1514543 (Refugee)

1514543 (Refugee) [2018] AATA 920 (16 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514543
COUNTRY OF REFERENCE:                  Fiji
MEMBER:K. Chapman
DATE:16 March 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 March 2018 at 1:20pm
CATCHWORDS
Refugee – Protection Visa – Fiji – Particular social group – Homosexual – Fear of societal discrimination and harm – Previous adverse incidents – Country information does not support applicant’s claims - Witness credibility – Vague and inconsistent evidence
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).
The [applicant], who claims to be a citizen of Fiji, applied for the visa [in] June 2015. His written claims for protection concern him fearing harm in Fiji due to his homosexuality. The delegate refused to grant the visa on the basis that there was not a real chance that he would face serious or significant harm if he returned to Fiji.
On 27 October 2015, the applicant applied for review of the visa refusal decision. He subsequently provided a copy of that decision to the Tribunal. The applicant appeared before the Tribunal on 1 September 2017 and 19 December 2017 to give evidence and present arguments. The applicant gave his evidence in English during both hearings and the Tribunal observed him to have a strong command of the English language. The applicant was represented by his [relative, [Mr A], during both hearings. The Tribunal notes that the representative requested an adjournment of the first review hearing (which had already been rescheduled to accommodate his attendance) as he was newly appointed. The Tribunal noted that the applicant had travelled from [a distant location] to attend the hearing and his review application was lodged quite some time prior to the first review hearing. The Tribunal allowed the applicant to confer with his representative and ultimately he was agreeable to continuing with the review hearing. The Tribunal indicated that time for post hearing submissions would be provided if required. The applicant also agreed to have his representative wait outside of the hearing room whilst giving his evidence so that the representative could also provide oral evidence in the first review hearing.
The Tribunal afforded the applicant further time after the review hearings to submit material in support of his case. Following several extensions of time after the first review hearing, the Tribunal received material on 13 and 14 November 2017. The Tribunal also received a written submission on 21 December 2017 after the second review hearing. All such material has been duly considered by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
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.
Mandatory considerations
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Fiji. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Fijian national. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Fiji, there is a real risk he will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:
a.an invalid protection visa application lodged [in] May 2015;
b.the applicant’s protection visa application forms lodged [in] June 2015 (including a copy of his Fijian passport);
c.the Departmental delegate’s visa refusal decision dated [in] October 2015 (a copy of which was provided to the Tribunal by the applicant);
d.the application for review submitted on 27 October 2015;
e.Departmental administrative and Movement records;
f.a copy of the applicant’s current Fijian passport received at the review hearing;
g.material received on 13 November 2017 being a letter from [Ms B] dated [in] September 2017, letter from [Mr C] dated [in] September 2017, unsigned and undated Statutory Declaration of the applicant, and an undated written submission from the applicant’s representative;
h.material received on 14 November 2017 being a letter from [Ms D] dated [in] October 2017, letter from [Ms E] dated [in] October 2017, and envelopes; and
i.an undated written submission from the applicant’s representative received on 21 December 2017.
Claims for protection
The applicant’s written claims for protection are as follows:
a.he left Fiji because, “…of the constant assault, harassment, bullying tactics, torment, name calling and the ongoing persecution that I have to go to through every day because of my sexual orientation. I suffered this every day of my life in Fiji, unless I am sleeping in my locked room”;
b.he thinks the following will happen to him if he returns to Fiji, “I fear that the ongoing assault, assault (sic) and persecution will continue if I return. Fiji as a society does not condone being gay. As an Indigenous Fijian, it is worse. 98 percent of all Indigenous Fijian are Christian and being Christian everyone says that being gay is sin and everyone else believes it and uses that knowledge to justify persecution of gay people like me. The worrying thing is that to persecute gay people is considered acceptable in the Christian beliefs because the persecutors are seen as been strong in their faith in Christ”;
c.he experienced the following harm in Fiji, “…I have been punched, abused, spat at, pushed, shoved and kicked because of my sexuality. And this has been done by military and police personnel, my family and close relatives and everyone else in the heterosexual world”;
d.he sought help from “…the Church that I’m a member of, but they seems to ignore it”;
e.he did not move or try to move to another part of Fiji to seek safety as, “I have fear that the experience will be the same”;
f.he thinks he will be harmed or mistreated if he returns to Fiji as, “I have experienced it while in Fiji. I have suffered persecution and numerous acts of hatred, bullying and sexual vilification because of my sexuality. I have been condemned, abused and assaulted and I know for a fact that this is going to return. I can no longer take the sufferings that I have been subjected to in the past. It is difficult because every time I try to lodge a complaint with the police, they will just look at me and laugh and start yelling out abusive languages”;
g.he does not think the authorities of Fiji can and will protect him if he returns indicating, “Unfortunately No. The military and police force are the two authorities that ordinaries people like me rely on for our protection. These two authorities however, are the very ones that is orchestrating harm, assault, abuse, bullying tactics, denigrating behaviour to the gay community in Fiji; and
h.he cannot relocate within Fiji, “As I have mentioned 98 percent of Fijians are Christians and the fear that they share the same views on people like me.”
Evidence at the first review hearing
The applicant’s oral evidence may be summarised as follows. He informed the Tribunal that he completed the protection visa application by himself, all of his claims for protection were contained in that application, he signed the application, he understood all of his claims for protection and his written claims for protection were accurate. The applicant outlined that he completed [a particular course] at [Town 1] in Fiji and obtained [a qualification]. This study was funded by his father who is a [particular occupation] in a [company]. Following his studies the applicant worked in [a particular area] for [Workplace 1] before going to look after his sick mother. The applicant is in regular contact with his father and two sisters who remain living in Fiji. The applicant is ‘not really religious’ and his family members are ‘50/50’ in terms of following religion. The applicant’s father continues to work in [his particular field], one sister is [a particular occupation] and the other works in [another occupation].
The applicant has not been found guilty of any offences and has no charges pending. He confirmed that his earlier Fijian passport was issued in Fiji in 2006 and his current passport was issued in Australia without any problems. The applicant has only ever travelled to Australia from his home country. He agreed, as reflected in the Departmental delegate’s decision, that he first arrived in Australia [in] December 2006 holding a tourist visa then returned to Fiji in January 2007, before returning to Australia again [in] April 2015. The applicant confirmed he departed Fiji legally using his own passport on both of these trips to Australia. He has worked as [a particular occupation] in [an Australian town] since coming to Australia most recently and hopes to continue his [previous] career in the future.
When asked by the Tribunal what he feared if he had to return to Fiji, the applicant responded that he fears ongoing assault, harassment, physical and mental abuse because of his status. He added that he is not accepted and that being gay is not widely appreciated in Fiji. The applicant also indicated he would be harassed in public. He outlined that he was bullied in his later years of high school and was also bullied during [his course] at [Town 1]. The applicant advised he was physically and verbally abused. Police Officers apparently punched him [at a particular location], and he was also abused by other men. He was known as a gay [individual] and accordingly the public overlooked his qualifications. He was verbally abused and held back from his full potential. The applicant confirmed his claims for protection concerned only his homosexuality and no other topic.
The applicant advised during his first year in [Town 1] in 2008 he was hit [in Location 1] whilst drinking with a gay partner. A Police Officer apparently recognised the [applicant] and asked why he was making noise before punching once him [and] then slapping him in the face. The applicant did not know the Police Officer. The applicant was not wearing his [work clothes] and said the Police Officer knew him from being posted on the road to [Workplace 1]. He stated one Police Officer remained in the truck while the assault took place. The applicant confirmed his partner was named [Mr F] whom he met in [school]. [Mr F] was [a particular occupation] in their home town of [Town 2]. They were in a relationship between 2006 and 2013, with them living together for periods at [a place] near [Town 1]. [Mr F] is [older] than the applicant. They initially ceased contact when the applicant came to Australia as an adult, however resumed contact in 2016 and now speak by telephone every week. [Mr F] remains living in [Town 1] and working as [a particular occupation]. The applicant added that [Mr F] was also slapped at [Location 1], they were both threatened for being gay partners and no medical attention was sought after the incident. The Tribunal observed the applicant’s oral evidence concerning the alleged incident in 2008 to be delivered in a vague and unconvincing manner.
The applicant advised that he remained in a relationship with [Mr F] after [he completed his qualification] and in late 2014 he returned to [Town 2] to look after his mother who was ill with [a particular medical condition]. [Mr F] visited the applicant in [Town 2] on several occasions. The applicant’s mother and father knew about [Mr F], as did his two sisters. The applicant stated that it was initially hard for his parents at first but they ‘eventually agreed’. The applicant told his mother he was gay during his first year of [his course]. She told his father in 2009 and initially he did not accept the situation. The applicant’s mother unfortunately passed away due to the [medical condition].
When asked by the Tribunal if he was ever harmed on any other occasions, the applicant outlined that he was with gay friends in [Location 2] in [Town 1] when he was hit in the jaw by another man in 2012. [Mr F] was also present. The friends used to see each other [at Location 2] on weekends and it was not a specifically gay bar as these don’t exist. In villages gay people are apparently not popular and whilst there are more gay people in [Town 1] they are still not tolerated. Following the alleged assault the group of friends departed. No medical attention was sought. The applicant also advised he was hit in 2014 in his home village by a man named [Mr G] who labelled him an embarrassment to his family and a sinner against Christianity. The applicant further indicated he was verbally abused and in fear on numerous other occasions on buses, in cars, whilst walking on the road and in markets and towns. Boys playing football would call him names. The Tribunal observed the applicant’s oral evidence concerning the alleged incidents in 2012 and 2014, and general verbal abuse, to be delivered in a vague and unconvincing manner.
The applicant explained that he realised he was gay at a very young age. He did not like football and preferred to be friends with girls. He was shy at first but couldn’t hold back as his body and soul were telling him he is gay. The applicant believed homosexuality to be normal and whilst he thought generally Christianity was important, it considered homosexuality a sin. He was taught it was a sin but he did not believe this to be the case. The applicant confirmed he is not a religious person. The applicant knew of a lot of gay people in Fiji but had five main gay persons in his friendship group (who were at [Location 2] with him in 2012). The applicant stood out [due to his qualification] and on the way to being successful. He reiterated that people overlooked his qualifications on account of his sexuality. The applicant was verbally taunted by his Fijian [teachers] but [a number of teachers] came from [another country] in 2013 and were good to him. As there were no other gay [students] the applicant did not feel welcome among his classmates. The applicant advised he was not looking forward to working in Fiji after [his course], that he worked in [a particular area] after becoming qualified and in due course he had to go and attend to his ill mother.
The applicant advised he had two sexual partners in Fiji. He had a short relationship with [an individual] and also had the more long standing relationship with [Mr F]. The applicant has not had female partners but has several female friends who know he is gay. He remains in contact with his gay friends in Fiji. The applicant did not advise his sexuality to those in authority in Fiji as they could not be trusted, even if they were a Doctor.
When asked by the Tribunal if he had advised his family members of his sexuality, the applicant responded that he told his mother, father and two sisters as previously advised. At first their reaction was poor but he ‘convinced them’. The applicant described his aforementioned family members as the ones with whom he can ‘seek refuge’. He did not tell other family members in Fiji. The applicant has [relatives] in Australia who do not know he is gay. His [relative] and representative, [Mr A], lives in [a particular Australian city] and the applicant informed him he is gay a few days prior to the first review hearing. [Mr A] is fine with this knowledge. The applicant does not have family residing in [the location in Australia] where he currently lives.

The applicant advised that gay people in Fiji socialise in hired places, nightclubs and at the beach. There are no specific gay clubs. A few gay people in Fiji are open with their sexuality, however many are secret. The applicant heard of a gay support group which was setting up just before he left Fiji. He indicated there is no location in Fiji where it is friendly for gay people. He did not know of the official laws concerning homosexuality in Fiji but advised gays are not accepted in that country as it is predominantly Christian. The applicant indicated he had no good experiences in Fiji as a homosexual. He has met one gay man in [Australia], who originates from Fiji. They are friends together in [an Australian town] and remain in regular contact. The applicant has not been in any gay relationships in Australia. He has experienced no problems in Australia on account of his sexuality. He socialises in ordinary pubs as there are no gay clubs where he [resides]. The applicant was unsure of the legal status of gay people in Australia but knew of the efforts (at that time) to introduce gay marriage.
When asked by the Tribunal how he discovered it might be possible to claim protection as a gay man from Fiji, he responded that he did his research and spoke with his father. His sister ultimately convinced him to seek protection in Australia. The applicant stated that in Fiji he had only his father and two sisters with no others who would support him. The applicant decided to depart Fiji and apply for protection in Australia. His father paid for his travel. The applicant felt abandonment after his mother passed away in 2015 and he decided it was time for him to depart Fiji. The applicant does not know of any other gay man receiving protection in Australia. He explained that he did not seek protection in Australia when he visited in late 2006 as he was too young to be on his own and was with his mother at the time.
When asked by the Tribunal why, as reflected in the Departmental delegate’s decision, he waited over one month from being granted a Visitor visa in March 2015 to travelling to Australia in April 2015, the applicant responded that he wanted to say goodbye to his father and waited for him to return from [work]. When asked by the Tribunal why he waited over one month following arrival in Australia [in] April 2015 to apply for protection, the applicant replied that he was doing his research and had a valid visa so there was no rush. He conducted internet research and had no professional advisor. The applicant met a lot of people with protection visas at work after he applied for the visa himself. The Tribunal raised with the applicant that the delays in his most recent departure from Fiji and also in claiming protection following his arrival in Australia might suggest his protection claims are not genuine, inviting his comment. The applicant responded that he was waiting for his father to return from [work] and he was in a ‘safe haven’ at his house and was ‘only discriminated outside of home’. He wanted to have a proper farewell before he left Fiji. Once in Australia he applied for protection on his own, had to complete research and was not really sure how to go about it.
The Tribunal raised with the applicant that he advised of being hit by a Police Officer in 2008 at [Location 1], being hit by a man in [Location 2] in 2012 and also being hit in 2014 in [Town 2] by [Mr G]. He confirmed this was correct. The Tribunal asked if he was ever hit another time and he replied that his [relatives] punched him in early 2015 in his home village, not long after his mother was buried. When asked by the Tribunal why he had not mentioned this earlier, the applicant replied that he made up his mind to go overseas following that incident. The Tribunal asked again why he did not mention this earlier and the applicant indicated he could not provide a reason. The Tribunal indicated it might have some difficulty accepting this claim because he did not advise it earlier, inviting his comment. The applicant replied that he didn’t want to recall the incident due to the emotions regarding his mother who was the only one there for him from the start. When asked by the Tribunal if he was ever harmed by the Fijian authorities on any other occasion, the applicant replied he was not and confirmed that response.
The Tribunal drew the applicant’s attention to his answer to question 92 in his protection visa application where he referred to being harmed by police and military personnel in Fiji and asked him why he did not refer to the military in his oral evidence. He replied that in 2007 the police and military joined forces after the coup. The Tribunal indicated to the applicant that it might have difficulty accepting the genuineness of his written claims regarding the military given he did not mention the military earlier. The applicant advised that in 2008 at [Location 1] there was one military person and one Police Officer. The Tribunal raised with the applicant that he had earlier advised the incident at [Location 1] involved two Police Officers and now he was advising there was one military person in the vehicle rather than a Police Officer. The applicant then vaguely suggested there was a military person in the vehicle. The Tribunal drew this apparent inconsistency to the applicant’s attention and that this might cause difficulty for the Tribunal in accepting his claims. The applicant responded that he wrote down the military in his written claims because the Government was controlled by the military at the time. The Tribunal noted that it appeared there was inconsistency in the applicant’s claims regarding the police and military, and he made delayed claims with respect to the 2012, 2014 and 2015 alleged assaults.
The Tribunal drew to the applicant’s attention that he claimed he was assaulted by the Police Officer in 2008 (noting the inconsistency in his account referred to previously), and also faced assaults in 2012, 2014 and 2015. Further, he claimed he faced discrimination in Fiji. The Tribunal also drew his attention to his history of being able to study between 2008 and 2013 and also being able to remain living in Fiji until mid-2015. The Tribunal indicated the aforementioned history might tend to suggest that there is not a real chance that he will face serious harm, nor a real risk that he will face significant harm, if he returned to Fiji and invited his comment. The applicant responded that he went through it every day and that the ‘only safe haven was his family’. He outlined that his father supported him through his [studies] and at a critical point, following his mother’s passing, he ‘couldn’t take it any more’ and departed the country. When asked by the Tribunal why he could not return to live in his ‘safe haven’, the applicant replied that he must work outside of the family home. He added that the public and the Church did not agree with his status.
The Tribunal asked the applicant why he didn’t previously specify the alleged incidents of 2008, 2012, 2014 and 2015 in his written application for protection. He responded that he just wanted to advise of them in one interview. The Tribunal raised with the applicant that the delay in raising these specific claims (concerning 2012 to 2015) until the review hearing and not placing them all in his written protection visa application might cause it some difficulty in accepting them, inviting his comment. The applicant replied that he was targeted because he was [an individual with a particular qualification] and didn’t place everything in his written claims. The Tribunal drew to his attention that the instructions for the protection visa application indicate the applicant must include all claims and by not doing so it might cause the Tribunal difficulty in accepting his claims. The applicant responded that he was alone and had no legal advice so he wrote his application and wanted to explain at interview.
When asked by the Tribunal if he ever reported any incidents to the police, the applicant replied that he only reported the 2012 incident at [Location 2] but the police suggested it was a fight and he should ‘take it like a man’. The Tribunal read from page 10 of the Departmental delegate’s decision regarding the applicant being allegedly verbally abused in 2007 then reporting it to the authorities. The applicant advised he went to the [police] and complained. The Tribunal raised with the applicant that it might have difficulty accepting this claim as it was not previously mentioned in oral evidence. The applicant responded that he remembered the incident well and it was only verbal abuse. The Tribunal raised with the applicant that the Departmental delegate’s decision does not reflect the alleged incidents of 2012, 2014 and 2015 and this might cause the Tribunal some difficulty in accepting these claims. The applicant replied that he had nothing to say.
The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT)[1] with the applicant, concerning sexual orientation and gender identity, which indicates the Constitution prohibits discrimination on the basis of sexual orientation and gender identity or expression, a law criminalising homosexuality was repealed in 2010, and whilst there are some reports of discrimination overall DFAT assesses that LGBTI Fijians and those of a heterodox gender identity are at a low risk of official discrimination and a moderate risk of societal discrimination. The Tribunal indicated this country information does not tend to support his claims that he will face harm if he returned to Fiji, inviting his comment. The applicant replied that the information does not reflect the beliefs of the Fijian people who harass and harm gay people in spite of the Government institutions.
[1] Paragraphs 3.106, 3.107, 3.109, 3.110 & 3.111 - DFAT Country Report Fiji of 14 April 2015.
The Tribunal raised country information from DFAT[2] with the applicant, concerning State Protection, which indicated the Fijian authorities would not adversely target persons with a low political profile and were generally capable of providing protection to the general population, and this did not tend to support his claims of harm concerning being homosexual. The applicant responded that as [a qualified individual] trying to work his way up the authorities could not protect him in the past and they won’t be able to protect him in the future. The Tribunal raised with the applicant that he did not link being a [qualified individual] to his fears of harm in his written application for protection, or before the Departmental delegate, and only raised them at the review hearing and therefore this might cause some difficulty for it in accepting the claim. The applicant replied that he wanted to tell everything at the interview.
[2] Paragraphs 5.4, 5.9, 5.15 & 5.23 - DFAT Country Report Fiji of 14 April 2015.
The Tribunal raised country information from DFAT[3] with the applicant, concerning ‘torture, cruel, inhuman or degrading treatment of punishment’, which indicated there were low risks of such harm for those who have not been critical of the Fijian Government or security services and this did not tend to support his claims of harm concerning being homosexual. The applicant replied that the police did not help him in the past and laid their hands on him once. He has no other refuge and he cannot go to the authorities in the future because they haven’t helped him in the past.
[3] Paragraphs 4.6 & 4.12 - DFAT Country Report Fiji of 14 April 2015.
The Tribunal raised country information from DFAT[4] with the applicant, concerning internal relocation, which indicated he could relocate to areas of Fiji that are more gay friendly such as Suva. Further, the applicant is educated and relocated for study when living in Fiji. The applicant replied that in the workforce there is discrimination because the whole of Fiji is a Christian country. He added that everywhere gay people were harassed and not accepted by the wider community.
[4] Paragraphs 5.28, 5.31 & 5.32 - DFAT Country Report Fiji of 14 April 2015.
The Tribunal raised country information from DFAT[5] with the applicant, concerning exit and entry procedures, which indicated it is unlikely he would be of interest to the Fijian authorities given he was allowed to exit and re-enter the country in connection with his travel to Australia. The applicant replied that he could go back and ‘come and go’ but could not return to live amongst people who dislike gays and he has a fear on that basis.
[5] Paragraph 5.40 - DFAT Country Report Fiji of 14 April 2015.
The Tribunal took oral evidence from the applicant’s [relative] and representative, [Mr A], which may be summarised as follows. He indicated homosexuality generally wasn’t accepted in Fiji due to the majority of the population having their views shaped by Christianity. He used to think similarly but changed his opinion. [Mr A] learned the applicant was gay around 2013 or 2014 when his sister (the applicant’s mother) told him because she was concerned for him. [Mr A] advised there is discrimination in the workplace and the Bainimarama Government was opposed to gay marriage. [Mr A] did not live with the applicant in Fiji but the applicant’s mother told him the applicant was abused in Fiji by his own relatives. She did not mention any names. [Mr A] confirmed that he heard from the applicant’s mother that other family members had ‘pushed’ the applicant and called him names, but that was all he had heard. [Mr A] confirmed he did not have further knowledge of specific instances of harm other than what was relayed to him by the applicant’s mother. The Tribunal raised with the applicant that due to [Mr A]’s limited knowledge of specific incidents of harm it might place lower weight upon his evidence, inviting his comment. The applicant replied that ‘it would be fair’. He added that he was thankful his mother told [Mr A] of his homosexuality and he thought [Mr A] only knew of this shortly before the hearing when he told him.
The Tribunal raised with the applicant that, whilst it had not made up its mind, it had the following concerns with his claims for protection. In oral evidence he raised specific incidents of physical harm in 2008, 2012, 2014 and 2015, additionally making links with being a gay man and also a well known person who was training to be, and subsequently became, [a particular profession]. The applicant did not raise the aforementioned incidents specifically in his written application for protection and did not appear to have raised the 2012, 2014 and 2015 incidents with the Departmental delegate. Additionally, the applicant delayed raising the 2015 incident at the first review hearing. Further, the applicant provided inconsistent evidence regarding whether it was just the police, or the police and the military, who were involved in the 2008 incident. The Tribunal also noted the DFAT country information refers to the police and military as separate bodies. The applicant replied that when Bainimarama took over the soldiers became involved in arrests and interrogations. The Tribunal drew the applicant’s attention to the apparent inconsistencies in his written claims, those put before the Departmental delegate and those raised in oral evidence at the review hearing.
The Tribunal raised with the applicant that even if his claims were accepted concerning being harmed in 2008, 2012, 2014 and 2015, in addition to facing discrimination, he was able to study between 2008 and 2013 and remained living in Fiji until 2015. He did not refer to requiring medical treatment with respect to the aforementioned incidents. This tended to suggest there is not a real chance that he will face serious harm, or a real risk that he will suffer significant harm, if he returns to Fiji. The applicant responded that he was physically abused all of the time and kept it to himself. He added that he could not seek medical attention as it was embarrassing to do so. The applicant agreed that his injuries were not so severe as to require medical treatment.
The Tribunal raised with the applicant that he waited over one month following the grant of a Tourist visa in 2015 to depart Fiji and also waited over one month from arrival in Australia to apply for protection and this might undermine the genuineness of his claims. The applicant replied that his mother had died and he needed to wait in Fiji for his father to return from [work] so he could thank him and have a proper farewell. He added his father was paying for his trip to Australia. The Tribunal noted that the applicant was able to exit and re-enter Fiji in connection with his travel to Australia and this suggests he is not of adverse interest to the Fijian authorities. Further, the Tribunal noted that the DFAT country information did not tend to support his claims of facing harm if he returned to Fiji.
The applicant advised the Tribunal that it was not the Fijian Government which would hurt him but it is the people as they dislike gays. The Tribunal raised with the applicant the DFAT country information relating to State Protection and he replied that the authorities have not protected him previously and his gay friends still say there are problems. The applicant reiterated that he is fearful of the people who harassed him and he was held back from his full potential even though the Constitution was changed. He explained that his family did well in Fiji but for him it was a miserable life. The applicant stated that his family unit couldn’t protect him. The applicant indicated the Fijian Government set up the Constitution but the people are against gays. He added that the Government can make the rules but it is up to the people to accept them. As noted previously, the Tribunal granted further time following the first review hearing for written submissions and evidence. Such material was received on 13 and 14 November 2017. It has been duly considered by the Tribunal.
Documentary evidence received following the first review hearing
A noted above the Tribunal received post hearing submissions and evidence on 13 and 14 November 2017. An unsigned Statutory Declaration from the applicant makes a new claim concerning him being assaulted by his father and advised that a gay person would not be able to live in the house. The applicant asserts that he did not want to raise this claim because he didn’t want to ‘drag’ his father’s name into the case. He asserts that he only raised the claim as his sister did so in her letter of support.
A letter dated [in] October 2017 from [Ms E], sister of the applicant, claims that the applicant was assaulted by their father ‘one day’ for being homosexual and was told that a gay person would not live in the house. She also claims that the applicant was assaulted by [other relatives] with their father watching on and encouraging them. She confirms her belief that the applicant is gay and fears that harm (including self-harm) will come to him if he returns to Fiji. A letter dated [in] October 2017 from another sister of the applicant, [Ms D], confirms her knowledge that the applicant is gay and claims that their father assaulted the applicant at home one morning and advised that no gay person would live in the house. She adds that the applicant has suffered verbal abuse and she also has other gay friends who have suffered harm. A letter from [Mr C] dated [in] September 2017 provides a general overview of gay people not being accepted in Fiji and cites the recent murder of a gay student. A letter from [Ms B] (wife of [Mr C]) dated [in] September 2017 provides a general description of gay people not being accepted in Fiji, cites the recent murder of a gay student, provides links to media articles, notes she has a gay son, and indicates she is a [particular occupation] with knowledge of the risks faced by the LGBTI community in Fiji. A twenty two page submission from the ‘exempt agent’, [Mr A], was also received which cites links to media reports, case law and legislation, and presses the applicant’s claims for protection. All material received by the Tribunal has been duly considered.
Evidence at the second review hearing

The applicant confirmed to the Tribunal that he was feeling well enough to give evidence. The Tribunal drew to his attention that he had raised a new claim in writing of harm that his father had dragged him out of bed then punched, kicked and verbally abused him. The applicant explained that he wanted to maintain the integrity of his family and didn’t want to portray his father as an aggressive bully and that is why he did not raise the claim earlier. He noted that his father supported him to pay for his airfare to Australia and he didn’t want to drag his name into this case. The applicant indicated he advised his sister not to include matters concerning their father however she wrote her letter and sent it to [Mr H]. His sister is [a particular occupation] and she said she knew what she is doing. [Mr H] apparently found the information important and confronted the applicant who explained that he didn’t want to raise the allegations as his father is in the Church and has a good job. The applicant maintained that it was his sister who raised the allegation against their father.
The Tribunal indicated to the applicant that it might have difficulty accepting the genuineness of the claim regarding his father given the long delay in raising it, and as it was not raised before the Departmental delegate or during the first review hearing. The applicant responded that he only raised the claim after his sister raised it in her letter. He maintained that his father supported him to come to Australia and he didn’t want to paint a bad picture of him. The Tribunal asked the applicant what happened with his father. The applicant advised in mid 2010 at home he was assaulted. The Tribunal asked for more detail. The applicant advised ‘it was hard to come up with it after Mum died’. The Tribunal indicated to the applicant he had not provided much detail regarding the alleged assault by his father, inviting his comment. The applicant indicated he was dragged out of bed and told to leave. His mother was crying then he left and came back after a few days. When asked by the Tribunal if there were any further incidents of harm he replied, ‘not really’. The Tribunal observed the applicant’s account to be vague and lacking in detail, with him displaying an evasive demeanour whilst providing this oral evidence.
The Tribunal raised with the applicant that his unsigned Statutory Declaration and letters from his two sisters were provided following a significant delay and accordingly it might have difficulty accepting the genuineness of the information provided, inviting his comment. The applicant replied when told of the letter he decided to make his Statutory Declaration. The Tribunal raised with the applicant that the letter from his sister [Ms E] also referred to [relatives] assaulting him whilst their father looked on and did not intervene and due to the significant delay in providing this information it might have difficulty accepting the genuineness of the information, inviting his comment. The applicant indicated the incident in the village was raised in the first review hearing. The Tribunal notes that no reference was made to the applicant’s father in the first review hearing with respect to that alleged incident.
The Tribunal raised with the applicant that during the first review hearing he advised he was in regular contact with his father and two sisters in Fiji, his father has a good job in [his field] and supported him to study for a [qualification], he stated his only ‘safe haven’ was with his family in Fiji, he delayed his departure from Fiji to have a proper farewell with his father, and that his father paid for his trip to Australia. The Tribunal indicated the aforementioned information appeared inconsistent with the applicant being harmed and rejected by his father because he is gay and that his father would not intervene when the alleged assault by the [relatives] took place. The applicant responded that it was after 7 years and his father wanted him away at [work] and in Australia, as his status was not good for his father to have him remain at home. When asked by the Tribunal if he feared harm from his father, the applicant responded that he is still in contact but didn’t know if the relationship would be normal again after the incidents. The Tribunal asked the applicant again if he feared his father and he replied that he did.
The Tribunal asked the applicant why he would fear his father now if no harm had occurred since 2010. The applicant replied that his father likes him being away, they have no relationship and he provides no support, although he loves him as his father. The Tribunal indicated that the delay in raising the claim with respect to his father and that no harm had occurred since 2010 might tend to suggest the claim was not genuine and that there was no real chance of him facing serious or significant harm. The applicant responded that he doesn’t think there is a loving relationship from now on and his father is unhappy because his status is against his religious beliefs and position in the Church.
The Tribunal raised with the applicant that the alleged assault by his [relatives] is not reflected as being raised before the Departmental delegate and he delayed in raising it during the first review hearing, and accordingly the delay in raising the claim might cause it difficulty in accepting the genuineness of the claim. The applicant responded that the incident happened about one month after his mother was buried and it was a tough incident to discuss because he was harmed by two close family members who were his friends as kids.
The Tribunal recalled that during the first review hearing it raised with the applicant his delay in making the specific claim about being assaulted in [Location 2] and that this delay might cause it some difficulty accepting the genuineness of the claim. The applicant responded that he raised the claim at the previous hearing and had nothing further to add. The Tribunal recalled that during the first review hearing it raised with the applicant the apparent inconsistencies in his claim concerning the assault at [Location 1] in [Town 1] and that this might cause it some difficulty accepting the genuineness of the claim. The applicant replied that he said everything during the previous hearing. The Tribunal recalled that during the first review hearing it raised with the applicant that he delayed raising his claim that he was targeted for harm on the basis of being a gay [qualified individual] and that the delay might cause it some difficulty accepting the genuineness of the claim. The applicant had nothing further to say in response.
The Tribunal raised with the applicant that the letter he submitted from [Mr C] dated [in] September 2017 appeared general in nature, provided limited detail concerning the applicant’s personal circumstances and was provided following significant delay. The Tribunal indicated the aforementioned characteristics might cause it to place limited weight upon the letter, inviting the applicant’s comment. He replied that his [relative], [Mr A], contacted some people that he knew and that the letter was a general letter about the gay community. The applicant confirmed he did not know [Mr C]. The Tribunal raised with the applicant that the letter he submitted from [Ms B] dated [in] September 2017 appeared general in nature, provided limited detail concerning the applicant’s personal circumstances and was provided following significant delay. The Tribunal indicated the aforementioned characteristics might cause it to place limited weight upon the letter, inviting the applicant’s comment. He replied that his [relative], [Mr A], was responsible for the letters and he confirmed that he did not know either of the authors.
The Tribunal notes that the DFAT country information was updated following the first review hearing and accordingly the latest material was brought to the attention of the applicant at the second review hearing. The Tribunal raised country information from DFAT[6] with the applicant, concerning sexual orientation and gender identity, which indicates the Constitution prohibits discrimination on the basis of sexual orientation and gender identity or expression, a law criminalising homosexuality was repealed in 2010, LGBTI Fijians may find more acceptance in Suva, and while Prime Minister Bainimarama rejects gay marriage and homosexual men experience limited acceptance in Fiji, overall DFAT assesses that LGBTI Fijians are at a low risk of official discrimination and a moderate risk of societal discrimination. The Tribunal indicated that even if his past claims of harm were accepted, the country information did not tend to support his claims that there is a real chance he will face or suffer any serious or significant harm if he returned to Fiji. The applicant responded that he keeps abreast of the Fijian media which reports LGBTI people are threatened every day. His friends on social media advise him that they don’t raise matters with the authorities. The applicant contended that threats and discrimination were common towards the LGBTI community and recently a young gay man was murdered. The applicant disagreed with the DFAT country information.
[6] Paragraphs 3.75, 3.77 & 3.78 - DFAT Country Report Fiji of 27 September 2017.
The Tribunal raised country information from DFAT[7] with the applicant, concerning State Protection, which indicated the Fijian authorities would not adversely target persons with a low political profile and were generally capable of providing protection to the general population. The Tribunal indicated that even if his past claims of harm were accepted, the country information did not tend to support his claims that there is a real chance he will face or suffer any serious or significant harm if he returned to Fiji. The applicant responded that he witnessed suffering at the hands of the police, he receives information from home that they are not doing enough there and he generally disagreed with the DFAT country information.
[7] Paragraphs 5.7, 5.11 & 5.17 - DFAT Country Report Fiji of 27 September 2017.
The Tribunal raised country information from DFAT[8] with the applicant, concerning ‘torture, cruel, inhuman or degrading treatment of punishment’, which indicated there were now low risks of such harm for those who have been critical of the Fijian Government (for completeness, the Tribunal notes that it raised this information as one of the applicant’s claims concerned him being physically harmed by a Police Officer). The Tribunal indicated to the applicant that even if his past claims of harm were accepted, the country information did not tend to support his claims that there is a real chance he will face or suffer any serious or significant harm if he returned to Fiji. The applicant responded that he disagrees with the DFAT country information as there are reports of gay men being tortured in the news every now and then in Fiji.
[8] Paragraph 4.10 - DFAT Country Report Fiji of 27 September 2017.
The Tribunal raised country information from DFAT[9] with the applicant, concerning internal relocation, which indicated he could relocate to areas of Fiji such as Suva to avoid those he says might cause him harm. Further, the applicant is educated, relocated for study when living in Fiji, and has demonstrated flexibility and adaptability by moving to Australia. The applicant replied that the reports he has received concerning harm for LGBTI people are coming out of Suva. He added that [Town 1] is not safe either as the incidents at [Location 1] and [Location 2] occurred there.
[9] Paragraphs 5.21, 5.23 and 5.24 - DFAT Country Report Fiji of 27 September 2017.
The Tribunal raised country information from DFAT[10] with the applicant, concerning exit and entry procedures, which indicated it is unlikely he would be of interest to the Fijian authorities given he was allowed to exit and re-enter the country in connection with his travel to Australia. The applicant replied that some of the information released sees him as a person of interest if he returns to Fiji. The Tribunal noted that the applicant had provided some of his own country information in written documents submitted prior to the second review hearing and invited him to comment upon it. He replied that the information came from his representative ([Mr A]) who updated him on everything. The Tribunal raised with the applicant that this information does not refer to his own specific personal circumstances, that it was bound by the DFAT country information, and accordingly it might give the applicant’s country information lower weight. The applicant was invited to comment and replied that he had nothing to say.
[10] Paragraphs 5.32 & 5.33 - DFAT Country Report Fiji of 27 September 2017.
The applicant confirmed to the Tribunal that his [relative], [Mr A], would not provide any further oral evidence. The applicant indicated that he didn’t want to involve his two sisters in the case but felt they were his only hope. He didn’t want his [sister] to raise matters regarding their mother and father but [Mr A] became involved. The applicant maintained that he didn’t want to involve his father and damage his reputation but his sister suggested he required this information. The applicant advised his mother was the only person he could rely upon. He has one sister living with his father and the other is married. The applicant stated that since 2014 he has no family support or network in Fiji. [Mr A] made oral submissions indicating he advised the applicant to raise the incident with his father even though he understood his reasons for not wanting to do so, he has no reason to doubt the genuineness of the claim, he previously lived in the same village and saw how gay people were treated, he researched similar cases and he fears that if the applicant returns to Fiji he will face problems with his father, the police and the military. The applicant had no further oral evidence to provide following these submissions.
On 21 December 2017, the Tribunal received a further written submission from [Mr A] which summarised the applicant’s claims. In particular, the submission advances the contention that the assault by the applicant’s father demonstrates that the applicant cannot return to his father’s village. It is further submitted that the applicant has no family or social support in Fiji and his mental state is such that he could not relocate within Fiji (no medical evidence has been submitted concerning the applicant). In addition the submission refers to a previous decision of the Refugee Review Tribunal concerning an unrelated gay man who obtained protection in Australia (which factually is distinguished from the present matter). The submission of [Mr A] has been duly considered by the Tribunal.
Analysis
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. The Tribunal accepts that the applicant is a homosexual man who has had two male sexual partners in Fiji. However, his written claims for protection on the basis of his homosexuality are vague and lack detail concerning specific instances of harm. Whilst the Tribunal accepts the applicant’s evidence that he completed his application for protection without assistance, and draws no adverse inference from the timing of the lodgement of that application after his arrival in Australia, it does not accept that this accounts for the vagary and lack of specificity in the claims made when considering his case holistically. After the review hearings, the Tribunal developed serious concerns with the credibility of the applicant’s claims for protection, which are highlighted by the following matters. The applicant provided a vague account of the alleged incident in 2008 at [Location 1] and in doing so gave inconsistent oral evidence concerning whether the police, or the police and the military, were present. The applicant also raised claims concerning physical harm in 2012, 2014 and 2015, and being targeted for being a well known gay [individual in his field], that were not specified in his written application for protection or raised with the Departmental delegate. He provided vague oral evidence regarding these claims. The very lengthy delay in specifically raising these claims further undermines their credibility. Given the general lack of credibility of the applicant, the Tribunal does not accept his reasons provided for such delay. The Tribunal has formed the impression that the applicant embellished his claims for the purpose of strengthening his application for protection and finds him to lack credibility.
Additionally, the applicant raised claims after the first review hearing concerning his father physically assaulting and verbally abusing him in 2010, and encouraging his [relatives] to assault him in 2015. Such claims are inconsistent with the applicant’s early oral evidence suggesting he was in regular contact from Australia with his father and sisters, his parents and sisters were those with whom he could ‘seek refuge’, his family home was a ‘safe haven’, he delayed his departure from Fiji in 2015 to thank his father and have a proper farewell, and generally that his father financially supported him to study and travel to Australia. The claims were also raised after an extremely lengthy delay which detracts from their credibility. The applicant’s explanations for the delay are unconvincing given his general lack of credibility. Following careful consideration, due to the aforementioned matters, the Tribunal places low weight upon the evidence provided by the applicant’s sisters and uncle ([Mr A]) concerning such matters. Additionally, the Tribunal finds that in oral evidence [Mr A] displayed a limited knowledge of matters pertinent to the applicant’s claims for protection. For example, his evidence during the first review hearing was vague and unconvincing with respect to the alleged incidents of harm faced by the applicant in Fiji. Accordingly, [Mr A]’s oral evidence is afforded low weight. On balance, the Tribunal finds that the applicant and witnesses fabricated the claims with respect to the applicant’s father (including references to the [relatives] assaulting the applicant) for the purpose of strengthening the application for review. Following careful consideration, the Tribunal does not accept the veracity of the applicant’s claims to have faced physical harm in 2008, 2010, 2012, 2014, 2015, or at any other time, as it finds him to have provided untruthful evidence concerning such matters.
The Tribunal notes that the applicant referred in his written claims to being an indigenous Fijian who fears that he is exposed to an elevated level of harm given the predominately Christian composition of that group and the large Christian element within wider Fijian society. Additionally, he referred to the Church not assisting him. Whilst the Tribunal accepts that Fiji has a large Christian population in the indigenous community, and in wider society, it does not accept that the applicant is at risk of any harm, or elevated risk of harm, on account of those factors or because he is an indigenous Fijian, given that the specific allegations of harm he has raised lack credibility for the reasons previously expressed.
For the above reasons, the Tribunal finds that the applicant would not suffer either serious harm in relation to the refugee criterion (none of the considerations in s.5J(5) of the Act being present in his circumstances, especially as there is no physical threat to him), or significant harm in relation to complementary protection (none of the considerations in s.36(2A) of the Act being present in his circumstances). For completeness, the Tribunal notes that in his oral evidence the applicant indicated that he does not fear the Fijian authorities, rather he fears the general population. His travel history between Australia and Fiji, utilising his own passport, and the relevant DFAT country information referred to previously, suggests that he is of no adverse interest to the Fijian authorities. As previously indicated, the Tribunal does not accept that the applicant was harmed by any member of the police or military (or any other of the Fijian authorities). Further, as noted earlier, the applicant provided inconsistent evidence regarding him lodging complaints with the police (before the Tribunal he advised he made only one complaint in 2012, yet before the Departmental delegate he indicated he complained of a separate matter in 2007) and therefore the Tribunal does not accept the veracity of his claims that he sought assistance from the police which was denied to him. After carefully consideration of the aforementioned matters, the Tribunal finds the applicant is not of adverse interest to the Fijian authorities and he is not at risk of harm from them.

The Tribunal notes that in addition to physical harm, the applicant raised claims of discrimination, verbal abuse, harassment, spitting, bullying, torment, name calling, persecution, and mental abuse and other non-physical harm. The Tribunal accepts that during his time in Fiji the applicant has been verbally abused and harassed from time to time on account of his sexuality. However, the Tribunal does not accept that if he returns to Fiji he has a well-founded fear of persecution, or that there is a real risk that he will suffer significant harm, for the following reasons. The applicant’s father is reasonably well off and funded him to study and obtain a [qualification] in [Town 1] between 2008 and 2013. The applicant acquired employment in [a particular area] at [Workplace 1] following his studies and relinquished such employment in 2014 in order to return home and care for his sick mother. For reasons previously expressed, the Tribunal prefers the earlier oral evidence of the applicant regarding his good relationship with his father and sisters, to the more recent evidence seeking to portray the contrary. Accordingly, the Tribunal does not accept that the applicant has no family home to return to in Fiji. The Tribunal notes that with respect to the alleged physical harm he suffered (claims which the Tribunal does not accept) the applicant advised he did not require medical attention. Nor is there any documentary evidence from a health professional to suggest the applicant has suffered, or is suffering, from a physical or psychological ailment arising from his treatment as a homosexual or for any other reason. For completeness, the aforementioned reasons lead the Tribunal to conclude that the applicant does not have a well-founded fear of persecution, nor is there is a real risk that he will suffer significant harm, on account of his indigenous Fijian status or due to the prevalence of Christianity within that group and in wider Fijian society, or due to him not receiving assistance from the Church.
The Tribunal accepts that the applicant, from time to time, received verbal abuse and harassment in the workforce in Fiji. He says he was held back from his full potential on account of his sexuality. However, the applicant is well educated and is qualified [in a particular field]. He undertook employment with [Workplace 1] following his studies. He has an excellent command of the English language and has demonstrated versatility in supporting himself in Australia. Therefore, the Tribunal does not accept the contention that he will be unable to obtain employment, or be unable to subsist, if he returns to Fiji. Additionally, the Tribunal finds that he is able to move from his home village, should he wish, to any other location in Fiji of his choosing given the qualities he possesses. For completeness, the Tribunal does not accept that the applicant’s claims surrounding his disadvantage in the workforce would amount to either serious harm in relation to the refugee criterion (none of the considerations in s.5J(5) of the Act being present in his circumstances, especially as there is no threat to his capacity to subsist given his characteristics previously outlined), or significant harm in relation to complementary protection (none of the considerations in s.36(2A) of the Act being present in his circumstances, particularly given his aforementioned characteristics). For completeness, the aforementioned reasons lead the Tribunal to conclude that the applicant does not have a well-founded fear of persecution, nor is there is a real risk that he will suffer significant harm, on account of his indigenous Fijian status or due to the prevalence of Christianity within that group and in wider Fijian society, or due to him not receiving assistance from the Church.
The Tribunal accepts that the situation for homosexual men residing in Fiji is not as attractive as the situation for such persons residing in Australia. However, whilst the DFAT country information referred to previously points to some limitations in the acceptance of homosexual men in Fiji, it does not support the contentions of the applicant that he has a well-founded fear of persecution, or that there is a real risk that he will suffer significant harm, if he returns to Fiji as an indigenous Fijian homosexual man. The Tribunal affords the written evidence from [Mr C] and [Ms B] low weight given that it is general in nature, provides limited detail concerning the applicant’s personal circumstances and was provided following significant delay. The Tribunal has considered the written submissions, correspondence from [Mr C and Ms B], and compilation of country information (predominately media articles) presented by the applicant and accepts that they point to Fiji as a less attractive country for homosexuals to reside in compared with Australia. However, given its official source the Tribunal prefers the DFAT country information which suggests the applicant does not have a well-founded fear of persecution, nor is there is a real risk that he will suffer significant harm, to the country information submitted by the applicant. For completeness, the Tribunal does not accept the written submissions citing an unrelated case in the Refugee Review Tribunal as persuasive in the applicant’s case, given the different factual circumstances involved.
Whilst the Tribunal understands that the preference of the applicant is to remain in Australia where the prevailing social and economic circumstances are more favourable than in Fiji, it does not accept that he satisfies either the refugee criterion, or that he is a person entitled to complementary protection, as a result of such circumstances.
CONCLUSION
Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
For the 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) of the Act. 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) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act 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) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
K. Chapman
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
(1)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.
(2)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.
(3)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.
(4)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.
(5)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.
(6)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
(1)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.
(2)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.
…

[2018] AATA 920

16 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal