1513987 (Refugee)

1513987 (Refugee) [2017] AATA 2367 (11 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1513987
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Roslyn Smidt
DATE:11 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 September 2017 at 12:03pm

CATCHWORDS

Refugee – Protection Visa – Fiji – Political opinion – Christian secessionist movement – Ethnicity – Indigenous Fijian – Social group – Divorced woman – Domestic violence – Sexually transmitted infection – Adoption – Witness credibility

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who is a citizen of Fiji applied for the visa [in] February 2015. The delegate found most of the applicant’s claims to lack credibility and refused to grant her a protection visa.

THE 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

BACKGROUND

The applicant is a [age] year old indigenous woman of Christian religion. She married in 2000 and has [number] children from the marriage; [details of children]. She is now divorced. Her former husband and children remain in Fiji. She has been in a de facto relationship with another [individual] from Fiji for over a year. He is not included in this application.
The applicant was raised by her mother and step-father, who married when she was a baby. She was informally adopted by her step-father. She has [a number of step-siblings]. She spent the first [number] years of her life [on] an island about [distance] kilometres from [Location 1]. Her biological father lived in the same village, but she had almost no contact with him. In 1993 she moved with her family to the village of [Village 1] which is located near [Location 1] where she lived until she married and moved [to] [Location 1]. Her stepfather is [a senior position] of that village. In 2007 she was posted to [a different location] which is about [distance] kilometres from [Location 1]. She remained there with her husband and children until 2009 when they returned together to [Location 1]. She lived in [Location 1] with her husband and children until early 2014. She had given differing accounts of where she resided following that time.
The applicant studied at [university] from 1996 to 1999. In 2006 she obtained a [qualification] from the same institution. In 2014 she successfully completed the first Trimester of a [degree].
The applicant worked for [Company 1] in a variety of [roles] from 2002 until February 2013. After arriving in Australia she worked as a carer. About a year ago she established a [business] with her current partner. At the hearing she said that business was doing well.

MIGRATION HISTORY

The applicant was granted a visitor visa [in] September 2014 and arrived in Australia [in] November 2014. [In] January 2015 she lodged a protection visa application, but it was found to be invalid. [In] February 2015 she lodged a valid application for protection.

SUMMARY OF CLAIMS

The applicant claims that she is at risk of serious or significant harm for reasons of political opinion as a result of views she holds and has expressed in Fiji and Australia; because of her status as an adopted child who was born out of wedlock and is not a native of her stepfather’s village; because of her status as a woman or a divorced woman who has been a victim of domestic violence; because of gossip about the fact that she suffered from sexually transmitted disease which has caused problems with her family and others and because she has suffered from mental illness which also left her vulnerable to ill-treatment from her family and others.

CLAIMS AND EVIDENCE

Primary application

The applicant first lodged a protection visa application [in] January 2015. She said that she had been laid off by her [employer] in 2012 and that she had received help from a rural women’s social group. This application was found to be invalid because she had failed to provide specific claims for protection.
[In] February 2015 the applicant lodged a valid application. [Ms A] was named as the authorised recipient on that application.
The applicant claimed that she had been laid off by [Company 1] in February 2013 she had shared dissident views about the Fiji One political party with other members of a rural women’s group to which she belonged. Specifically, she claimed that she had criticised [government policies] which she believed included false promises. These discussions were reported to her step-father who was [in a senior position] of his village. He was concerned that he would lose access to government financial support because of her statements and as a result she had to leave her employment and undertake academic studies while she awaited the decision of village elders. She also claimed that she had been physically harmed by her brothers for expressing these views. She sought help from the police and the local court in [Location 1] but she was told that because the issue related to a local woman’s group it would be best to sort it out in the traditional manner so she had to wait for her step-father’s final decision. She tried to move to the island where she was born, but she was not accepted by her biological father’s people. She also claimed that traditional laws meant that she was not permitted to leave the boundaries of the land belonging to her step-father and that her status as a woman made it very difficult for her to obtain protection.
The applicant provided a number of documents with this application, including a certificate of service from [Company 1] which states that she was employed as [occupation] from January 2010 until [March] 2013 and a transcript from [a university] dated [in] September 2014 which states that she had successfully completed the first trimester of a [degree].
[In] May 2015 the applicant provided a written submission in which she said that she had been adopted in the traditional manner by her step-father and claimed that this was an insult to his people as she was not registered in his village. Because of this and because no father was named on her birth certificate she had always been attacked by her stepfather’s people and denied the right to express her opinions freely or participate in the cultural life of her village or the local province.
The applicant advised the department that [Ms A] had died [in] May 2015. She provided a copy of [Ms A]’s death certificate which states that she had suffered from [various diseases and cause of death]. She also provided a copy of a witness statement which she provided to the police which states that she met [Ms A] in 2015 and had been her carer for several months. It also states that they were distant relatives.
The applicant attended an interview with the delegate [in] May 2015. She was interviewed with the assistance of a male Fijian interpreter. I have listened to the recording of this interview. On occasion the delegate asked compound questions which may have confused the interpreter and applicant, but overall she was given an adequate opportunity to provide her claims. The following summary does not always follow the order in which evidence was provided.
The applicant confirmed that she had been [Ms A]’s carer and explained that [Ms A]’s [description of relationship]. She said that [Ms A] had written the claims contained in her primary application. When asked if there were any errors in the application she said that the political party referred to as Fiji One was in fact Fiji First. Later in the interview the delegate noted that a number of details had not been included in the application. The applicant said that she had deferred to [Ms A] who had more experience in the area. The delegate observed that it appeared the applicant had worked and studied in English and would have understood the contents of the application. The applicant confirmed that she could speak English well, but said that the application had been prepared in haste and [Ms A] had told her that she could explain anything else at the interview.
The delegate asked the applicant to clarify her whereabouts between 2010 and 2014. She said that while she was still working she lived [in] [Location 1] with her husband and in-laws, but she went to her village ([Village 1]) on the weekends. However, she moved to [Village 1] to stay with her parents in early 2014 because she was [suffering a mental illness] and her parents were the only ones who would support her. They took her to counselling and prayers. Her husband did not help her. She remained with her parents until she left for Australia [in] November 2014.
The applicant repeated the claim she had lost her job in 2013 after she raised concerns about government [policies] at meetings of a rural woman’s group. She said that informants had reported her comments to the government. When asked to confirm that she had been dismissed, she said that she had not been dismissed, but had taken time off work because she was [suffering an illness] and later resigned as she wanted a certificate of service and she was told she could only get one if she resigned. The delegate asked if she had been asked to resign because she had taken excessive leave. She responded that another reason she lost her job was because she had criticised the government to colleagues during breaks at work. When asked to clarify this claim, she said that [details of criticisms]. Later in the interview the delegate advised the applicant that it was still unclear to her whether she had resigned or been dismissed in 2013. The applicant said that she had taken leave and while she was on leave she was called and told that she was under investigation for releasing information about problems with procedures at work and that she should not return to work. After that she was forced to resign in order to obtain her certificate of service.
The delegate noted that the applicant had left work in Feb 2013 and moved to her parents’ village in early 2014 and it therefore appeared unlikely that her activities in her village had impacted on her employment. The applicant said that she had expressed her views at meetings at the rural women’s group during visits to her village in January and February 2013. She said that she had had no further involvement with the group following that time.
The applicant was asked to clarify the claim that she had been poorly treated by her step-father and others because she had been adopted and no father was named on her birth certificate. She said that her stepfather loved her and had not ill-treated her, but other members of the community clashed with her. She said that she was not able or permitted to contribute to the community and was treated as if she did not belong. She said that after she went to live with her parents in 2014 she had stayed mostly at home because of the discrimination she had faced.
The delegate asked the applicant what she feared would happen to her if she returned to Fiji. She said that she would be treated as a second class citizen and she feared that local people would continue to mock her and call her senile. She said that this was the reason she had been laid off work. The delegate asked why she could not return to live with her husband. She said that she had been severely [depressed] when she lived in with her family in [Location 1] and people had abused her and called her a mad woman. The delegate asked the applicant why she had not sought professional help for these problems. She said she had been depressed and fearful and could not make a rational decision. She added that she thought she might have been suffering from a demonic issue related to the villagers.
The applicant also claimed that she feared physical abuse, including from her family. She said when she was depressed her husband was not supportive and had hit her. She also feared that her brothers who resided in the village would abuse her if she fell into depression again. She said that other members of the community would also ill-treat her if she fell ill. She said that when she was not depressed her family took care of her but when she was depressed there were problems. The delegate asked the applicant if she could seek protection from the police when these problems arose. She said that they would see it as a family matter.
The delegate noted that the applicant had provided no medical evidence regarding her mental health issues and noted that the applicant had enrolled full time at university in 2014 and had passed her exams, which indicated that she was able to cope with study at that time. She advised the applicant that it was her understanding that extended family members generally provided support for each other, including to traditionally adopted children, and that there are church and community groups which assisted people suffering from ill health. She advised the applicant that this caused her to question the claim that she was suffering from mental health issues prior to departure from Fiji and had no support from anyone. The applicant responded that she had enrolled at university because she wanted to be active, but she had dropped out in the second semester. She said that she could provide evidence from a church in Fiji which would confirm that she had been suffering from depression. The delegate agreed to wait a week for this information.
[In] June 2015 the applicant provided a copy of an undated letter from [Ms A]’s daughter which stated that the applicant had been her mother’s carer from February 2015 until her death [in] May 2015 and adds that the applicant was not fully prepared and was ill-equipped for her interview [in] May 2015. The applicant also stated that she was waiting for a letter from [a church] which she hoped would arrive later the same day. This document has never been provided.
[In] July 2015 the applicant provided a statement prepared with the assistance of [a legal service]. She stated that she had had sex with a man [on] one occasion in 2007. Two days after this encounter she went to a doctor’s surgery where she was diagnosed with [Disease 1] and treated. [The man] came from the same village and told her relatives, other people from the village and her work colleagues that she had [Disease 1], but she was not aware that this was the case. People began to abuse her on the street and at public gatherings. In late 2009 and early 2009 the situation worsened and people began to say that she had [Disease 2]. In 2010 she was posted to an office [distance] miles from [Location 1], but the rumours spread there as well and by early 2011 everyone was aware of the situation. She had to take [alternate transport] to work because the stigma meant that she could not take the bus and her husband refused to walk in the street with her. In 2013 she went to the police to ask what she should do. They told her not to worry and to have confidence in herself. In 2014 while she was [classes] at university local men threw stones at her on two occasions. In April 2014 she stopped attending classes and stayed inside most of the time to avoid people.
The applicant also claimed that she had faced problems because of her political views. She said that she had belonged to [a union] [for a number of years] when the [government took measures against unions]. She was forced to leave the union in 2010. She spoke out against this measure and believes her colleagues reported her to her superiors as a result.
The applicant claimed that she was sent on leave in January 2013 after being accused of insubordination for discussing confidential information. She believes that this occurred because she was overheard discussing concerns about [various unethical activities] by [Company 1] and also because she had expressed her views about the government and the Prime Minister at work. She told colleagues that she believed that the government’s [policy announcement] was a false promise. She claimed that people had been warned not to speak against the government and some of her colleagues had been dismissed on trumped up charges for doing so.
The applicant also repeated the claim that her loss of employment was also linked to the fact that she shared her views that the Fiji First government with women in her step-father’s village; for example, she spoke about [various political topics]. Some villagers had relatives at [Company 1] and that information was passed on to her employer.

The applicant decided to look for another job but could not find one. When she asked for a certificate of service she was told she could only have one if she resigned. She then tendered her resignation saying she intended to return to her studies
The applicant said that she also feared harm from her family and people in the village community because they feared that they would be denied government funding because of her comments. She claimed that her brother and others in the community had turned against her because of this. In addition they were aware of the rumours that she was suffering from [Disease 1] or [Disease 2]. In January 2013 one of her half-brothers [assaulted her] and warned her to stop expressing her political views. After that she was afraid to remain in the village. She added that she was particularly vulnerable because she is a woman and she is not originally from that village
The applicant also claimed that she had been a victim of domestic violence. She said that her husband had verbally abused her from early 2013 when she had lost her job. She said that he was angry about the rumours regarding [Disease 2] and STIs and because she had spoken against the government. She said that his [relative] is related to [a government official] so he took her comments as a personal insult. She added that his family had pressured him to leave her. She claimed that her husband had punched her twice. She believed he had done this because she was mentally unwell and he thought that hitting her would help her to act normally. She said that she feared that he would continue to abuse her if she returned to Fiji.
The applicant said that she had begun to [notice symptoms of a mental illness] in about April 2013. She could not sleep. She [details of mental illness]. She did not go to a doctor or a psychologist because her husband would not take a day off work to take her. Late in 2013 a cousin took her to healing prayer services at [a church] in [Location 1]. She also attended counselling sessions there. Her parents also took her to prayer services when she was in [Village 1].
In about January 2014 she began to feel better and began to study at [university]. However people began to spread rumours that she had a sexually transmitted disease and she could not cope so she did not enrol for the second semester. In early 2014 she attended [a number of] interviews for [jobs], but she could hear negative comments from people who worked at these organisations as she was walking to and from the interview room. She believes that she was not employed because of fears she would bring disgrace to the organisation
The applicant said that she had not disclosed all of this information in prior written or oral submissions because [Ms A] who was helping her with her application had been ill and was admitted to hospital at the time she was helping her to prepare her application. She said that she had relied on [Ms A] to complete the application. She had not thought it necessary to read it thoroughly and had only glanced at it. She said that she had not provided all of her evidence during her interview with the delegate because she was distressed because [Ms A] had died shortly before and her funeral had been held on the previous day. In addition she had not wanted to disclose personal information because a male interpreter had been used.
Evidence provided to the Tribunal
On 13 July 2017 the applicant provided a submission prepared with the assistance of her representative. In addition to the claims made in support of her primary application she said that she was a supporter of the Christian secessionist movement in Fiji. She claimed that she was an active supporter of [Ms B], [of] [Organisation 1] and [another organisation]. In support of this claim she provided a letter from [Ms B] dated [in] July 2016 which states that the applicant is a financial member of both organisations and regularly attended meetings of the group.
The applicant also claimed that she feared harm if she returned to Fiji because of her status as a woman
With regard to the applicant’s failure to provide a full account of her circumstances in her initial application or during her interview with the delegate it was again submitted that she had relied on [Ms A]’s advice, that she was distressed because of [Ms A]’s death shortly before the interview and she was unable to provide a full account of her circumstances because a male interpreter was present during the interview.
It was also submitted that the applicant had continuing mental health issues as a result of her experiences in Fiji. In support of this claim two reports from [Organisation 2] were provided. The first report is dated [in] July 2016. It states that the applicant had attended [a number of] counselling sessions between [May] 2016 and [June] 2016 during which she reported [symptoms], including [symptoms] which she linked to her experiences of victimisation and persecution during her time in Fiji. It also states that she had [description of symptoms] in Fiji, but her symptoms had improved since she arrived in Australia. It also states that she reported high levels of anxiety about the possibly of being returned to Fiji. The second report is dated [in] August 2016. It states that the applicant had reported that her symptoms had reduced and she was coping adequately and did not require ongoing treatment. She was advised to contact the organisation again if necessary and her file was closed.
A copy of a letter dated [in] July 2017 from the applicant’s GP was also provided. It states that the applicant had presented with symptoms of PTSD and anxiety which led to [various symptoms] in October 2015. It also states that the applicant had provided a history of extensive physical and emotional abuse from her ex-husband who kept hitting, punching and kicking her until she fled the country. It states that she had several sessions of counselling with a good outcome.
The applicant provided a statutory declaration dated [in] August 2016 signed by her cousin which states that she had known the applicant since 2011 and had visited her at her home in [Location 1] on numerous occasions and observed her suffering physical and verbal abuse from her husband and in-laws.
The applicant provided copies of a number of articles which she claimed she had posted on her [social media] page. Some are dated [in] April 2016. None of the articles are screenshots and most appear to contain no information which confirms they were posted on the applicant’s [social media] account. Several include what appear to be comments by the applicant on articles posted on [social media] by other people.
The applicant also provided a number of articles and reports on the current political and human rights situation and the problems faced by women in Fiji.
On 19 July 2017 the applicant provided two letters of support. The first is dated [in] July 2017 and signed by [Mr C], Humanitarian and Human Rights Lawyer [of a certain organisation]. It states that the applicant’s life would be at risk if she returned to Fiji. Apart from stating that [Ms B] faces the same threats it gives no indication of why [Mr C] believes the applicant’s life would be at risk if she returned to Fiji.
The second letter is signed by [Mr D], [former senior public official]. It states that based on the information provided to him the applicant is opposed to the current government and has voiced her opinions on social media and as a result of this and her association with [Ms B] she would be physically assaulted and face political death if she returned to Fiji.
The applicant attended a hearing of the Tribunal on 20 July 2017. I noted that she had provided evidence of mental health issues in the past, but that the reports she had provided suggested that her problems were currently under control. I asked if she felt competent to provide evidence at the hearing. She said that she did. I advised her to tell me if she had any difficulties providing evidence during the hearing.
The following summary of the applicant’s evidence during the hearing does not always follow the order in which it was provided.
The applicant confirmed the details of her education and employment as set out above. I asked what she had done between February 2013 when she finished work and January 2014 when she returned to study. She said that she had lived at home with her husband and had applied for some jobs, but she had not been well. She confirmed that she had completed the first trimester, which ended in May 2014, but could not recall whether she had enrolled in the second trimester.
I asked the applicant if she was in contact with her husband. She said that she had not spoken to him since they divorced. She explained that she had asked him for a divorce about two or three months earlier. He agreed and they had divorced about a month earlier. She said that one of her cousins had told her that he now has a child with another woman.
I asked the applicant to explain her relationship to [Ms A]. She said that [Ms A] came from the same province as her step-father and her younger brother was married to her granddaughter. She confirmed that they had only met in February 2015
I noted that the applicant had claimed that she had experienced problems in Fiji because of her political opinion and asked if she had ever belonged to a political group or party. She said that she had joined SODELPA about a year before she left Fiji. She was not very active but she spoke about the party to women in her father’s village during social gatherings and also spoke to her colleagues at work. I asked her which of SODELPA’s policies she had discussed during these conversations. She said that she had not been engaged in promoting SODELPA’s policies, but she had criticised the government. For example, she said that she believed that their [particular policy] was only intended to buy votes. She also believed that many of the government’s policies were not supportive of indigenous people, but she had not spoken to anyone about these views at that time.
I observed that the applicant had not mentioned her membership of SODELPA prior to the hearing. She said that she had told [Ms A] and had assumed she would include it in her application. I advised her that advice from DFAT indicated that ordinary members of SODELPA were not generally at risk of serious harm because of this. She disagreed with this and said that opponents of the government were victimised and abused and some were tortured. Later in the hearing she said that she had not been a member of SODELPA, just a supporter.
I asked the applicant if she had been involved in any other groups which had caused her problems in Fiji. She said that she had only been a member of SODELPA. I noted that she had previously spoken about her involvement in a rural women’s group which she said had caused her problems. She said that she had been involved in an informal social group which met in private homes and sometimes in a community hall to speak about issues affecting members. She added that members of the group would inform her work colleagues that she had spoken against the government during these meetings. I asked the applicant why she had not mentioned this group when I asked about her involvement in any groups in Fiji. She said that she had not faced direct problems because of the women’s group and added that most of the members were members of SODELPA. I observed that it therefore seemed unlikely that anyone from that group would have reported her comments to her work colleagues. She said that some of the women were married to [government workers] and that this was what happened in Fiji. I asked when she had attended meetings. She said that she had first attended about six months before leaving Fiji. I observed that she had left her job prior to that time. She responded that these problems had occurred before she resigned.
I noted that the applicant had initially stated that she had been forced to leave her job and go back to studying because her political comments had upset her stepfather and she was waiting for some kind of judgement from village elders, and asked for clarification of this claim. She said that she had not lost her job because she had upset her stepfather. However, the traditional owners in her village met regularly and discussed people who were against the government and such people were banned. I observed that it was not my understanding that traditional owners were generally supportive of the current government or that they would have the desire or the power to ban people who criticised the government. I also observed that the applicant had continued to spend time in the village until she departed Fiji, so she did not appear to have been banned. She responded that the leaders were upset because her comments could have jeopardised funding they received from the government. I observed that she did not appear to be an influential person and it seemed most unlikely her comments would have affected government funding. She said that nonetheless this was what the leaders thought.
I noted that the applicant had claimed that her brothers had physically harmed her because she spoke against the government. She said that one occasion one of her brothers had assaulted because of her statements and because of other accusations against her. She could not recall when this occurred. I noted that according to her statement dated [in] July 2015 her brother had punched her in January 2013 for expressing anti-government political views. The applicant said that the assault had also been linked to the accusations against her.
Later in the hearing the applicant said that she feared her brothers and her step-father would harm her if she returned to Fiji because she might be seen as having tarnished their reputation. I noted that it appeared that her step-father had been supportive of her when she was ill and that according to her evidence only one of her brothers had harmed her and only on one occasion. I observed that this did not appear to be a pattern of behaviour which suggested that she would be at risk of harm from them if she returned to Fiji. She maintained that she was at risk of harm from members of her family and indicated that this was linked to the rumours spread by the man who had claimed she had [Disease 1].
I noted that the applicant had claimed that she was pressured or forced to resign from [Company 1] because of statements she had made and asked her to explain what had occurred. She said that on one occasion she had [details of incident]. She told others about this and also made other criticisms about the government, for example, the [details of criticisms].
The applicant claimed that some people had been dismissed from [Company 1] for speaking against the government. I observed that she resigned. She said that she had been sent on two weeks leave because she had been accused of [insubordination]. After two weeks she was told not to return. She requested a certificate of service in order to look for another job, but she was told that in order to obtain this document she would need to formally resign. I noted that the certificate of service she had provided was dated December 2013. She said that it had taken some time to obtain the certificate.
When asked, the applicant said she had first begun to criticise the government in 2010. I noted that the current regime had come to power in 2006 and asked if there was any particular reason she began to criticise them in 2010. She said that the government was unethical, but gave no reason for beginning to make anti-government comments in 2010.
I noted that the applicant had claimed that she had been a union member until 2009 when she had been forced to resign because she and her colleagues at [Company 1] were banned from joining a union. I advised her that the information I had [conflicted with her account][1]. The applicant said that there was no union at [Company 1].
[1] [Source deleted].
I asked the applicant if she wished to provide any further information about her involvement in politics or problems this had caused her prior to her departure from Fiji. She said that she had nothing to add. I advised her I had some problems accepting her claims regarding her political activities as she appeared to have given differing accounts of her activities and the problems they had caused her and she appeared to have limited knowledge of the issues of the time. I observed that it she appeared to have had at most a very low level of involvement in political activities in Fiji and it appeared unlikely that she was of adverse interest to anyone prior to her departure from Fiji because of her political opinion. The applicant maintained that her claims were true and that she had lost her job for political reasons.
I noted that the applicant had previously claimed that she had faced problems because her biological father was not named on her birth certificate and she was raised by her stepfather. I advised her that it was my understanding that traditional adoptions were common in Fiji and did not generally result in the children involved being stigmatised, and asked for clarification. She said that she had faced problems because of all the persecutions and accusations she had faced. I advised her that I was particularly interested in any problems relating to her adoption and her stepfather. She said that the problems related mainly to the people around her stepfather, but her stepfather was also involved to some extent. She said that these problems began in 1993 and added that they related to the rumours about her. I advised her that it was my understanding that the rumours had not begun until 2007. She said that this was correct and confirmed that she only experienced problems with her stepfather, his people and her brothers after 2007.
I asked the applicant to explain these rumours and the problems they had caused her. She became upset and appeared reluctant to respond. I advised her that I understood that she had had sex with a man on one occasion in 2007 and that two days later she had been diagnosed with [Disease 1]. She confirmed that this was correct and said that she had been drunk at the time she slept with the man. She said that she had gone to a doctor two days after the encounter because she had [other] symptoms of a disease. He told her she had [Disease 1] and gave her treatment. I observed that, while I was not a medical expert, it was not my understanding that the symptoms of [Disease 1] emerged within [number] days. The applicant maintained this is what had occurred.
The applicant said that she had never spoken to the man after their first encounter, but within a week a friend told her that the man, who also had [Disease 1], was telling people that she had the disease but she was not aware of the fact. She told her friend that she had contracted [Disease 1], but she had been treated. She told her husband what had happened and he told her to stop her drinking and stuff. However, he did not end the marriage. He did not speak to anyone about what had happened.
I advised the applicant that I found surprising that she was diagnosed so quickly and somewhat surprising that she had confirmed the rumours were true when her friend told her about the allegations rather than perhaps deny the claim. The applicant maintained that her claims were true.
I advised the applicant that, even if I accepted her evidence regarding the diagnosis and original claims by the man, I had difficulty accepting that these rumours had followed her from place to place and caused people at work and in the street to talk about her and abuse her from 2007 until she left Fiji in 2014 as she had previously claimed. She maintained that these claims were true and added that there were all sorts of rumours. I noted that she had continued to work until 2013, that her marriage had continued, that according to her earlier evidence she continued to visit her family regularly until her departure and asked if she had experienced any problems because of her liaison apart from the upsetting gossip. She said that her ex-husband used to physically abuse her and his family rejected her and also abused her physically. Later in the hearing she said that she feared that the gossip would continue if she returned to Fiji and she would become ill again and might harm herself.

I asked the applicant for more information about her problems with her husband. She said that she had begun to have problems with her husband in about 2010, three years after her encounter with the man. By then they had returned to [Location 1]. He spent long hours at work, and was under pressure from his family, and when he came home drunk he would assault her. She said she was under great pressure and she began to believe that the rumours were true. She was unable to take care of herself and her husband would punch her and force her to take a shower. I noted that she had previously said that her husband had only punched her twice and that he did this because she was mentally unwell and he mistakenly believed that if he hit her it would make her behave normally. The applicant said that it was true that her husband had only punched her twice, but on other occasions he would push her to make her go and have a shower and there was also verbal abuse.
Later in the hearing the applicant said that she feared her husband would pursue her and harm her if she returned to Fiji and she might even be killed. I advised her that I had some concerns about her evidence regarding the extent and circumstances of harm she suffered from her husband and that as her husband had agreed to a divorce and it appeared that he might have a new relationship it appeared unlikely that he would harm her if she returned. She said that he would pursue her if she returned and added that he takes drugs.
I asked the applicant to tell me about the mental health issues she had experienced in Fiji. She said that she could not recall exactly when the problems began but it was after she ceased work [in February 2013]. She could not sleep and she began to [symptoms of illness]. This went on day and night and she could not concentrate. She was fearful and could not eat or care for herself. She would do things [symptoms of illness]. She did not seek medical help from anyone. Her husband tried to avoid problems by staying at work for long hours.
I noted that the applicant had returned to university in early 2014 and observed that this suggested that her health had improved by that time. She said that this was correct and added that she had gone to a healing church where a pastor prayed for her. I asked why she had not sought medical assistance when she was unwell. She said that her husband had not taken her to the doctor or helped her in any way, but her parents assisted her to go to the church for help by paying her fare. I observed that it seemed a little strange that nobody had considered getting professional help for her. She said that she had not sought medical assistance because she had believed that the problems were demonic.
I asked the applicant if she had experienced any other problems during the time she was ill apart from [symptoms]. She repeated the claim that her husband had hit her twice and his family also treated her badly. She said that she had remained at home with her husband and children and she was mostly in bed. For much of the time she was ill she was too unwell to visit her parents, but she did go to see them when her health improved.
I asked the applicant several times if any other bad things had happened during the time she was ill. She said that people continued to talk about her so she could not go to places where people gathered. I reminded her that she had previously claimed that she had [suffered further symptoms] in about April or May 2013 shortly after she [developed her initial symptoms], but her husband had stopped her. She said that this was true. I advised her that I was surprised that she had not mentioned this. She said that she had forgotten. She said that one night she had [details of symptoms]. Even then he did not take her for treatment. She did not tell her parents she [was suffering from certain symptoms].
I observed that it appeared that the applicant’s parents had done their best to help her when she was unwell. She said she had not visited her parents or told them about her problems until she began to feel better. After that she began to visit them on the weekends and told her mother about her problems. Following this she began to go to church for help. Her cousin also helped her to go to church.
I asked the applicant if she had stopped [experiencing symptoms] before coming to Australia. She said that she had sometimes [experienced symptoms] after arriving in Australia. For example, when she attended meetings with [Ms B]’s group [sometime in 2016], she [experienced symptoms]. She said that she had also [experienced symptoms] at other times when she was upset including on two or three occasions during the time she was attending counselling with [Organisation 2]. She said that she had told her counsellor at [Organisation 2] about this problem. I noted that the reports mentioned a number of symptoms, but said nothing which suggested that she had reported [that particular symptom] at the time. I observed that while I was not an expert on mental health issues it was my understanding that [that particular symptom] she claimed to have [experienced] in Fiji could be a symptom of very serious issues and it therefore seemed surprising that this was not mentioned in the report. The applicant maintained that she had reported [the symptom]. She said that she had discussed this with her counsellor, but the counsellor said that this was probably linked to her emotions and memories. The counsellor told her that she had recovered and that she could come back if she had any further problems.
The applicant said that she had also discussed her health issues with her GP who gave her [medication for her symptoms] and told her she could refer her to a psychologist, but she would have to pay. She said that her GP had not provided counselling and the sessions referred to in her letter were those conducted by [Organisation 2].
I noted that the letter from her GP stated that she had reported a long history of physical abuse by her husband, which was different from the evidence she had provided to me. She said that she had told the GP about the abuse she had suffered since the beginning of her marriage, but had understood that I was only asking about the problems which began after she began to suffer mental health issues. I observed that I had asked her several times about when these problems began and she had clearly stated that they started in 2010. She maintained that her husband had been violent towards her since the beginning of their marriage.
When asked, the applicant said that she had provided all of her evidence regarding the problems she faced prior to her departure from Fiji.
The applicant’s failure to provide a number of her claims in her initial protection visa application or during her interview with the delegate was discussed. She again claimed that she had relied on [Ms A] and said that she had not reviewed the application which [Ms A] had prepared for her to ensure that it was complete. I advised her that I had difficulty accepting this as she had only just met [Ms A] at the time she lodged her application and [Ms A] was unwell at that time and not qualified to assist with migration applications. She responded that [Ms A] had helped many Fijians with their applications and maintained that she had relied on her advice when lodging her application.
The applicant also claimed that she had failed to provide a full account of her claims during the interview with the delegate because she had found it difficult to talk about her problems, particularly because she was assisted by a male interpreter. I observed that, while it was perhaps understandable that she might have had some difficulty discussing aspects of her case in the presence of a male interpreter, she was literate and spoke English well and she had had ample opportunity to provide a full account of her situation. The applicant said that she was still suffering as a result of her past problems.
I asked the applicant about her political activities in Australia. She said that she had [financially contributed to the secessionist movement]. She could not recall how much she had donated. I asked the applicant whether she supported secession by Christian provinces or she just objected to [the conduct of the government]. She said that she believed that Muslims were taking over Fiji and she supported Christianity and calls for secession.
The applicant claimed that she had joined [Organisation 1] and had attended 4 or 5 meetings of the group in 2016. When asked why she had joined the group she said that it supported the rights of indigenous Fijians which were being taken away by the government. When asked what happened at these meetings she said that the [financial contributions] was discussed. She said that she had sometimes arrived late for the meetings and was not sure what else was discussed. She said that she had stopped attending the meetings in 2016 because she was busy.
I noted that the applicant had failed to provide any information about her participation in these events until immediately before the hearing, which caused me to question the accuracy of these claims. I also noted that even if I accepted her claims at face value she appeared to have had limited involvement with [Organisation 1] which had now ceased and it appeared unlikely that this would cause her any problems if she returned to Fiji. She responded that the media had reported that followers of [Ms B] would be pursued by the government and said that she feared that she would be charged with sedition and possibly tortured or killed because of her support for the secessionists. I advised her that it was my understanding that the men charged with leading the secessionist movement had been charged and released on bail and it appeared unlikely that she would face more serious problems given her limited involvement. She maintained that she was at risk of serious harm if she returned to Fiji.
The applicant repeated the claim that she had posted articles on her [social media] page. I advised her that I had reviewed what I understood to be her [social media] page but had not seen any political posts in 2016 or 2017. She said that she had posted some articles in 2015 and 2016, but she had stopped because she was busy. When asked for details of the material she had posted she said that it was critical of the government and how they were unethical and abused human rights. I observed that it seemed unlikely that the Fijian authorities were monitoring her [social media] page and that even if I accepted she had posted some articles critical of the government in the past it appeared unlikely that this would cause her problems if she returned to Fiji now. She maintained that she would be at risk of harm because of all her activities.
The applicant claimed for the first time that she had attended a demonstration in [Australia] arranged by the group in support of indigenous Fijians and protesting their lack of government support. She could not recall when the demonstration took place.
I asked the applicant whether she was claiming that she would face discrimination because she was an indigenous Fijian. Her response was unclear. I advised her that information from DFAT indicated that the government had acted to remove past privileges enjoyed by indigenous Fijians, but these were not measures intended to repress or deny rights to indigenous people. She maintained that indigenous Fijians faced discrimination.
I asked the applicant about the letter of support from [Mr C]. She said that she did not know him personally but he knew her partner’s [relative]. I noted that the letter said that she would be killed if she returned to Fiji which seemed a rather extreme claim from a reputable human rights lawyer who did not know her. I also noted that his name did not appear on the [organisation’s] website and the [organisation] was not mentioned in his CV which I had located on [details of CV].[2] I advised her that in light of these issues I had some concerns about whether the document was genuine. I also advised her that even if I accepted that it was genuine the author did not know her personally and did not appear to properly understand her situation and in those circumstances it was difficult to give the letter much weight. I asked the applicant if she wished to comment, but she did not respond.
[2] [Source deleted].
The applicant said that the letter apparently signed by [Mr D] had also been obtained by her partner’s [relative]. I advised the applicant that I was a little surprised that a former [senior public official] would have written such a letter for someone he did not know. She said that he had written the letter because she supported the Christian succession groups and [Ms B]. I advised her that it was not my understanding that [he] was involved with either group in any way. The applicant said she was not sure if he was involved. I also advised her that even if I accepted that the letter was genuine it appeared that the only knowledge [Mr D] had of her activities was information which she or her relatives had provided and the assessment that she would be at risk of serious harm seemed out of keeping with her level of involvement in politics. She did not comment.
At the end of the hearing the applicant’s representative submitted on her behalf that in addition to the claims already raised she feared harm because she would be returning as a divorce woman and there was a stigma attached to divorce in Fiji. Because of this and the other problems she had faced she would be at risk of sexual violence from members of the community who would perceive her as someone who could be subjected to such treatment. I advised the applicant and her representative that I was unaware of any evidence which suggested that divorced women in Fiji were generally at risk of serious harm.
I agreed to provide the applicant and her representative with an opportunity to provide further submissions in writing. On 2 August 2017 she requested an extension of time to provide these submissions as she was seeking further psychological records from [Organisation 2]. No further reports from [Organisation 2] have been received.
On 11 August 2017 the applicant’s representative provided a further submission.
With regard to the inconsistencies and other problems with the applicant’s evidence it repeats the earlier submission that she had relied on [Ms A] and adds that [Ms A] was recommended by her [relative] and had a reputation for helping other Fijians in similar circumstances. It also states that at the time the applicant first met [Ms A] she appeared to be well and not suffering from any illnesses.
The submission states that the applicant’s ability to provide evidence has been hampered by her mental state since she first applied for protection and states that she had reported experiencing mental blocks which prevented her from recalling events during the hearing. It notes that she had reported to [Organisation 2] in 2016 that she believed her symptoms where linked to her experiences of victimisation and persecution in Fiji and that while her symptoms had improved in since being in Australia she was reminded of her past difficulties when in contact with other members of the Fiji community. It also notes that she had expressed high levels of anxiety about returning to Fiji as she did not feel she would be able to live in peace.
With regard to the applicant’s claims relating to political opinion it was submitted that she had provided a substantial amount of evidence, including corroborative evidence, in support of her claims. It states that the letters from [Mr D] and [Mr C] were intended as evidence of the situation of opponents of the government in Fiji, not as verification of the applicant’s claims. It was submitted that it was not possible to gauge how active someone was on [social media] by looking at their [social media] page as this did not provide a complete record of past postings and some things are only available to those who are friends. It also submits that while the applicant’s activity on [social media] might not be enough to place her at risk of harm in Fiji considered together with her other activities it supported her claim that her fears were well-founded.
With regard to the issue of domestic violence, it submits that the applicant’s husband was violent to her throughout their marriage and adds that he would come home drunk and punch, kick and verbally abuse her for having shamed him because of the rumours about contracting an STI and [Disease 2]. It repeats the applicant’s earlier claim that the evidence which suggested this was not the case was the result of a misunderstanding
According to the submission, the applicant first asked her husband for a divorce in November 2016 at which time he threatened to come to Australia and hunt her down. It also argues that domestic violence is common in Fiji and that divorce initiated by a woman is viewed as disgraceful and not within a woman’s rights and would place her at greater risk of harm as she would be viewed as having shamed her husband and would not be afforded any protection by the police or the government. No independent country information regarding the situation of divorced women was provided.
With regard to the applicant’s fear of harm from her step-father and half-brothers it was submitted that because she was adopted, had expressed anti-government views and was the subject of gossip regarding having contracted an STD she was seen as having brought shame on the family which was particularly significant given her father’s status. Because of this he had sworn at her and threatened her. When she became ill in 2013 she reached out to her mother who facilitated her visits to the church for healing. Her step-father did not prevent her from receiving help because he believed that the problems were demonic and he feared that her symptoms might worsen and affect his reputation if he intervened.
With regard to the assault by her brother, it was submitted that she had consistently claimed that this had only occurred once in about January 2013 and this occurred because he believed that she had disgraced his father by openly criticising the government. In addition her brothers had subjected her to torment and ridicule because of the rumours regarding the claim that she was suffering from an STD.
Finally, in was submitted that the applicant’s fears of future harm were well-founded because she was considered an outsider in her step-father’s village, was perceived to be suffering from an STD and had expressed anti-government views. It was submitted that in the current political climate in Fiji her step-father would be obliged to honour his role as [senior position] and would not afford her any protection from the people in the village, particularly the men, who might threaten and harm her based on her alleged diseases and her status as a divorced woman.
With regard to the applicant’s claims relating to gossip relating to her contracting a sexual disease it was submitted that this was not intended as a central claim in her application but as background to assist in understanding her circumstances in Fiji. It was submitted that the rumours and the degrading social treatment which the applicant had experienced as a result of these rumours had caused her to suffer severe psychological trauma and if she returned she feared that she would once again be subjected to these rumours which would send her back into the cycle of anxiety and depression she had suffered in Fiji.

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant’s ability to provide evidence at the hearing

It has been submitted that the applicant’s ability to provide evidence at the hearing was significantly hampered by her continuing mental health issues which prevented her from remembering some past events.
I acknowledge that the applicant may have been stressed during the hearing and have taken this into account when assessing her claims. However, I do not accept that her ability to provide evidence was significantly hampered by past or current mental health issues. She was asked at the beginning of the hearing if she felt competent to provide evidence and stated that she was. She was also advised to speak up if she experienced difficulty during the hearing. However, neither she nor her representative raised any such concerns during the hearing. I note that there were two breaks in the hearing during which the applicant had the opportunity to speak privately to her representative about any problems she was experiencing. Finally, while it is true that the applicant’s evidence was sometimes hesitant and confused, her answers were generally responsive and did not suggest that she was unable to provide evidence regarding her circumstances.

The applicant’s ability to provide evidence prior to the hearing

It has also been submitted that the applicant’s ability to provide a coherent and reasonably complete account of her claims prior to the hearing was severely impacted by her continuing mental health issues. The issue of the applicant’s mental health problems in Fiji is discussed in more detail below. However, I do not accept that she was unable to provide a reasonably complete and coherent account of her claims in her protection visa application or during her interview with the delegate as a result of mental health issues. Even if I accept her claims regarding her breakdown in 2013 at face value, it is clear that her health had improved significantly prior to her departure from Fiji. Her ability to complete the first trimester of a university degree in early 2014 is a clear indication that she was able to think and write rationally about complex matters at that time. I note that she has stated on a number of occasions that her health improved significantly after she arrived in Australia. I also note that she has worked as a carer since arriving in Australia and established a successful [business] in 2016. While I acknowledge that people suffering from mental health issues may be able to function well in some aspects of their life but still face problems in others I find this to be a strong indication that she was coping reasonably well after arriving in Australia.
In reaching this conclusion I have considered the applicant’s evidence at the hearing that she continued to [experience a particular symptom] after arriving in Australia and that this occurred during the time she was receiving counselling from [Organisation 2]. However, this is at odds with her earlier evidence that the [symptom] had ceased after she arrived in Australia and information in the [Organisation 2] reports which states that she had reported that her health improved after she arrived in Australia. Furthermore, while the reports indicate that she was experiencing symptoms of depression and anxiety in mid-2016 they do not suggest that she had reported that she [had that particular symptom] at that time. Finally, the reports state that the applicant chose to end the counselling sessions on August 2016 because she was coping reasonably well and the counsellor accepted that this was the case. I do not accept that this would have occurred if the applicant was [experiencing that symptom] at the time.
There is nothing in the [Organisation 2] reports which suggests that the applicant was incapable of providing a reasonably complete and coherent account of her situation at the time she lodged her protection visa application in February 2015 or at any time following her arrival in Australia due to poor mental health.
I have also noted the letter from the applicant’s GP. However, I note that he did not provide the applicant with psychological counselling and appears to have based his assessment of her problems on information which I have found to lack credibility (see section on domestic violence below). I have given little weight to this letter when considering the applicant’s ability to provide evidence in support of her claims.
The applicant claims that she failed to provide a reasonably complete account of her situation in her primary application because she had relied on [Ms A] to prepare the application and had assumed that she had included all of the necessary information. I do not accept this explanation. While it may be that [Ms A] was a respected member of the Fijian community and had assisted others with their migration applications in the past, she is not a migration agent. According to her death certificate she had been unwell for some time. I note that the applicant was employed as her carer from the time they met or shortly afterwards and that she told the delegate that [Ms A] was unwell and was hospitalised when she was assisting her to prepare her application. On the other hand, the applicant speaks English well, has attended university and held responsible [positions] for many years. In these circumstances it is not plausible that she would rely almost completely on [Ms A] to prepare her application and would have failed to read the application to ensure it was accurate and complete before it was lodged. I also note that the applicant gave additional written evidence to the Department of Immigration [in] May 2015, a week after [Ms A]’s death and several days prior to her interview with the delegate. It is clear from this that she was aware of the contents of her application, aware that it did not contain all of her claims and capable of providing evidence without [Ms A]’s assistance.
The applicant has also claimed that she failed to provide a full account of her situation during her interview with the delegate in part because she was distressed following [Ms A]’s death (10 days prior to the interview) and funeral (two days prior to the interview). I accept that [Ms A] may have been saddened by [Ms A]’s death. However, I note that they were not close relatives or friends and met just over 3 months prior to [Ms A]’s death. And, as noted above, she was able to provide a written submission setting out new claims the day before the interview. I do not accept that she was so distressed by [Ms A]’s death that it significantly hampered her ability to provide evidence prior to or during her interview with the delegate.
The applicant has claimed that she failed to provide a full account of her situation during her interview with the delegate in part because a male interpreter was used during the interview. I acknowledge that the applicant may have been reluctant to provide evidence regarding some aspects of her claims in the presence of a male interpreter. However, this does not explain all of the problems and omissions with her evidence during her interview with the delegate. In addition, the applicant speaks excellent English and was clearly capable of requesting the opportunity to provide her evidence without the interpreter or of providing her claims in writing, as demonstrated by the [May] 2015 submission.

Conclusions in relation to the applicant’s ability to provide evidence and submissions regarding her failure to provide claims in a timely fashion

After considering all of the relevant evidence I do not accept that the applicant failed to provide a reasonably complete account of her claims to the Department in a reasonably timely manner because she continued to experience significant mental health issues or because she relied on [Ms A] for advice and assistance. Nor do I accept she was unable to explain her situation to the delegate or during the hearing because of mental health issues. I believe that she concocted or exaggerated these claims in order to provide an explanation for inadequacies in her evidence.
I accept that it is difficult for applicants to discuss issues relating to matters such as accusations that they suffer from an STD, particularly for a woman in the presence of a male interpreter, and I would have accepted this as a plausible explanation for her failure to mention these problems until after her interview with the delegate if this had been the only problem with her evidence. However, as discussed in detail below, this is not the case.

Claims regarding political opinion

The applicant claims that she experienced problems with her employer, the Fijian authorities and members of her family prior to her departure from Fiji because she opposed the government of the day and expressed these views openly, and that she will face similar problems if she returns to her homeland. For the following reasons I do not accept these claims.
In the first place, I found the evidence she provided regarding her involvement in politics in Fiji at the hearing unconvincing. She appeared to have only a limited understanding of the political situation in Fiji and apart from mentioning issues related to [a particular policy] spoke in very general terms about what she saw as the shortcomings of the current government. And if I accept her claims at face value her involvement in politics appears to have consisted of little more than talking to other women on several occasions and criticising procedures at her work place to colleagues. The only harm she claims to have experienced prior to leaving Fiji as a result of her political views or activities is losing her job and being viewed with disfavour in her village and, as discussed in more detail below, her evidence in relation to these problems was unpersuasive.
Secondly, the applicant’s evidence regarding the circumstances in which she lost or was forced to resign from her job was confused and contradictory.
In her primary application she said that this had occurred because she had criticised the government during meetings of a rural women’s group which upset her step-father and because of this she had to leave her job. When asked about this claim during the hearing she said that she had not lost her job because she had upset her stepfather or the people in his village.
During her interview with the delegate she first claimed that she had lost her job because of comments she made to a rural woman’s group, then claimed for the first time her loss of employment was also linked to comments to her colleagues about political influence at [Company 1]. She said that she had that she had gone on leave because she was depressed and that she was later told that she was under investigation in relation to her comments to her colleagues at which time she resigned. Later in the interview she said she had lost her job because of her mental health issues. In her submission dated [in] July 2015 she again claimed that her problems were linked to her comments at the women’s group and at her workplace, but claimed that she had been sent on leave in early 2013 after being accused of insubordination. At the hearing she said that she had been forced to resign in 2013 after telling her colleagues about [unethical government practices].
Thirdly, she has given differing accounts of her political involvement in Fiji. As noted above, prior to the hearing she has consistently claimed that she had some involvement in a rural women’s group. At the hearing she claimed for the first time that she had belonged to SODELPA, the main opposition party in Fiji, but later changed her evidence and said that she had only been a supporter. She made no mention of participating in a rural women’s group until I reminded her of her earlier evidence. She said that she had not experienced any direct problems because of her participation in the group, but also maintained that her comments had been relayed to her employer. She stated that she had begun attending meetings of the group about 6 months before leaving Fiji, but when I pointed out that she had left her job by that time indicated that she had attended meetings while still at work.
Fourth and finally, I found her evidence regarding the problems she faced with her family because she criticised the government implausible. While it may be that villages where the leadership is seen as strongly opposed to the government would be denied assistance as a result, I am unaware of any evidence which suggests that the government of Fiji would withdraw funding or support from a village because someone such as the applicant criticised their policies on [issues] or other matters at small informal gatherings of rural women or to her work colleagues. I do not accept that members of her family or anyone else in her home village believed that this was likely to occur and harmed her or sought to ban her from the village or imprison her in the village as she has claimed at different times.
After considering all of the relevant evidence I am not satisfied that the applicant was a supporter of SODELPA or that she was involved in criticising the government of Fiji at work or to a group of rural women or to anyone else prior to her departure from Fiji or that she lost her job or was threatened or harmed by members of her family or anyone else because of her political views prior to her departure from Fiji. I believe that she concocted these claims to support her application for protection in Australia.
In considering the applicant’s claims regarding her involvement in political activities in Fiji I have noted the claim that she was forced to resign from a trade union in 2009. As noted above, her claim that [workers] were banned from trade unions is at odds with information from DFAT. In addition her evidence at hearing was vague and unconvincing. I do not accept that she was forced to resign from the [union] in 2009 or that she spoke out about this decision.
The applicant also claims that she has been politically active since arriving in Australia. Given the applicant’s willingness to concoct claims to support her case and the last minute nature of these claims, I have concerns about the veracity of these claims. In any event, it is clear that her involvement in politics in Australia was at most minor and short-lived. For the reasons set out below I do not accept that she faces a real chance of experiencing serous or significant harm because of her activities in Australia.
By way of context, according to DFAT[3] the environment for the public expression of political opinion by late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The report goes on to note that some opposition leaders and activists may face problems, for example, for criticizing the Prime Minister. However, their assessment does not suggest that ordinary Fijians involved in limited or low level political activities are generally at risk of serious or significant harm.
[3] DFAT Country Report Fiji 14 April 2015 16-19
According to her evidence the applicant attended 4 or 5 meetings of [Organisation 1] about a year ago and one demonstration in [Australia] in support of rights of indigenous Fijians around the same time. [Organisation 1] is a [description of Organisation 1] which according to the letter from [Ms B] [description of Organisation 1’s activities].
According to DFAT, NGO leaders and activists who are outspoken and engage in public criticism of the government in Fiji face a moderate risk of being monitored or harassed in Fiji. The applicant is not a leader or an activist and ceased participating in [Organisation 1] activities at least a year ago. I do not accept that the Fijian government would have an adverse interest in her if she returned to Fiji now because of these activities. I am not satisfied that she faces a real chance of experiencing serious or significant harm on return to Fiji because of her involvement with [Organisation 1] or her participation in a demonstration in [Australia] in 2016.
The applicant claims that she would be at risk of harm because she is in favour of secessionist movements in Fiji and she provided support to the men charged with sedition in relation to an alleged attempt to form breakaway Christian states, particularly as the Prime Minister for Fiji has made threats against Fijians living overseas who support these movements.[4] However, while the applicant displayed some knowledge of the case involving the men charged with sedition, she failed to provide a convincing account of why she thought that secession was desirable or necessary. In these circumstances and in light of my finding regarding the credibility of her claims regarding her involvement in politics in Fiji and the last minute nature of this claim I find that it lacks credibility. I find this to be another example of the applicant concocting evidence to support her claim for protection in Australia.
[4] See for example Armbruster, S 2015, ‘Fiji PM ‘distracts’ with overseas plotter threat’, SBS News, 31 August < CXBD6A0DE17506
I note that according to the letter from [Ms B] dated [in] July 2016 and provided to the Tribunal on 13 July 2016, the applicant was also member of the Fiji Native Government in Exile. However, the applicant failed to mention this group when asked about her activities in Australia. If she had belonged to an organisation which claimed to be the government of Fiji I believe she would have mentioned it when her claims were discussed during the hearing. I do not accept that she is or ever was a genuine member of such an organisation.
The applicant also claims that she is at risk of harm because of her association with [Ms B] who is known for her support for those involved in secessionist movements in Fiji. While I acknowledge that [Ms B] has been [suffered consequences] as a result of her involvement with the secessionist movement [5], I do not accept that the fact that the applicant (who I do not accept she is a genuine supporter of the secessionist movement) attended several meetings of an [organisation] run by [Ms B] in 2016 means she would be or adverse interest to the Fijian authorities if she returned to Fiji now and I am not satisfied that she faces a real chance of experiencing serious or significant harm if she returns to Fiji because of her past association with [Ms B].
[5] [Source deleted].
I have considered that applicant’s claim that she has posted anti-government comments on her [social media] page. In support of this claim she provided copies of a number of articles which she claims to have posted on [social media]. However, they do not appear to have been printed from screen shots of her [social media] page and I was unable to locate them when I reviewed her [social media] page prior to the hearing. At the hearing the applicant said that she had stopped posting articles on [social media] about a year ago. Following the hearing her representative submitted that articles were sometimes removed from [social media] and that what was visible to the public depended on privacy setting. I acknowledge that the fact that these articles were not visible when I reviewed the applicant’s [social media] page does not mean they were never posted. However, even if I accept that the articles in question were posted at some time in the past, I am unaware of any evidence which suggests that the Fijian authorities monitor or have the capacity to monitor the social media of ordinary Fijians with no history of political involvement. In these circumstances and in light of the information from DFAT set out above regarding the ability of Fijians to discuss political issues more freely than in the past and their assessment that it is leaders and activists who generally of interest to the authorities, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm on return to Fiji because she had posted some political articles on [social media] in the past.
Finally, I have considered the applicant’s claims regarding political opinion cumulatively. I accept that the applicant does not support the current government. However, I do not accept that she had any involvement in political activities prior to her departure from Fiji. I accept that she joined [Organisation 1] and attended a few meetings of the group in 2016. I also accept that she may have posted some articles which were critical of the Fijian government in 2015 or 2016. However, according to the evidence provided during the hearing, she has had no involvement in political activities of any kind for at least a year. In these circumstances I am not satisfied that she faces a real chance of experiencing serious harm for reasons of political opinion if she returned to Fiji now or in the reasonably foreseeable future.
In assessing the applicant’s claims regarding her political involvement I have considered the letters from [Mr C] and [Mr D]. I have serious doubts about the genuineness of both letters as I have some difficulty accepting that either of them would have written in support of the applicant’s claim for protection without knowing her or having any first-hand knowledge of her circumstances. I also find it unlikely that [Mr C] would have claimed that her life was at risk in Fiji as a result of her limited involvement in politics as this is completely at odds with all information I have seen regarding the human rights situation in Fiji. However, even if I accept that the letters are genuine neither of them knows the applicant personally and they have based their assessment of her situation on information which I have found to be false or exaggerated. I have given them no weight.

Problems relating to the applicant’s status as an adopted child

The applicant claims that she was stigmatised, abused and denied rights because she was born out of wedlock and adopted by her step-father and because she was not native to or registered in her step-father’s village. She claims that this occurred or was exacerbated by the fact that her step-father was [a senior position] of his village. For the reasons set out below I do not accept these claims.
The applicant first made this claim in a written submission dated [in] May 2015. During her interview with the delegate she said that her stepfather loved her and had not ill-treated her, but other members of the community clashed with her and she was not allowed to participate fully in the local community. At the hearing she claimed that she had experienced problems with people close to her stepfather and to some degree with her step-father himself, but said that these problems related mainly to the rumours about her which began in 2007. According to written submissions provided following the hearing she had problems with her step-father and brothers for a range of reasons including the fact that she was adopted. The submission also suggests that her step-father did not prevent her mother from providing her with assistance when she had mental health issues not out of a desire to be supportive, but because he thought that the problems were demonic and this could affect his reputation.
I found the applicant’s evidence regarding problems relating to the circumstances of her birth and the fact that she was not a native of her step-father’s village confused, contradictory and completely unconvincing. She failed to provide a coherent detailed account of the problems she faced because of her status as an adopted or stepchild. She stated at different times that her step-father loved and supported her, but also claimed that he rejected and might harm her. Furthermore, this claim does not sit well with her ability to obtain a good education and employment. I also note that advice from DFAT indicates that it is not uncommon for children of unwed mothers in Fiji to be registered under the care of the mother and that informal adoptions in which children are supported by family members other than their parents or extended family members or friends are relatively common in Fiji. There is no suggestion in the DFAT report that such children are rejected or viewed as second class citizens because of this and I am unaware of any evidence which suggests that children born out of wedlock or children raised by a step-parent or people who reside in an area other than their traditional area face discrimination or any form of harm for these reasons.
I do not accept that the applicant faced serious or significant harm prior to her departure from Fiji because her father was not mentioned on her birth certificate, or because she was informally adopted by her step-father or because she was not a native of her step-father’s village. I find this to be another example of the applicant concocting claims to support her application for protection. I do not accept that there is a real chance that she will experience serious or significant harm if she returns to Fiji for any or all of these reasons.
Claims relating to domestic violence
The applicant claims that her husband was frequently violent towards her prior to her departure from Fiji and that she fears he will harm her if she returns to her homeland. For the following reasons I do not accept this claim.
In the first place, the applicant has demonstrated a willingness to concoct claims in support of her application for protection and her failure to include any mention of violence by her husband prior to her interview with the delegate casts doubt on the veracity of these claims.
Secondly, the evidence she has provided regarding her relationship with her husband prior to departure from Fiji was confused and contradictory. During her interview with the delegate she said that her husband had hit her when she was suffering from mental health issues, but said nothing which suggested he had been violent towards her prior to that time or that she feared he would harm her if she returned to Fiji. In the statement dated [in] July 2015 she claimed that her husband had verbally abused her from early 2013 and linked this to the rumours regarding the STI and her anti-government views. She claimed that he had punched her twice while she was mentally unwell. There is no suggestion in the statement that he was abusive towards her before 2013 or that he was physically violent towards more than twice. At the hearing she said that her husband had been violent towards her since about 2010 and after some discussion confirmed that he had abused her physically on two occasions. She later changed this evidence and claimed that he had abused her throughout her marriage. This claim was repeated in written submissions provided following the hearing.
The applicant sought to explain her differing evidence at the hearing regarding when and how often her husband was violent towards her by claiming that she had been confused about the period under discussion when she said that he had only hit her twice. I have reviewed the recording of this discussion and I do not accept this explanation. I believe that the applicant understood the questions she was asked and that she later attempted to change her evidence so that it would accord with the information in the letter provided by her GP. I note that her earlier evidence also indicated that she had not experienced abuse throughout her marriage and that her husband had only hit her on two occasions.
Thirdly, the applicant has provided differing accounts of her recent interactions with her husband since she arrived in Australia. At the beginning of the hearing she said that she had asked him for a divorce about three months earlier, but said nothing about receiving threats from him then or at any time after she arrived in Australia. In post hearing submissions she claimed that she had first asked him for a divorce in November 2016 and that he had responded by threatening to come to Australia and hunt her down. If the applicant’s husband had made serious threats of this kind at any time after she arrived in Australia I believe she would have mentioned this in her submissions to the Department or when her recent contact with her husband was discussed during the hearing. I do not accept that the applicant’s husband has threatened her since she arrived in Australia.
Fourth and finally, I have difficulty reconciling the applicant’s claim that her husband was abusive towards her partly because he was angry about the gossip regarding the fact that she had contracted an STI, with her evidence at the hearing that he was aware of the rumours and aware that his wife had slept with the man in 2007 but he was not violent towards her until about three years later.
I do not accept that the applicant’s husband was violent towards her throughout their marriage. I find that she has concocted or at least greatly exaggerated the claim that she is a victim of domestic violence in Fiji. Furthermore, even if I accept that her husband was sometimes verbally abusive and hit her on about two occasions, they are now divorced and there is nothing in the evidence before me which suggests he would seek to harm her if she returned to Fiji.
In assessing this claim I have considered the statement provided the applicant’s cousin which states that she has observed the applicant’s husband being violent towards her in Fiji. However, it lacks detail and contains claims which, for the reasons set out above, I have found to be concocted or exaggerated. I have given it little weight.
After considering all of the relevant evidence, I am not satisfied that there is a real chance that the applicant will face serious or significant harm from her husband if she returned to Fiji now or in the reasonably foreseeable future.

Rumours regarding the contracting a sexually transmitted disease

The applicant claims that she has been the subject of gossip since a man she slept with once in 2007 claimed that she had contracted [Disease 1]. For the following reasons I do not accept that this claim.
In the first place, as discussed above and below, I found much of the applicant’s evidence to be lacking in credibility and her willingness to provide false evidence in relation to other claims also casts doubt on this claim.
Secondly, the applicant did not mention problems relating to this gossip until after she was interviewed by the delegate. While I acknowledge that the applicant may have felt reluctant to discuss this kind of information in the presence of a male interpreter, as noted above she had ample opportunity to provide the evidence in writing prior to the interview and her failure to do so casts doubt on the veracity of this claim.
Thirdly, I find the claim that these rumours spread and persisted to the extent she was unable to take public transport or to go to places where people gathered in [Location 1] some seven years after the rumour first started to be far-fetched and implausible.
Fourth, I have difficulty reconciling the claim that the rumour was known by everyone and her life was so severely impacted that she could scarcely venture out with the evidence that she had a successful [career] until early 2013.
Fifth and finally, she failed to provide a coherent and convincing account of the problems which she experienced as a result of this gossip. She claimed that her husband was violent towards her in part because of the rumours, but also claimed that he had been violent throughout their marriage and that he was only physically violent towards her when she was suffering from mental health issues. As discussed above I found much of her evidence regarding domestic violence lacked credibility. She claimed that she faced problems with people in her village because of the gossip, but provided no specific examples of the harm she suffered. As discussed above she first attributed the problems she faced in her village to issues related to her political opinion, her birth and place of origin, but later claimed that they were at least partly caused by the rumours. She also claimed that her family had rejected her and abused her because of the gossip. The only specific example of harm from her family was the claim that one of her brothers had assaulted her in 2013. As noted above, she previously claimed that he hit her for expressing political views and only later added that it was also linked to the rumours. While it is possible to be rejected or harmed for more than one reason, I believe that the applicant would have mentioned that one of the reasons she was rejected by other villagers and assaulted by her brother was that there were rumours that she was suffering from an STI when this claims were first made if these claims were true.
After considering all of the relevant evidence, I am not satisfied that the applicant was the victim of gossip which began in 2007 and lasted until her departure from Fiji in 2014 and which caused her to be rejected and assaulted by family members and stigmatised by society at large and to suffer a mental breakdown.
Status as a woman and/or a divorced woman
It had been submitted that the applicant would be at risk of serious harm if she returned to Fiji because she is a woman and because of her status as a divorced woman. I do not accept these claims.
By way of context, women’s rights to equality and freedom are protected in the 2013 Constitution and in legislation and according to DFAT there is little official discrimination against women in law and official policy. DFAT also note that Fijian society sees the role of women as being traditional and that there are high levels of physical and sexual violence against women. This generally takes the form of domestic violence by their partner, but there are also relatively high levels of physical and / or sexual abuse by a non-partner. Young women and those living in poverty are most at risk of suffering such harm. While the law provides protection in cases of abuse, many women do not report abuse and the protections are often inadequate to provide protection to women at risk of violence. Overall, DFAT assesses women are at a low risk of official discrimination and a moderate risk of societal discrimination and violence.
In the applicant’s case, she is well educated and had a good job and there is no credible evidence before me which suggests that she faced serious discrimination prior to her departure from Fiji because she is a woman or that she has a real chance of facing serious discrimination on return to Fiji because she is a woman.
I am unaware of any evidence which suggests that divorced women in Fiji are stigmatised or viewed as deserving of ill treatment or face a high risk of being victims of sexual assault because they are divorced and I do not accept that the applicant faces a real chance of suffering serious or significant harm on return to Fiji because she is divorced.
In considering the problems related to the applicant’s status as a woman or a divorced woman accused of suffering from an STD I have considered the claim that the applicant’s step-father would be unable to provide protection from other people in the village if they wished to harm her because in the current political climate he would be required to honour his role as village leader. No independent evidence was provided in support of this claim and I am unaware of any evidence which suggests that it is part of the role of a village [senior position] to allow his daughter, adopted or otherwise, or for that matter any woman, to be abused or harmed by others in the village or that the current political climate would prevent the applicant’s step-father from protecting her. I do not accept this claim.
The issue of domestic violence is addressed above.
After considering all of the relevant evidence I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm because of her status as a woman or a divorced woman if she returns to Fiji now or in the reasonably foreseeable future.

Indigenous Fijians

While the applicant has not explicitly claimed that she fears harm because of her ethnicity, she has indicated that she believes that indigenous Fijians face discrimination in Fiji. I have therefore considered whether she is at risk of harm if she returns to Fiji because of her ethnicity.
By way of context, DFAT characterises recent changes to land rights and other legislation as examples of the government’s gradual limitation of previous systems of positive discrimination towards indigenous Fijians. Overall DFAT assesses that, while indigenous Fijians may face a low level of societal discrimination in some areas of the economy, they do not face official discrimination.
In the applicant’s case she is well educated and held a good [job] and there is nothing in the evidence before me which suggests that she has faced problems of any kind in the past because of her ethnicity or that she faces a real chance of suffering serious or significant harm on return to Fiji because she is indigenous.

Mental health issues

The applicant claims that she suffered from depression and other mental health issues including [symptom] prior to leaving Fiji and [another symptom] in 2013. She claims that she was abused by family members and taunted and verbally abused by other people in the community because of this.
There are a number of inconsistencies in the evidence which the applicant has provided regarding her mental health problems in Fiji. For example, during her interview with the delegate she claimed she had taken leave from work because she was depressed and indicated she had lost her job because she was mentally unwell, but also claimed that she had lost her job for political reasons. In her statement dated [in] July 2015 she claimed that she had been sent on leave because she had been accused of insubordination. She told the delegate that she had gone to live with her parents in early 2014 because she was [suffering symptoms] and thought she was going insane; they were the only ones supporting her. She told me at the hearing that she lived with her husband until she left Fiji for Australia in November 2014, and only visited her parents on the weekend. She also stated that her parents were not aware of her illness until her health had improved.
In these circumstances and in light of my findings regarding the applicant’s overall credibility I have some concerns regarding the genuineness of these claims. Nevertheless, for the purpose of this decision I accept that she had a breakdown of some kind in 2013 and suffered significant mental health issues until early 2014. However, I do not accept that this means she is at risk of serious or significant harm because of this now or in the reasonably foreseeable future.
Mental health issues may be relevant to a claim for protection if there is evidence that the applicant in question has been denied care which is available to others for a Convention reason or if they are at risk of being subjected to serious or significant harm because of their condition.
In the applicant’s case there is no suggestion that she was denied care available to others for any reason or that she would be denied care available to others in Fiji for any reason if she returns to her homeland now or in the reasonably foreseeable future.
The confused nature of the applicant’s evidence and the fact that she has attributed a number of her claimed problems to multiple causes makes it difficult to assess the nature and extent of the problems she faced as a result of mental illness. It appears that her husband may have hit her once or twice out of frustration or anger or in the mistaken belief that this would be helpful. She has also claimed that her brothers abused her when she was mentally ill although there is no suggestion that this involved physical violence. It also appears that she may have been taunted by local people in [Location 1] and in her home village, although it is not clear how often this occurred or how serious it was. On the other hand, according to her evidence she received care and support from her parents, a cousin and the church. On the evidence currently before me I am not satisfied that the applicant suffered serious or significant harm in Fiji because she was mentally ill.
In considering the level of the support which the applicant received while ill in Fiji I have noted the recent claim that her step-father did not wish to support her but merely refrained from preventing her mother from doing so because he believed her condition was caused by demons. However, this is at odds with the applicant’s earlier evidence regarding her relationship with her parents and I do not accept it.
In any event, as discussed above, the applicant had substantially recovered from her illness prior to her arrival in Australia and, while I accept that she may have suffered from PTSD, anxiety and depression at times after arriving in Australia, there is no credible evidence before me which suggests that she has experienced a breakdown [and symptoms] or was unable to cope with daily life because of mental health issues since arriving in Australia. She began work as a carer in February 2015 and in about mid-2016 established a business which she continues to operate and has described as successful. She has also established a new relationship with a man who she states knows everything about her and is committed and supportive. She stopped attending counselling with [Organisation 2] in August 2016 after 6 sessions because she was coping well and despite being advised to return if she needed further help did not seek further assistance.
There is no medical evidence before me which suggest that the applicant is currently mentally unwell or that she is likely to become mentally ill if she returns to Fiji. After considering all of the relevant evidence, I am not satisfied that there is a real chance that she will suffer from serious mental health issues and face serious or significant harm because of this if she returns to Fiji now or in the reasonably foreseeable future.

Does the applicant meet the refugee criteria?

After considering the applicant’s claims singly and cumulatively and taking account of all the relevant evidence, I am not satisfied that there is a real chance that she will suffer serious harm amounting to persecution in the reasonably foreseeable future for any of the reasons set out in s.5J(1). I therefore do not accept that she has a well-founded fear of persecution for any of the reasons in s.5J(1).

Does the applicant meet the complementary protection criteria?

After considering the applicant’s claims singly and cumulatively and taking account of all the relevant evidence, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Fiji, there is a real risk that she will suffer significant harm

CONCLUSION

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

Roslyn Smidt
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country, in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2367

11 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction