental officers, and are not relevant[2].
[2] The Tribunal notes that this file appears to have accidentally included information relating to a third person’s visitor visa application (folios 27-40). These pages are not relevant to the applicant’s case.
The Tribunal has considered available country evidence including the documents provided by the applicant and referred to by the witnesses/ support persons/letters. Further, in accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Fiji, 14 April 2015 (“the DFAT report).
For the reasons set out below, the Tribunal does not accept that the applicant has a well-founded fear of persecution for a Convention reason, nor 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 she will suffer significant harm. The Tribunal has accordingly affirmed the decision of the delegate to refuse to grant the applicant a Protection visa.
CLAIMS AND EVIDENCE
The applicant’s claims and background - Application Forms
The applicant is a [age] year old married woman born in [Village 1], [Island 1], Fiji. She speaks, reads and writes in English and Fijian. Her religion is Roman Catholic; her ethnic group is Fijian. She was educated from [year] until [year] (Primary school until [college]). She married [name] [in] 1979. She was unemployed from [1978] until [1995] (she had [number] children). She attended [university] in [City 1], for one year in 1989. In January 1996, she started work as [Occupation 1] for [Employer 1], in [City 1]. She retired as a [Occupation 1] in December 2012.
She fled Fiji because of the “political crisis”. She believes in a democratic government. However the government in Fiji is a sort of dictatorship and they are denied their rights.
She is a member of [Organisation 1]. In two of the meetings she attended, military soldiers came in and disrupted the meetings, and closed them down. On one of those occasions, [a senior official] of [Organisation 1] was taken to the camp.
She suffered mental and physical harm. She was holding a meeting with the village women concerning their rights in voting for a democratic government and the need for more women in parliament. She was confronted by [a number of] soldiers in civilian clothes who stormed in and shouted at her to stop or she would be dragged to prison. She was frightened.
An issue for her is her early retirement age, from 65 to 55. At that time she still had [a number of her] children still in school. This caused a lot of stress, because she had no source of income.
She said she had to take her family to the village so they won’t feel and see the pressure and stress she is going through, they were not given their back pay and taxes were small and she cannot cope with this.
Her husband was an added stress and pressure for her because he harassed her at times and physically harmed her.
She left Fiji [in] December 2013 from [an airport]. She left legally, using her passport, visa grant notice, and air ticket.
She arrived in Australia [in] December 2013, holding a visitor visa, which had been issued [in] November 2013, and which expired [in] February 2014.
She is in contact with her family by cell phone.
Her fears upon return
She fears that if she returns, she will be interrogated and she does not know what information the government would have about her because she has been saying things about the government. She fears for her life, there is no freedom to live peacefully and, since she has been [a senior official] of [Organisation 2] and [Organisation 3], she would be pressured with questions and her group would also be in fear. She also fears for her family, especially her children, because the soldiers will be coming to the home every now and then.
She fears she will be harmed by soldiers and the village informer. She fears being restricted because there is no freedom to voice opinions in the village or church gathering. She is democratic. Because she has already been confronted by soldiers, they would always be marking her, noting what she does and where she goes.
She will be harmed mentally and physically and believes that this will kill her. This will occur because the soldiers had already threatened to take her to the prison cell during the women’s meeting in the village and also during her stay here she has been saying things about the government. She believes that there are Fijian CID around in Australia, who pass back information about people to the government in Fiji, so she does not know who to trust.
She does not believe she will obtain state protection because, once you have already been approached by soldiers, they can harass you with unpredictable visits which is degrading for the self-esteem.
She no longer wants to be threatened by the soldiers and the village informers and police. She wants freedom to live her life as a normal person. She has had enough of distress, fear and pressure inflicted by the government’s political and economic crisis; the rich become richer and the poor become poorer.
The applicant’s claims at interview and the delegate’s decision record
Some of the applicant’s evidence at interview, as well as the delegate’s reasons[3], are referred to in the delegate’s decision record provided to the Tribunal by the applicant.
[3] The source of this section is the delegate’s decision record provided to the Tribunal by the applicant.
The delegate noted that the applicant fears the military soldiers and/or the village informer for reasons of her political opinion. At interview, the applicant was asked to describe her involvement with [Organisation 1] and her political activities in Fiji. She said she became [a Organisation 1] member in 1996. She was encouraged to join [Organisation 1] by the [senior employee] of the [workplace] she was [working] at, and she remained a member until 2007. She spoke of two incidences where military soldiers disrupted the meetings and forced them to close. She said she had no leadership role or responsibility in the [Organisation 1], she was just a member. Then she claims that, in 2013, she held workshop with the village women concerning their rights in voting for a democratic government and the need for more women in Parliament. She claimed that her meeting was forced to stop when she was confronted by [a number of] military soldiers dressed in civilian clothes. She said she was threatened to be imprisoned if she did not stop the meeting.
The delegate noted that, while prepared to accept that she holds the political opinion that opposes the government in Fiji, there was no substantive evidence to show that she is of significant interest to the government. The delegate was not satisfied that the applicant is of adverse interest to the government and its military soldiers. The delegate was prepared to accept that, at best, the applicant is a low profile democratic government supporter. The delegate was not satisfied that there was more than a remote chance that she would be seriously harmed in relation to her political opinion.
She told the delegate at interview that the last time she was fearful of her husband she reported it to the police and her husband was issued with a restraining order (which the delegate noted indicated that the Fijian Police were not unable or unwilling to protect the applicant; the state in Fiji did not withhold state protection for a Convention reason). After the interview, the applicant provided two statements from her children, confirming the abuse the applicant endured at the hands of their father (as set out in the delegate’s decision record)[4]. The delegate was prepared to accept that the applicant has experienced domestic violence at the hands of her husband. The delegate accepted that women in Fiji are a particular social group. The delegate referred to country information relating to state protection in Fiji in relation to domestic violence. It was noted that women in Fiji can make applications for restraining orders at a registry without legal representation, or NGOs can help them in making such applications. The delegate considered that the authorities in Fiji are able and willing to provide effective protection to individuals such as the applicant who are victims of domestic violence. The delegate was not satisfied that the Fijian police would be unable or unwilling to protect the applicant in the future and the delegate found that the state was able to provide adequate protection, and thus her fear of persecution is not objectively well-founded. Concerning significant harm, the delegate considered that she could obtain protection from an authority in Fiji such that there would not be a real risk that she will suffer significant harm.
[4] These were not located in the delegate’s file but had been provided to the Tribunal.
The Tribunal
The applicant provided a copy of the delegate’s decision record with her application for review.
Statement of applicant signed [in] August 2016
The applicant also provided a statement signed [in] August 2016 where she discussed the situation with her husband. Her claims can be summarised as follows:
·    She married her husband in 1979 and they have [a number of] children from the marriage. They are from [Island 1]. As they are both [Occupation 1], they moved around Fiji on a number of occasions. She was [age] years old when they married and her husband started hitting her. He is [a number of] years older than her and is a very strong man. At the time they were living in [Town 1], where they remained for about three years until the end of 1980. She did not go to the police at the time as she thought it was a matter between her and him and related to family and private issues. She was unaware of any legal remedy that would have helped her at that time. Her family was also aware.
·    They then moved from [Town 1] when her husband was transferred to [Workplace 1] in [location].
·    He often lives alone, and drinks with his friends and comes back home and hits her. Her [children] have witnessed these continuous beatings.
· In [2012], he hit her, and she had finally had enough so she ran away. This was the last year of her career as [Occupation 1]. A [colleague] had reported her husband to the police. The police came and questioned both her and her husband. She told them everything he had been doing and she was very fearful. She then told him that she could not stay with him any longer. The police informed him that he was restrained from seeing her, and they told him to leave the house. He was restrained from seeing her for 12 months until [2013]. During the next 12 months, he lived with their daughter [Ms E] “on a different island ([Island 1])” and she looked after him. When the 12 months elapsed, at the end of [2013], the applicant relented and “took him back”. She was willing to forgive him because she thought that he had reformed. So he came back, however he started physically abusing her about one month later.
·    Between May and September 2013, they slept in the same house but in separate bedrooms. He tried all the time to stir her up and he demanded sex and this was one of the reasons for the quarrels and the fights. In September 2013 he started hitting her again. She has a [visible injury] and she recalls that once he [details of assault]. She treated her injuries at home.
·    He attempted to hit her when they were out with the grandchildren. She went to her [brother’s] place in the same village. Her brother agreed that she had to leave the district, as well as Fiji, to start a new life. She was living a life of fear and had to get away from him. She went to the mainland and tried to get a visa to be away from him. She stayed with her daughter [Ms F] in [City 1].
·    She made enquiries about coming to Australia; she raised funds; however, her first application failed. She then asked her [relative] who lives in Australia to sponsor her; that application was successful, and the applicant travelled to Australia [in] December 2013. When she left Fiji she asked her brother to tell her husband that she had escaped his clutches and that she would never return to Fiji.
Further submissions pre and post hearings
Also provided by the agent in the letter dated [in] August 2016 was the following:
·    A letter signed by [a number of] her children and her [relative] referring to the violent behaviour of the applicant’s husband against her. It stated that she had suffered insults and humiliation and then violence at the hands of her husband. When there was serious [injury] she went to the police who talked with both of them and the husband left the home. She accepted him back however after one month.
·    A letter signed by her daughter [Ms A] dated [in] June 2015 (she was also a signatory to the above letter) stating that her father beat the applicant in 2012 and was told to leave the [workplace] and not come close to the applicant again. Further, in 2013 she was supposed to give a democratic speech at a village where [Ms A] is a [worker], but she was stopped by police and army personnel.
·    A letter signed by a [member] of police dated [in] September 2015 stating that the applicant made an official report to police [in] 2012 that her husband had been physically abusing her and the matter was investigated and a permanent non-molestation domestic violence restraining order was taken out against him.
·    A statement made by a [work colleague] dated [in] August 2015 stating that she worked with the applicant, who was abused by her husband, and one day the [colleague] reported this to the police. Her husband was told to leave the [workplace].
·    A statement by [name], [religious official] of village, dated [in] August 2015, stating that her husband was violent to the applicant while she was [Occupation 1]. He was happy she had gone to Australia.

Further, the agent provided submissions dated [in] September 2016, in which he referred to the applicant’s statement and country information:
·    In the context of the applicant’s claim of domestic violence, the agent referred to country information (from about 2008/2010) and suggested that patriarchal attitudes, stereotypes and stigma prevail in Fiji which has led to ingrained violence and dominance of men and culture adverse to protecting women, which means that the applicant cannot obtain protection and will be subjected to further abuse from her husband, and a negative stigma from the authorities should she try to report the incidents to the authorities in Fiji.
·    Generally it was claimed that the general public’s attitude and culture in Fiji is not conducive to the safety of women and their freedom from abuse, sexual violence and rape. It was also alleged that the government did not provide any services or facilities for victims of rape or sexual violence.
·    Reference was made to corruption and the rule of law deteriorating in Fiji and that citizens are slow to seek protection from the authorities especially women (a minority group and subject to discrimination). The applicant is a member of a particular social group of Fijian women; she will be forced to return to her husband because of the Fijian way of life, no matter which part of Fiji she relocates to.
Prior to the second hearing, further correspondence from the children was provided, namely [Ms B], [Ms A], [Mr C], stating that the applicant endured domestic violence from their father and that she should remain in Australia as she will not be protected in Fiji. Also provided was a reference letter from a [religious official] in [Australia] stating that the author has known the applicant for 18 months, they meet at church and worship weekly, they are friends, the applicant sings and assists at church and she recommends her highly. Further country information was provided in July 2017 about domestic violence, showing that significant numbers of women have experienced violence from their partners in Fiji.
Evidence at the hearings[5]
[5] The video hearing was first scheduled for 13 September 2016 at 11 am. On the morning of the hearing the agent telephoned to seek an adjournment on the grounds that he had forgotten to specify a female interpreter (despite being requested to indicate such preferences in the Hearing Invitation). A male interpreter had been booked. As the Tribunal could not source a female interpreter at short notice, the Tribunal agreed to the request to postpone the hearing. The email from the agent received at 10.41 am acknowledged his late request.
The first hearing[6] (3 hours, 51 minutes) predominantly involved the applicant’s evidence, discussed when relevant below. There was a significant amount of history, background and claims to be discussed (as well as evidence and information from pre hearing submissions and witness statements) and the applicant gave changing and inconsistent evidence about numerous claims throughout the process, and she contradicted written evidence provided in support. Towards the end of the first hearing the Tribunal said to the applicant that it had not made up its mind, and it was still going to listen to the evidence from the witnesses, but it did have some credibility concerns in relation to the evidence she had given and the contents of her protection visa application form, compared to the contents of her visitor visa application. The Tribunal noted it would be sending her a letter in this regard. The Tribunal then put its concerns to the applicant about inconsistencies, and she gave responses (discussed further below). The agent sought an adjournment of the hearing, which the Tribunal agreed to.
[6] The agent suggested in a later letter that the hearing was scheduled to start at 10.30am but it did not start until 11.30am. In fact, according to the hearing invitation, it was schedule to start at 11am; as noted within the first few minutes of the hearing recording, it started at 11.26 am because the staff at the video location could not find the applicant.
Some of the evidence from the hearings is set out below (other relevant evidence is provided later). The applicant told the Tribunal that the last time she saw her husband was September 2013. Since then he called her once in February 2014 when she was in Australia. He asked her when she was coming back and she said she was not coming back and he did not say anything. There has been no other contact with him since then, other than the children passing on his kind regards since 2014.
The Tribunal asked whether there was any contact between the applicant and her husband between July and September 2013 (when she said she was living with her brother in village), and between September 2013 and December 2013 (when she said she was living with her son [Mr G] and daughter [Ms F] in [City 1]), and she said no. The Tribunal put to her that it did not seem like he was interested in causing her any harm from when she had moved out in July 2013 until when she left for Australia in December 2013. She said while she was living with her brother, her husband never thought of doing that because her brother would have told him off or confronted him. The Tribunal put to her that he could have followed her to [City 1] if he was the controlling type; she claimed he did not have the money to come to [City 1]. The Tribunal noted it was her evidence that family members have supported him financially; the Tribunal put to her that he could have got money from his family members to follow her to [City 1]. The Tribunal also noted her evidence that the children sent on his best regards since she has been in Australia; this does not sound like he is interested in hurting her. She responded that he likes to pretend nothing is going on but it will be different when she gets home.
The applicant said that she fears/ worries about, if she returns to Fiji:
·    Her husband expected her to have sexual intercourse with him but when she is tired he gets angry with her. The Tribunal noted that according to her evidence, they had been living separately, and he has allowed her to live separately from her. The Tribunal said that it was not sure why, if the marriage was over, she considered this would happen again in the future. In response she said even when the children are older he has no respect for anyone and he would hit her. The Tribunal put to the applicant that it was her evidence that her husband had not previously harmed her for the duration of the restraining order and the police letter indicted that she had a permanent order; even if the order did not still exist she could apply for another order. She claimed that it was difficult to get in touch with the police officers because after a few days they would come and investigate what would happen and there was also discrimination with the way they handled matters. The Tribunal put to the applicant that it was her evidence that she had approached the police on one occasion, and that when she did so, she had successfully obtained an order restraining him. She agreed but she said there were times when they made a phone call but it was hard to get hold of the police. The Tribunal put to her that, if she has a permanent order, she should be able to call the police. In response she said her husband does not respect anyone no matter what the consequences.
·    A lack of income; as soon as they reach their retirement age, they have no other work to do.
·    Her political opinion and activities in both Australia and Fiji.
The applicant said that she attended two [Organisation 1] meetings in about 2001. The Tribunal asked her whether anything had happened to her because of her attendance at those meetings and she said that there is a feeling of discouragement and downcast spirit as the military are the same.
At the second hearing[7] the Tribunal asked the applicant whether there were any updates and she claimed:
· At the first hearing her evidence was affected by her loss of memory which was caused by her husband hitting her. The Tribunal asked whether there was anything she said or didn’t say during the first hearing which was incorrect. She just repeated that she had forgotten to say that she had memory loss. The Tribunal asked whether she had gone to the doctor about this and she said no.
· She had since received a letter from her daughter stating that her husband will report the applicant to the police so that the applicant would be forced to be sent back to Fiji and she will face harm upon return. The Tribunal asked why he would report her to the police and she said that he is a dependent person who needs things done for him. The Tribunal noted that he has family members including the son he lives with. She said the son is married and he relies on them. The applicant said that he is a controlling man who does not want her to live her own life; she is not allowed to go anywhere. [The daughter [Ms A] also gave evidence that her father said the applicant will be deported back to Fiji and he will harm her].
[7] The agent made an assertion in a letter that at the second hearing the applicant was questioned for a further two hours before taking evidence from the witnesses. According to the tape, the Tribunal started taking evidence from the witnesses after 50 minutes. During the first 50 minutes there were discussions, and the applicant had provided updates, as well as inconsistent evidence which the Tribunal explored with her.
As noted above, the applicant and five witnesses gave evidence over two hearings. The Tribunal offered the applicant and the agent the opportunity to ask the Tribunal to take further evidence from each witness at the completion of each witness’s evidence, and discussed concerns with the witnesses’ evidence with her. The applicant and agent informed the Tribunal at the beginning of the second hearing that although the applicant’s brother had been proposed to give evidence, he was no longer going to do so, and instead, his wife [Ms D] would give evidence; and the Tribunal took evidence from [Ms D]. Although the agent later suggested that the brother could give evidence, this was not pressed, and the Tribunal noted that he had already provided a statement which it had considered, and that the applicant had told the Tribunal that her brother was not going to give evidence. The Tribunal notes that the applicant was given further time after the hearing, and there was nothing further provided from the brother (or from the applicant relating to the brother). In all the circumstances the Tribunal did not consider it necessary to call the brother.
At the conclusion of the second hearing, the Tribunal put to the applicant that it had concerns with the significant inconsistencies between her documents in the visitor visa proceedings, her written and oral evidence, and the evidence of her witnesses, in relation to a number of issues, including for example details about when she and her husband lived together, contact with the police and the consequences of this. The Tribunal indicated that, although it had not made up its mind, it had concerns about whether or not the domestic violence had occurred. The Tribunal also said that, even if it had occurred, on the evidence of one of her witnesses she had managed to live away from her husband in safety in [City 1] for two years, which would suggest that he did not take the opportunity to harm her between 2011 and 2013, and that it would be unlikely that he would then seek to harm her in 2017. In response she said that he mistreated her. The Tribunal noted that it had referred to its concerns throughout the two hearings, and that it would send a letter pursuant to s.424A of the Act after the second hearing also in this regard. The applicant said that she was aware of the inconsistencies and that she doesn’t know what is wrong with her children and their evidence. The Tribunal also put to the applicant its concerns about her political and employment claims.
After the second hearing, a letter pursuant to s.424A of the Act was sent to the applicant, containing 11 pages of inconsistencies undermining the applicant’s claims. The agent objected to the length of the letter and sought transcripts of the hearings[8]; he was provided with tapes of the hearing recordings. He also sought an extension of time to respond to the s.424A letter which the Tribunal agreed to and he was granted an extension of time. Thereafter, the Tribunal received a letter from the agent dated 24 August 2017 stating that the applicant did not wish to make any comment/ provide any response to the s.424A letter.
[8] The Tribunal did not have a transcript of the hearings.
The first hearing was conducted with the assistance of an interpreter in the Fijian and English languages. During the first hearing an issue was raised that something had not been correctly interpreted. At that stage, the applicant said that her English language ability was average. The Tribunal gave the applicant an opportunity to say what had not been interpreted, noting that she had been asked to tell the Tribunal immediately if there were any problems. When given an opportunity to say what she thought had not been interpreted, she was unable to do so. It was alleged after the first hearing by the agent that the interpreter at the first hearing was “unsatisfactory”. Neither the agent nor the applicant however has subsequently specified (after the hearing tapes had been forwarded to them) what if anything was incorrectly interpreted.
For the second hearing a Fijian female interpreter was requested by the applicant (and the Tribunal) however unfortunately a mistake was made and a Fijian Hindi interpreter attended. The Tribunal was informed that the applicant wished to proceed in English (instead of postponing to another day). The Tribunal was informed that her English is [good], and the only reason an interpreter was requested was because there may be some words she may not understand. The witnesses’ also do not require an interpreter, as their English is even better. The Tribunal said the most important thing is that the applicant is able to understand and to present her case, and if there is something she didn't understand, she should let the Tribunal know. She agreed. The Tribunal is satisfied that the applicant was able to give evidence and present arguments at both hearings (as were the witnesses).
FINDINGS AND REASONS
Country of reference
According to the application form, the applicant is a citizen of Fiji. She provided a passport issued by the Fijian authorities to the Department, and a copy of her birth certificate. The Tribunal finds that the applicant is a national of Fiji. The Tribunal finds that the appropriate country of reference for the determination of the applicant’s refugee claims, and the receiving country for the determination of her complementary protection claims, is Fiji.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
Having considered the relevant evidence, the Tribunal has serious concerns about the applicant’s credibility and the veracity of her claims. The Tribunal considers that the applicant’s evidence was inconsistent, changing and not credible about many aspects central, and relevant to, her claims. Much of the applicant’s claims were based upon her relationship with an abusive husband, and significantly inconsistent evidence was provided from numerous sources. The cumulative concerns in this regard, and in other aspects, are set out below.
Evidence in offshore file indicating that the applicant was residing with her husband in the village and that they were not separated
Firstly, the Tribunal was concerned that the applicant gave inconsistent evidence concerning her circumstances back in Fiji, including her living arrangements with her husband. Numerous documents, including her visitor visa application form signed [in] November 2013, indicated that she was living with her husband in [Village 1] and they were still in a marital relationship, prior to her coming to Australia. The documents include the following:
·     In her visitor visa application form lodged [in] November 2013, and signed on the same day, she claimed that she was living in [Village 1]. She said that her family who are not travelling with her to Australia include her husband, who was also living in [Village 1].
·     She also produced photos of her and her husband (undated except one picture of her husband and child dated [in] January 2012) which indicate and support that there was an ongoing relationship and family situation in the village.
·     She produced a letter (undated) in support of her visitor visa application of [November] 2013, stating that she is a retired [Occupation 1] who sees it fitting to take a vacation in Australia after a working service of 18 years; she will spend less than three months in Australia as she has assets in her country such as two [houses], one in her village and one in [City 1]. She also has [a number of] children attending [school]. Further, “my husband and son are running a [business]” (emphasis added)
·     She produced a letter from her husband (undated) stating that he fully supports “my wife” in taking leave in Australia after her long working service in [Employer 1] in Fiji. (emphasis added)
·     She produced a letter signed by the village headman [in] September 2013 saying she is a permanent resident of [Village 1].
The above however was inconsistent with evidence she has provided in her protection visa proceedings:
· In her protection visa application form, she claimed that she resided in [City 1] from January to December 2013.
· In her evidence to the Tribunal she said that she was living with her husband from January to June 2013, but, because of her husband’s violence, she stopped living with him from July 2013 (when she moved in with her brother, in the village), and then in September 2013 she went to live in [City 1] with her adult child and she considered herself separated from her husband.
The evidence from the visitor visa application undermined her claims to have left her husband because of his violence and that she suffered harm in Fiji which required her to come to Australia to escape him (and that she would face harm from him again in the future). That evidence indicates that she was living with her husband in a marital relationship up until the time she came to Australia in December 2013, and that untruthful evidence has been provided in her protection claims about where she was living and who she was living with, and that she had given inconsistent evidence concerning her circumstances back in Fiji.

Further, the Tribunal also considered that, in making a visitor visa application and signing a letter indicating she only intended a visit and to return to Fiji, she was prepared to make false declarations in order to obtain a visa outcome.
At hearing the applicant did not offer persuasive explanations for the inconsistencies between her evidence and supporting evidence in her visitor visa application, her application form and her evidence in the protection visa proceedings. She did not explain why she had written in her application form that she lived in [City 1] from January-December 2013; she just said she apologised for that. When it was noted that she had represented in this application that she had been residing with her husband in the village, she did not explain why other than to deny that she had been living with him. The applicant was also provided an opportunity to respond to these concerns put in a s.424A letter after the second hearing; however; she offered no comment or response to the information. The Tribunal considers that the above undermines her claims of past suffering or future feared suffering and her credibility; further, it indicates that she is prepared to provide false assertions in order to obtain a visa outcome.
The Tribunal has taken into account the applicant’s further changing evidence at hearing as to where she lived; she also said she lived in [City 1] for two months from January–February 2013 while her daughter was at school there; she said she forgot to mention this earlier in her evidence. The Tribunal is not satisfied that this can assist in explaining the difficulties with her evidence about where she lived.
The applicant’s relationship and living arrangements with her husband
Secondly, the Tribunal was concerned that, in her protection visa application form, the applicant described, on two separate occasions, that her relationship status was “married”, despite being given the other options of “engaged”, “de facto”, “separated”, “divorced”, “widowed”, “ never married or been in a de facto relationship”. This however was in contrast with her evidence to the Tribunal that she considered herself to be separated from her husband in September 2013, prior to coming to Australia. The Tribunal asked the applicant why she did not say that she was separated from her husband in her protection visa application forms, and she responded that she just wrote him as a husband in the forms, even though she knew that the time they were separated. The Tribunal noted that she was given the opportunity to state that they were separated in the forms, but she did not do so (anywhere in the forms). She responded that she just filled in her protection visa application form, she did not realise how important it was to fill out the box stating that she was separated.
The Tribunal put to the applicant that in addition to that concern, a consideration of her protection visa application form shows that when asked why she came to Australia, and for her fears upon return to Fiji, she did not state that she left the country because of her husband, nor that she had a fear of her husband if she returned. Instead she said she had left the country because of the political crisis. She agreed, and said that while she was filling in her application form, there was a political crisis also occurring in Fiji, so she decided to put that in as well in her application form. The Tribunal does not find this to be a persuasive explanation as to why, in her application form setting out her claims of past harm and future fears, she only devoted one sentence to her husband and called him an “added stress and pressure”. In response to the question of who may harm or mistreat her if she goes back, she referred to soldiers; not her husband. Further, in response to the question of what she feared may happen to her if she returns, there was only mention of political persecution, and no reference to any harm from her husband. In response to the question of whether the authorities would protect her if she returned, she again made no mention of any fear of her husband and whether or not the authorities would protect her. The Tribunal considers that, if the applicant had suffered a life of abuse at the hands of her husband, if she had escaped from him and considered herself separated from him since September 2013, and if she feared he would continue to harm her upon return, she would have mentioned this in her protection visa application form submitted in March 2014. The Tribunal considers that her protection visa application form undermines the claims about her husband and their relationship, and her credibility. It has considered her assertion (later, at the second hearing) that she received advice that she should concentrate on politics; however, having regard to the claimed circumstances, the Tribunal is not prepared to accept this as a reason as to why the applicant decided to omit any fear of her husband, or to say that he was a source of future harm, or that she would not get protection from his harm.
Inconsistent and changing evidence about her husband’s knowledge of her travel to Australia
Thirdly, the Tribunal was concerned that the applicant provided inconsistent and changing evidence about her husband’s knowledge of her travel to Australia, in light of her claims that he was a violent, possessive, controlling man.
In this regard, there was a letter on the offshore visitor visa file from her husband supporting her visitor visa application to travel to Australia. It was undated but its location on that file suggested that it was provided to the Department in support of her visa application, and before her visa to come to Australia was granted. The existence of this letter undermined her claim to have had a violent husband from whom she was escaping, and it indicated that he was aware of and supported her plans to travel to Australia, because he was not the violent, controlling and possessive type of husband she had claimed him to be, but that they were in a marital relationship, and the applicant’s travel to Australia was part of their joint plans. It was put to the applicant that her evidence as to her husband’s knowledge of her travel to Australia in her protection visa proceedings was different to this letter, and it was itself inconsistent:
·     Her initial evidence to the Tribunal was that the first time her husband knew about her plan to go to Australia was when her brother told him, after she was already (safely away from him and his violence) in Australia. The Tribunal sought confirmation of this and she agreed.
·     However, when the Tribunal then put to the applicant that there was a letter from her husband on her visitor visa application file supporting her application to come to Australia (made while she was still in Fiji), she changed her evidence to say that her husband had only signed the letter after she had received the visa to come to Australia (but was still in Fiji). This however, as put to the applicant, was inconsistent with the presence of that letter on her offshore visitor visa file created when she was applying for her visa in Fiji.
·     The Tribunal put to her its concern and she then changed her evidence to the Tribunal to say that her husband had signed the letter before she had received the visa (and while she was still in Fiji) but that he did not know the reason why he was signing the letter. However, the contents of the letter indicated that he did know the reason why he was signing the letter (namely to support her travel to Australia).
When the Tribunal put to the applicant at hearing its concerns that the letter from her husband on the offshore visitor visa file undermined her evidence, she said that her brother asked her husband for the letter. Later she said she had somebody write the letter for her husband; when the Tribunal asked her whether she was saying that this was not a letter from her husband but from someone else, she said he did sign the letter. When the information was put to her in the s.424A letter, she offered no comment or response. The Tribunal does not find her evidence to be persuasive. The Tribunal considers that her changing evidence indicates that she is not a witness of truth and that she is prepared to change her evidence to respond to the Tribunal’s concerns. The Tribunal also considers that the letter from her husband undermines her claims and credibility.
Fourthly, the Tribunal had further concerns in relation to the letter, and the evidence of the applicant’s [relative] [Ms D] (the wife of her brother). [Ms D] told the Tribunal that the applicant’s husband was aware that the applicant intended to travel to Australia; that the applicant and her brother had together approached her husband in person and asked him to sign a letter confirming his agreement with the applicant’s travel. This however was inconsistent with the applicant’s initial evidence that it was only after she was safely away in Australia that her husband was told (by her brother) that she had gone to Australia; her husband did not know she was leaving until after she had gone. [Ms D]’s evidence undermines the applicant’s claim that she was fearful of telling her husband of her intentions to travel to Australia; and it indicates that her husband was aware she would travel and he did not try to stop her, but instead agreed with and supported her travelling to Australia to visit.
The applicant did not say anything at hearing after [Ms D] gave this evidence. The applicant declined to comment on or respond to this information when it was put to her pursuant to s.424A of the Act. The Tribunal was concerned with the inconsistent evidence about whether or not the applicant approached her husband and obtained the letter supporting her to travel to Australia. The Tribunal considers that this undermines the applicant’s credibility and her claim of a violent husband, and that she suffered harm or faced harm in Fiji which required her to come to Australia.
Fifthly, the Tribunal had further concerns with inconsistent evidence about the reason why the applicant’s husband agreed with the applicant travelling to Australia. [Ms D] told the Tribunal that he agreed because [Ms D] also intended to travel. She specifically stated that the applicant’s husband believed that the applicant was coming to Australia for a vacation, he did not believe that she was coming here to work. However, when the Tribunal put to the applicant that it was unlikely that her husband, a controlling, possessive, violent man who would not leave her alone, would allow her to travel to Australia, the applicant then said that her brother had persuaded her husband, who had agreed because he believed that she was going to go to Australia to work and earn money to support the family.
The applicant did not say anything at hearing after [Ms D] gave this evidence. The applicant declined to comment on or respond to this information when it was put to her pursuant to s.424A of the Act. The Tribunal was concerned with the applicant’s continually changing evidence about whether and what her husband knew about her coming to Australia; and that both she and [Ms D] gave inconsistent evidence about what the applicant’s husband believed as to why the applicant was coming to Australia. The Tribunal considers that this undermines the applicant’s credibility and her claim of a violent husband, and that she suffered harm or faced harm in Fiji which required her to come to Australia.
Evidence undermining the violent relationship with the applicant’s husband and consequential restraining order
Sixthly, the Tribunal was concerned that the applicant gave inconsistent evidence, and also with the documentary evidence produced, which undermined her claim about the existence of a restraining order. In this regard, the Tribunal noted that, accompanying her visitor visa application signed [in] November 2013, was a document showing that [in] August 2012, she and her husband were both living together at [location] (her husband was retired and she was still working) and that together, they jointly purchased land for $[amount].
However, this purchase of land, at that time, was inconsistent with evidence relied upon by the applicant in her protection visa proceedings including:
· The letter from a police officer stating that she had been granted a permanent restraining order in [2012], when considering that she told the Tribunal that she did not see her husband for [one year after that order was granted] and the only contact between the applicant and her husband during that period was through her daughter and it was only about whether or not they could reconcile. The document in the visitor visa file however indicates that she and her husband were still living together, in a marital relationship, and were buying land together, which undermines the claims of the separation and the restraining order and the supporting correspondence.
· The letter from [a colleague] at the [workplace] where she and her husband had been living stated that her husband had been forced to move out of the [workplace] after the violent incident (which she claimed was the incident which led to the restraining order which occurred in [2012]). The purchase of land document however indicates that she and her husband were still living together at the [workplace] in August 2012, and that they were in a relationship at that time and buying land together, which undermines the claims of the separation and the restraining order and the supporting correspondence.
The Tribunal discussed the document with the applicant at hearing and she said that the discussion about the land had already been done and the land owner came to approach her and she bought the land with her husband. When the information was put to her in the s.424A letter she offered no comment or response. The Tribunal does not find her evidence to be persuasive. The Tribunal considers that the evidence indicates that she and her husband were living together, and purchased land together, during the period of the claimed restraining order. The Tribunal considers that this undermines her credibility and her claims, as well as her supporting evidence.
The number of occasions there was contact with the police in relation to the husband’s violence towards the applicant, and the results of that contact
Seventhly, not only was the Tribunal concerned with the above evidence in relation to the restraining order, there was further evidence which seemed to undermine the applicant’s claims in this regard, namely varying/ inconsistent and/or changing evidence about contact with the police in relation to the husband’s violence towards the applicant, and the results of that contact:
·    Her son, [Mr C], told the Tribunal that the police had never assisted her.
· The letter from the police officer stated that there had been a permanent (not one-year) restraining order issued in [2012].
·    The applicant told the Tribunal that there was only one restraining order, for one-year which was issued in 2012; she said that had not been a permanent restraining order.
· Her daughter [Ms A] told the Tribunal that the applicant never contacted the police but that on one occasion, someone contacted the police for her in 2011 which led to a restraining order for one year issued by [Police Station 1]. When the agent asked the Tribunal to seek clarification, having regard to the inconsistent police letter, the Tribunal put to [Ms A] that the police letter was from [Police Station 2], for a permanent order, in [2012]. [Ms A] then said that she made a mistake with the year; she thinks that the first order occurred for one year at [Police Station 1] and then the applicant went to [Police Station 3] and obtained a permanent restraining order against her husband (thus there were two restraining orders). When the Tribunal put to [Ms A] that her evidence had changed, she then said that she just knows about the one year restraining order. The Tribunal put to [Ms A] that if the applicant was in fear of her husband, it would think [Ms A] would know whether or not the applicant had a permanent restraining order against him, noting that [Ms A] has been in contact with the applicant and has written letters in support. [Ms A] was not able to explain this.
·    After [Ms A] gave her evidence, the applicant said that there was only a one year restraining order, given at [Police Station 1]. The officer was transferred to [Police Station 2] so she obtained the letter from him there.
·    The applicant’s daughter [Ms B] told the Tribunal that there were two separate contacts with police; firstly in early 2012 when the police came to the village and gave the husband a warning and then the applicant and her husband reconciled. Secondly, in [later in 2012], the applicant was given a one year restraining order.
·    The applicant’s [relative] [Ms D] initially said to the Tribunal that there was only one contact with the police; a one-year restraining order. However, when the Tribunal put to her that the police document indicated that there had been a permanent restraining order, she changed her evidence and said that there had also been a second (permanent) restraining order.
The Tribunal was concerned by the numerous differences and the changing evidence, and that it indicated that the applicant and the witnesses had given varying/ inconsistent and/or changing evidence about contact with the police in relation to the husband’s violence towards the applicant, and the results of that contact; and that the applicant’s own evidence was inconsistent with the actual police letter provided about the length of the restraining order against her husband. In regard to the latter point, the Tribunal asked the applicant questions about the restraining order, she said it only went for one year and it had an expiry date [in] 2013. The Tribunal put to her that it was a restraining order for her protection; it would expect that she would know the details of it, and she said yes. The Tribunal then asked her why she thought the letter from the police officer stated that it was a permanent restraining order against her husband. In response, she said there was a verbal conversation between herself and the police officer and she was told it lasted for one year. The Tribunal does not find this to be persuasive. The Tribunal considers that if the applicant had a restraining order for her benefit against her violent and abusive husband, which was ongoing and permanent, she would be aware of this. The Tribunal considers that the inconsistency between her evidence as to the restraining order, and the letter from the police officer as to the restraining order, undermines her credibility, her claims, and the letter from the police officer.
At hearing, after [Ms A]’s evidence, the applicant said that the police officer told her the restraining order was for one year. The Tribunal asked her how he could confuse this with a permanent order, and she said that the policeman is related to her husband and they drink together. The Tribunal considers that, if this was the case, she could have told the Tribunal this earlier when the Tribunal put to her the inconsistency about the length of the restraining order; the Tribunal is not prepared to accept this assertion. She did not offer an explanation for the other inconsistencies in the evidence.
Further, when the information was put to her in the s.424A letter, she offered no comment or response. The Tribunal considers that the above undermines the applicant’s claims of contact with the police, and the results of that contact, and her claims and credibility, and the reliability of the witnesses.
How long after the restraining order the applicant and her husband were apart, and when they started living together again, and where they were residing prior to her travel to Australia
Eighthly, the Tribunal was concerned with inconsistent evidence provided by the applicant and her children as to the living arrangements at the time of, and after, the restraining order.

The applicant claimed in her evidence that she did not have any contact with her husband for the one year period of the restraining order [2012-2013] other than through her daughter [Ms E], who would pass messages between them. They did not live together; she was living with her daughter [Ms E].
However, in the [multiple]-signature letter signed by the [various relatives], it was stated that, after one month, the applicant accepted her husband back home due to his continuous calling and asking for forgiveness. The Tribunal noted that this was inconsistent with the applicant’s evidence and she said they made a mistake in the letter, she did not go back to him after one month; it was one year. The Tribunal put to her that this appeared to be a significant mistake to make, especially noting that [a number of relatives] have signed the letter, and it appears that no one has picked up on the error. In response, the applicant said that she asked them to write the letter and she never thought to check it. The Tribunal put to her that this did not explain why [all of the signatories] (all over 18 years except for [one of the signatories]) signed a letter which contained a significant inconsistency with her evidence. In response, the applicant said this is just because they are living in separate houses and they just wrote the letter. The Tribunal has considered this response but does not find it persuasive. Even if the Tribunal disregarded that one of the signatures was by a child under the age of 18 years ([name]), this does not explain why [a number of] other people, all of whom claimed that the husband was violent and had abused their mother, all claimed that the applicant had taken back her husband one month after the restraining order was issued, while she claimed that she lived apart from him for one year after the restraining order. The Tribunal considers that this inconsistency between the [letter] and the applicant’s evidence undermines her credibility, the weight to be given to that letter, and her claims.
Although the Tribunal notes that subsequent corrections were made by some of the children to their claim that their parents were apart for one month (changing it to one year), there was no explanation other than it was a mistake. The Tribunal does not find this to be persuasive, and it considers that if their mother had managed to obtain a restraining order and if as claimed the signatories to the letter were aware of the violence against the mother, then they would not have made such a significant mistake as to the time their mother was separated from their father. The Tribunal considers that the inconsistency undermines the claims and credibility.
Further, there were inconsistencies with the applicant’s evidence to the Tribunal that from December 2012 until July 2013, she lived in her home in the village with her husband and then, from June/July 2013 until September 2013, she left for Australia [in] December 2013, she lived with her child in [City 1] and considered herself separated from her husband:
· The daughter [Ms A] told the Tribunal that the applicant’s husband came back one month after the restraining order was issued, in 2011. Then, the applicant and her husband lived together in the village for about one month in 2011, and then the applicant returned to [City 1] to get her visa for Australia. The applicant did not see her husband again between 2011 and 2013; she was safe for two years and living in [City 1].
· The [relative] [Ms D] told the Tribunal that there was a restraining order taken out in 2012 but her husband came back after a “few months”. Then, the applicant and her husband were residing together in the village until November/December 2013, when she came to Australia.
Additionally, the daughter [Ms B] provided changing evidence:
·     In the [multiple]-signature letter (including signed by [Ms B]) submitted to the Department she stated that the applicant took back her husband after one month (thus in about [month] 2012, as [Ms B] said the restraining order was taken out in [month] 2012).
·     [Ms B] provided a subsequent, correcting letter to the Tribunal saying that there was a mistake in the [multiple]-signature letter and she meant to say that the applicant took back her husband after one year (thus in about [month] 2013).
·     [Ms B] however told the Tribunal that the applicant and her husband started living together again in the village in December 2012 (thus about [number] months after the restraining order was taken out).
The applicant declined to comment on or respond to this information when it was put to her pursuant to s.424A of the Act. The Tribunal was concerned with the varying/ inconsistent and/or changing evidence about the applicant’s circumstances with her husband including how long the applicant and her husband were apart after the restraining order was granted, and whether they were living apart for two years (from 2011 to 2013) and did not see each other, or whether some other circumstances were true. The Tribunal considers that this undermines the applicant’s credibility; the reliability of these witnesses, and the applicant’s claim of a violent husband and a restraining order, and that she suffered harm or faced harm in Fiji which required her to come to Australia.
Whether the applicant was harmed after the restraining order
Ninthly, the Tribunal was concerned with inconsistent evidence provided by the applicant and her children as to whether or not the applicant was harmed after the restraining order.
·    The applicant told the Tribunal that her husband continued to hurt her after they reconciled ([in 2013]).
·    The applicant’s daughter [Ms A] told the Tribunal that the applicant did not see her husband between 2011 and 2013; she was safe for two years and living in [City 1] before she went to Australia.
·    The applicant’s daughter [Ms B] told the Tribunal that the applicant was harmed by her husband between December 2012 and June/July 2013.
·    The applicant’s [relative] [Ms D] told the Tribunal that her husband remained violent, and that she was harmed by him after he returned a few months after the restraining order was taken out in 2012 (thus from [a time in 2012]).
The applicant declined to comment on or respond to this information when it was put to her pursuant to s.424A of the Act. The Tribunal was concerned with the varying/ inconsistent evidence about when the applicant was harmed by her husband after the restraining order and before she came to Australia and considered that this undermined her claims that she suffered harm in Fiji which required her to come to Australia, as well as her credibility and the reliability of these witnesses.
Political involvement and activities
Tenthly, the Tribunal was concerned about the applicant’s evidence in relation to her political involvement and activities.
When the Tribunal asked the applicant her concerns about returning to Fiji, she said there is also another issue relating to the present government in Fiji. She is a member of SODELPA party and she believes in democratic government and at the moment there has been a lot of detaining of people like Mr and Mrs laisina Qarase. The Tribunal asked whether she was a member of a political party back in Fiji and she said no, but she does support them and especially she participated by delivering a speech during the preparation of the general election. The Tribunal asked why she was not a member and she said she took part in the election process by casting her vote. The Tribunal repeated its question as to why she was not a member; she later apologised and said that she was a member of Soqosoqo Ni Lewenivanua (SDL) back in Fiji. The Tribunal asked why she did not say earlier that she was a member of SDL; she responded that she thought she had to be a political member, but she misunderstood. The Tribunal asked whether she was saying she did not know what a member was, and she laughed and said she was kind of doubtful as to whether she was a member or not. She then said that she was a member of SDL ever since it was founded.
The Tribunal then asked when that was, and she said ever since the days of Qarase, as he was the founder of the party. The Tribunal asked what year was this and she said she has forgotten the year. The Tribunal asked for an approximate year, and the agent interrupted and said she is getting tired. The applicant said it was about 1990 or something but she does not recall[9].
[9] The Tribunal offered a break.
The Tribunal considers that, if the applicant had been a member of a political party for over 20 years prior to coming to Australia, she would have told the Tribunal this when asked. The Tribunal does not accept that tiredness, if she was tired, could explain why she could not remember and/or did not know, whether or not she was a member of a political party back in Fiji.
Further, the Tribunal put to the applicant that she did not mention being an SDL member in her application form. She said she was just concentrating on the democracy. The Tribunal has considered this explanation but does not find it persuasive. The Tribunal considers that, if the applicant was a member of a political party for over 20 years, she would have mentioned this in her application form, especially as she claimed membership of other organisations ([Organisation 1], [Organisation 2] and [Organisation 3]). The Tribunal is not satisfied with her explanation for omitting to mention in her protection visa application form that she was a member of a political party for over 20 years. The Tribunal considers that this undermines her credibility and her claims of political activities.
Further, the Tribunal was concerned that the applicant’s evidence was vague about her political activities. The Tribunal asked the applicant what she did as a member of SDL in Fiji, she said that she voted for them. The Tribunal asked if she did anything else, and she said that she also presented a speech (about 45 minute/ 1 hour) to the women to encourage them to participate in the election as there was a need for women to enter politics and parliament. However, when the Tribunal asked what else she said in her speech she said “freedom to elect whatever candidates they want to elect”. The Tribunal asked what else was in the speech and she said that’s all. The Tribunal put to her that this would not take 45 minutes, and she said she could not complete her speech because she was asked to stop. The Tribunal put to her that she would have prepared her speech before she was asked to stop, and asked what else was in her speech. In response she said that is all, she was asked to stop. The Tribunal considers that if the applicant had been preparing to present a speech for 45 minutes on women and democratic rights, then she would have been able to tell the Tribunal some more details about her proposed speech. The Tribunal considers that this undermines her claim to have prepared/ presented even partially such a speech.
Further, the Tribunal was concerned as the applicant’s daughter’s evidence was inconsistent in a number of respects with the applicant’s claim to have given a democratic speech (which was interrupted), as set out below:
· In support of her mother’s claims, the daughter [Ms A] provided the same letter on two occasions in these proceedings ([In] June 2015 to the Department and provided again to the Tribunal in July 2017) stating: “in 2013, [the applicant] was supposed to give a democratic speech at the village where I was [occupation], but [the applicant] was stopped by some police officers and army personnel”.
· However, at hearing, [Ms A] told the Tribunal that the applicant did not see her husband between 2011 and 2013; the applicant was safe for two years and living in [City 1]. She said that she, [Ms A], was [occupation] in the home village [Village 1]; she was not [occupation] in any other village. She said that the applicant did not come back to the village [Village 1] (the family home village) in 2013 because the family members told her not to do so (because of fear of her husband).
The Tribunal noted that [Ms A]’s evidence: the applicant was not asked to come back to the village and in fact did not come back to the village, meant that she could not have been stopped in giving her speech by police and army personnel; was inconsistent with the applicant’s claim that she had given the democratic speech (which had been interrupted). When this was put to [Ms A], she said she did not want to say anything.
The applicant declined to comment on or respond to this information when it was put to her pursuant to s.424A of the Act. The Tribunal considers that the inconsistencies between the applicant’s evidence and the evidence of her daughter (and the failures to comment) undermines the claim that the applicant came back to the village to give a democratic speech; that she was stopped and targeted by the police/army, that she came to the adverse attention of the police and/or army and/or government in Fiji or that she was threatened or prevented from engaging in political activity in Fiji which required her to come to Australia. It also undermined the reliability of the evidence of [Ms A], and the credibility of the applicant.
Further, the Tribunal was also concerned with the applicant’s claimed political opinion and activities. The Tribunal noted her claim to have done a presentation at a meeting in 2013; the Tribunal asked the applicant who organised the meeting. She said she called the meeting after they came back from the workshop and they had to make a presentation after attending the workshop. The Tribunal then asked who organised the workshop and she said a particular government department that was responsible for the promotion of elections and democracy. The Tribunal asked if she knew what they were called and she said she could not recall. The Tribunal notes that the applicant had produced a letter claiming that, as a representative of [Organisation 2], she had attended a [number] day workshop in June 2013 organised by [a government department]. The Tribunal considers that if, as claimed, the applicant had been involved in a political party for over 20 years before coming to Australia, and if she gave a speech about women, and attended a [number] day workshop and thereafter made a presentation as claimed, she would recall the name of the relevant government ministry. The Tribunal considers this undermines her claims.
Eleventh, the Tribunal asked whether the applicant had undertaken any political activities in Australia. She said that she is a member of a democratic movement in [Town 2]. The Tribunal asked for its full name, and she said [abridged name] and she only knows it by that name. The Tribunal later put to her that it was not aware of this organisation and put to her that it may not be the full name of the organisation. She was silent and said she did not recall the exact name of the organisation she is a member of. The Tribunal put to her that if she is referring to the [name of political group], this is a group that appears not to been operative for some time. She said yes maybe that is the one; however, she does not recall. The Tribunal considers that if the applicant was genuinely involved in a political organisation, and if she had attended meetings for genuine reasons, she would have been able to tell the Tribunal the name of the organisation. The Tribunal considers that this undermines her credibility and her claims.
The Tribunal asked the applicant what she does as a member of this movement, and she said they meet up to be alerted as to what happens in Fiji, she has attended five meetings and they are being made aware of what is happening in Fiji so they can use this information in their protection applications in Australia. The Tribunal asked what she meant and she said they are being informed of the current situation in Fiji so they can declare it on their forms.
The Tribunal put to the applicant that it appeared that she was getting involved in activities in order to assist her protection visa application and she agreed. The Tribunal put to her the provisions of s91R(3) of the Act. The Tribunal asked the applicant whether there is any other reason why she had been attending activities in Australia and she said that she began to follow the movement in 2014; however, she has stopped because she is no longer living in [Town 2].
The Tribunal considers that the applicant’s evidence undermines her claim to have been, and to continue to be, politically interested and active and invested in democracy, and her credibility.
Evidence of a better financial picture than presented in the protection visa proceedings
Finally, the Tribunal was concerned that the applicant’s financial situation in Fiji was better than she claimed in her protection visa proceedings, and that she was untruthful in this regard.
The Tribunal noted that, accompanying her visitor visa application signed [in] November 2013 was a [receipt] from October 2013 showing that she was undertaking casual [work] at [Workplace 1] as a retired [Occupation 1]. She also produced [work plans] which indicated that she was a “[occupation] – (Retired [Occupation 1])” being paid at [details of salary] = $[amount] at [Workplace 1]. This indicates that after her retirement she was continuing to work, and at least until October 2013 (when completing her November 2013 application form).
However, as put to the applicant, this was inconsistent with evidence she provided in her protection visa proceedings:
· In her protection visa application form, she did not declare any work after her retirement as a [Occupation 1], and
· in her evidence to the Tribunal, she claimed that she only did some casual [work] for a few months, in February-April 2013 after she retired, she had been paid within one month and did not do any other work after that.
The Tribunal was concerned that she had not been truthful in the protection visa proceedings about her financial situation and her ability to obtain work. The Tribunal considered that this indicated that she had been paid and working after her retirement on a continuing basis.
When the Tribunal put this to her at hearing, she said that she only worked on the months she said, she had then stopped working. She did not explain why she had produced for her visitor visa application payslips as a [casual worker] showing that she had worked later than what she claimed to the Tribunal. When the information was put to her in the s.424A letter she offered no comment or response. The Tribunal does not find her evidence to be persuasive, and considers that the evidence presented in her visitor visa application undermines her claim that she will not be able to obtain employment or that she will have financial difficulties upon return to Fiji or that she faces a real chance of serious harm or a real risk of significant harm for financial reasons upon return, as well as her credibility.
Further, the Tribunal further noted that in her visitor visa application signed [in] November 2013 she wrote a letter stating that she is a retired [Occupation 1] who sees it fitting to take a vacation in Australia after a working service of 18 years; she will spend less than three months in Australia as she has assets in her country such as two [houses], one in her village and one in [City 1]. Further, she stated that her husband and son are running a [business]. The Tribunal put to the applicant at hearing that she had given different evidence in her protection visa proceedings compared to her visitor visa application; she said that there was [details of business], as soon as the applicant came to Australia, the [business] did not continue. When the information was put to her in the s.424A letter she offered no comment or response. The Tribunal does not find her evidence to be persuasive, and considers that the evidence presented in her visitor visa application undermines her claim that she will have financial difficulties upon return to Fiji or that she faces a real chance of serious harm or a real risk of significant harm for financial reasons upon return, as well as her credibility.

Further, the Tribunal further noted that in her visitor visa application [in] November 2013 and supporting documents, she claimed that, although she retired in 2012, she had kept aside some money to fund her travel and her children will also provide financial assistance. Her son [Mr G] has also sent her some money from [another country] to help fund her travel (her bank statement indicated $[amount]). When the information about her financial resources was put to her in the s.424A letter, she offered no comment or response. The Tribunal considers that her offshore application indicated that she has various sources of financial support; and that this was inconsistent with her claim that she will have difficult financial circumstances upon return.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
Corroborative witness evidence: The Tribunal put to the applicant that people can make claims to support an application because they want to assist; and what they say may not necessarily be true. The Tribunal noted it had to make up its mind as to the credibility of events and the real chance and real risk of future harm. As noted above, it indicated that it had concerns with the witnesses’ evidence.
The Tribunal notes that the applicant’s children and her [relative, Ms D] all claimed in their oral evidence that the applicant had been a victim of domestic violence at the hands of her husband, and that this would happen again if she returned. Her current partner also gave evidence to the Tribunal that she wakes up at night, she has dreams, and when he is loud at home, she feels scared. All of the witnesses want the applicant to remain in Australia. The Tribunal has considered the agent’s submission that all of this indicates that the applicant has been a victim of domestic violence. While the Tribunal accepts that such evidence could support a claim of past and future feared domestic violence, in the particular circumstances of this case, taking into account the Tribunal’s concerns with the witnesses’ evidence and the applicant’s evidence, and the numerous inconsistencies arising from numerous sources, the Tribunal is not prepared to place any weight on the evidence of the witnesses.
In coming to this conclusion, the Tribunal has considered the agent’s submission that, although there is an inconsistency in the evidence about details including the restraining order, the Tribunal should not disregard the letter and it should accept the claim of domestic violence. Further, it was submitted that the witnesses confirmed that they made a mistake in saying that the husband was allowed back in one month instead of saying one year; while the Tribunal notes this acknowledgement, this was not the only changing evidence/ inconsistency in the witnesses’ oral and written evidence.
Memory loss/ tiredness: After the first hearing, when the Tribunal had raised changing and inconsistent evidence, it was alleged at the second hearing that the applicant has memory loss because of the beatings. She told the Tribunal this, and suggested that it affected her evidence at the first hearing. This was also a claim made by the applicant’s daughter [Ms B] in a pre-second hearing statement (who claimed that she had “been informed” that her father’s actions had damaged the applicant’s brain and “she has a bit of memory loss”). The Tribunal is not prepared to place weight on the evidence of that witness. Further, when the Tribunal asked the applicant whether she had seen a doctor about this, she said no. Given that: her evidence that the beatings had occurred for a long time in Fiji; she had gone to a hospital in 2012 after one of the beatings; she had attended upon the police who believed that she was in need of a restraining order; she is represented by an agent; that she has been in Australia since December 2013 and has had plenty of time to obtain medical evidence after the first hearing, even after the second hearing when the Tribunal again raised concerns with her claims and credibility, yet she still did not provide any medical evidence to support her assertions of memory loss, the Tribunal is not prepared to place any weight on these allegations about her memory loss.
Further, the Tribunal notes that when the applicant was providing vague evidence about her political involvement, the agent suggested that she was getting tired. The Tribunal then offered a break; the Tribunal has considered, but does not accept that the applicant was tired in the two hearings such that this can explain the difficulties with the evidence.
Corroborative documents: The applicant provided documents including:
·    A letter from [Employer 1] dated [in] October 2013, to confirm that her retirement is effective from [year], as a result of a decree in 2009 stating that the retirement age for public service shall be 55 years. The Tribunal is prepared to accept this letter as evidence that the applicant was required to retire from her full–time permanent position as a [Occupation 1] with the public service at the age of [number years] as a result of the decree (which applies to everyone).
·    Marriage certificate for the applicant and her husband ([1979]). The Tribunal is prepared to accept that the applicant and her husband were married in 1979 and had [number] children together, that the majority of the children are over [18 years].
·    Visa grant notice showing that she applied for her visitor visa [in] November 2013, and it was granted [in] November 2013 and the receipt showing she bought her airline ticket [in] November 2013. The Tribunal accepts these documents as evidence of their contents.
·    The applicant provided a Certificate of Participation from [an organisation] for attending a [workshop] organised by the [organisation], from [in June] 2013.
·    The Tribunal considered the letter signed by [multiple signatories] confirming that their mother had been assaulted by their father. As put to the applicant at hearing, the Tribunal was concerned that the letter had been signed by [a number of] different people, and then the applicant claimed that it was wrong, in what the Tribunal considered to be a significant error. Further, as put to the applicant, the Tribunal also noted that the letter claimed that it was the doctor who had referred her to the police station where a complaint was lodged against her husband, whereas the applicant had told the Tribunal that it was [a colleague] who had telephoned the police to inform the police of what had happened to the applicant. In response the applicant said that the doctor told her to go to the police station; the Tribunal does not find this persuasive, given the applicant had earlier told the Tribunal that when the [colleague] called the police, the police come to the [workplace] to interview the applicant a few days later (whereas the letter says she went the next day to the police station to make a complaint). The Tribunal considers that this, the credibility issues, and the one month/ one year difference in evidence, indicates that little weight should be placed on this letter or any subsequent letters from the children.
Other documents referred to above have also been considered. As put to the applicant at hearing, false documents can be obtained from Fiji[10], and people may write letters to assist an applicant, even though the contents are not true. The Tribunal is not prepared to place weight on the letter from the [colleague], [religious official], policeman, Certificate of Participation, or children or others suggesting that the applicant has been subjected to abuse by her husband.
[10] DFAT Report: “Document Fraud:
5.56 Counterfeit documents or fraudulently obtained documents are commonly and cheaply available.
As noted at hearing, the applicant had provided in her offshore visitor visa application form a letter from [a church] dated [in] October 2013 stating that she “resides with her family in [location]”. She told the Tribunal that the church letter is from [City 1], where she was living. The letter does not suggest she is separated from her husband, it does not suggest that she is living away from her family and village nor does it suggest that she is just living with her child; having regard to the inconsistent and changing evidence about where the applicant actually lived in Fiji, the Tribunal is not prepared to place any weight on this letter.
While the Tribunal accepts that a person can be nervous, and recounting past harm and trauma can lead to distress and possible memory problems, on the evidence before it, the Tribunal is not prepared to accept memory problems or English language (when used) as an explanation for the significant difficulties with her claims and evidence. Nor is it prepared to accept that she was a victim of harm or domestic violence in Fiji, such that this could affect her ability to give evidence in Australia.
The Tribunal is not satisfied that any of the matters claimed can overcome the Tribunal’s concerns with the difficulties in her evidence set out above.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has exaggerated and fabricated accounts of background, events, as well as claimed fears, upon which she has based her protection claims.
Findings on claims of past harm and future fears
The Tribunal accepts that the applicant is a [age]-year-old woman who has been educated in both Fiji and in Australia, and has work experience in both Fiji and in Australia. It accepts that she has [number] children in Fiji (most of whom are over 18 years and are self-sufficient), and other relatives.
Her husband
On the basis of the adverse credibility finding, it does not accept that she was in an abusive relationship with her husband in Fiji. It does not accept that she suffered [injuries] or traumas or distress or domestic violence in any form or that she was of the view or experienced that she had to be submissive. It does not accept that she had any difficulties in accessing state protection. The Tribunal does not accept that the applicant faced any harm or feared harm prior to coming to Australia nor that she considered that she was required to come to Australia to be safe. The Tribunal does not accept any of the claims that flow from these claims, including that her family witnessed or were aware of any abuse or would not protect her because of the societal norms or that he reported her to the police or wanted her to be deported back to Fiji. The Tribunal does not accept that she had a violent husband who would have an interest in pursuing or harming her or that there is a real chance or real risk that he seeks (or sought) to cause her harm. Further, the Tribunal has just been informed by the applicant that her husband in Fiji has died[11].
Political opinion/ activities/ expression of political views
[11] Letter from agent dated 7 September 2017 stating he had died [in 2017].
The Tribunal had raised its concerns about the applicant’s claimed political involvement in Fiji. The applicant responded by saying at the end of the second hearing that she really was involved in a democratic movement in Fiji, in making them [undertake political activities] and there was a workshop before she went to preach in the village. As noted above, however, the Tribunal was concerned that she did not give the speech in the village, noting this was inconsistent with her daughter [Ms A]’s evidence that she did not come back to the village at all between 2011 and 2013, and in particular that the applicant did not do this speech (and the applicant did not offer a comment or response to this when provided an opportunity to do so).
On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant had any political or activist or leadership role or any role at all in any democratic or women’s or political or any movement. The Tribunal does not accept that the applicant has had any political involvement in Fiji, nor that she was a member of any political party including SDL or SODELPA, nor that she was a member of the [Organisation 1] nor that there was any reason for anyone to consider that she was anti-government or any kind of activist in Fiji. It does not accept that she attended meetings/ gave speeches which were considered to be political or anti-government, that she attended workshops on women’s’ rights/ democracy nor that she was threatened, fearful, harmed, by government authorities, for any other reason.
Further, it does not accept that she was a leader of [Organisation 3], although it is prepared to accept she attended church in Fiji (in various locations at various times, including at the different locations where her children lived). The Tribunal is prepared to accept that the applicant has attended church in Australia and has been involved in church activities here. She did not suggest that she faced harm for this reason and nor is the Tribunal satisfied on the evidence before it (including the DFAT Report) that the applicant faces a real chance of serious harm or a real risk of significant harm for reason of her future attendance in Fiji at church and in church activities.
The Tribunal put to the applicant that she had had the opportunity to be politically active in Australia; however, it does not appear that she has been politically active, and it does not appear that if she returned she would be of interest to the government or the authorities. In response she said that she is not participating in any political movement as she is not an Australian resident yet and she fears that, if she does participate, she would face harm from the Prime Minister who is a dictator. The Tribunal is not prepared to accept her explanation for not becoming politically involved in Australia (especially in light of her claim of (public) political involvement in Fiji). As noted above, the Tribunal put to the applicant concerns about her claimed political involvement pursuant to s.91R(3) of the Act. The Tribunal has considered her evidence and explanations about her involvement with an organisation of which she is not aware of its name, in Australia. It is prepared to accept that, because she believed it would assist her protection visa application claims, she attended a few meetings of an organisation in Australia (which she ceased attending in 2014 because she moved locations); it does not accept that she did this for political reasons; it considers that she did so for the sole purpose of strengthening her refugee claims. Accordingly it disregards this in relation to the assessment of her refugee claims. In considering her complementary protection claims, the Tribunal does not accept that she has had any genuine political involvement in Australia. The Tribunal notes the applicant’s assertion that there are CID in Fiji who pass information back to Fiji. The Tribunal is not satisfied that there is any evidence before it to suggest that the Fijian authorities would be aware of the applicant’s attendance (2013/ 2014) at a few meetings nor for her to face a real chance or a real risk of being imputed with a political opinion.
The Tribunal does not accept that she has been, or would be in the future, prevented from having political involvement due to her fear of consequences. The Tribunal considers instead that she has had, and has, no interest in politics or involvement in politics (other than to attend a few meetings in Australia to strengthen her claims). It does not accept on the evidence before it that she faces being imputed with an adverse political opinion nor in soldiers visiting her home, nor being harmed by soldiers or an informer.
General situation
The Tribunal accepts that Fiji is generally stable and secure; the 2006 coup was non-violent and did not affect the country’s overall security; and elections in 2014 were calm and free of violence (DFAT Report paragraph 2.48). Although the Tribunal accepts that there is some crime and violence, the Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of the authorities, the political situation, human rights concerns, corruption, or the general security situation in Fiji.
As a woman
At the second hearing, the Tribunal put to the applicant that she had not claimed to Tribunal that she had a general fear as a woman; and that the only time she claimed to fear harm on the basis of her gender was because of her husband and possibly in relation to her encounters with the police and army (which claims the Tribunal has not accepted). In response, the applicant said that ever since the coup in 2006, there is the issue of people be stopped by the military and police and being told to do things and they were fearful. The Tribunal noted that she was present in Fiji from 2006 to 2013 and she had not suffered harm (apart from the claims above) as a woman. She said that she is not sure about the atmosphere in the village now. She also said that in the past, she had to stop what she was doing (political activity), to prevent anything from happening. The Tribunal has not accepted that she has sought to engage in political activity, nor that she was somehow prevented by fear in engaging in political activity. The Tribunal finds that she lived and worked in Fiji all of her life until 2013, including for seven years after the coup, and it finds that she did not face harm as a woman in Fiji. The Tribunal finds that she has lived with her family, studied, worked and has been able to travel out of Fiji. She has a lot of support in Fiji. It considers that she will live with her family members upon return, as she has done in the past. It considers that she is a very resourceful woman who has been successful in obtaining assistance from people and that she is prepared to tell untruths to obtain desired outcomes.
The Tribunal has considered country information in relation to women provided by the applicant, and the DFAT Report indicates that there is little official discrimination against women in law or official policy although women are underrepresented in government, and there is widespread societal discrimination against women. The report notes problems with physical and sexual violence against women but also notes there are legal protections against the violence and that the police have a policy which means domestic abuse and rape cases cannot be dropped by police and must be investigated. When asked what worried her about returning to Fiji she did not say that she was concerned about general violence as a woman. On the evidence before it, the Tribunal is not satisfied that this applicant, in her circumstances, faces a real chance of serious harm, or a real risk of significant harm, for reason of being a woman in Fiji.
While the Tribunal has considered the evidence in relation to women in Fiji, it is not satisfied that in her particular circumstances, she faces a real chance of serious harm or a real risk of significant harm as a woman in Fiji. The Tribunal is not satisfied that the applicant faces a real chance or a real risk of requiring state protection in Fiji.
Employment and financial situation
At the second hearing, the Tribunal said to the applicant that it was prepared to accept that she had retired in [year]. It accepts that in April 2009 the Fijian government introduced a decree making 55 years the retirement age in the public service[12] (including the [applicant’s occupation]). However, the Tribunal has found that the applicant was untruthful concerning her work after her retirement and her financial position generally. The Tribunal considers it likely that, as claimed in her visitor visa application, she has two homes and [another property]. Further, if the applicant returns to Fiji there is no evidence indicating that she cannot seek alternative employment or other sources of income. Further, she has [a number of] children, many of whom are grown-up and working, and the Tribunal put to her that it appeared that she did not appear to face a real chance or real risk of serious or significant financial/economic/survival harm. In response, she said that she is not a dependent type of woman. However when the Tribunal asked how she was surviving in Australia, and she said she depends upon her partner (because she did not have work rights). The Tribunal is not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm (including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment) for financial/economic/survival reasons, including in the continued support to her child under 18 years.
The applicant’s current relationship
[12] State Services Decree 2009 Decree No. 6 “Retirement Age in the Public Service” 14 April 2009

The applicant claimed that she has had a relationship for one year with a man who is an Australian citizen who has lived here for [a number of] years; he gave evidence at the hearing. He said that he is in a relationship with her; in the circumstances the Tribunal is prepared to accept that they are in a relationship. The Tribunal is not satisfied that this will lead to the applicant suffering a real chance of serious harm or a real risk of significant harm in Fiji.
The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Fiji. Nor does it accept that this is what she faces a real chance or risk of upon return.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared), as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of Convention-related persecution for any of the reasons put forward by her, or on her behalf.
Complementary protection
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) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any of the past harm or threats or adverse interest as claimed.
The Tribunal has accepted that the applicant is an educated female with qualifications and work experience in both Fiji and in Australia; that she has numerous adult children, and relatives in Fiji. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning her claims that she faces a real risk of significant harm.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason (including as a woman, from her (now deceased) husband, in her daily life or financial situation or in living with her family or working, as a woman, nor for any actual or imputed political reason).
On the evidence presently before it, 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 a receiving country, in this case Fiji, there is a real risk that she will suffer significant harm for the purposes of 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).
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

The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christine Cody
Member

ANNEXURE A - 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.
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.

[2017] AATA 2650

14 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice