1515301 (Refugee)

[2017] AATA 2733

1515301 (Refugee) [2017] AATA 2733 (9 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1515301

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Nathan Goetz

DATE:9 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 November 2017 at 2:25pm

CATCHWORDS

Refugee – Protection Visa – Fiji – Imputed political opinion – Opposition party supporter – SODELPA –  Witness credibility – Delay in seeking protection

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection [in] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant claims to be a citizen of Fiji and applied for the visa [in] March 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the definition of a refugee defined by section 5H(1) of the Act, nor was the applicant a person to whom Australia had protection obligations.

3. The applicant filed an application for review to the Administrative Appeals Tribunal (the Tribunal) on 10 November 2015.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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. In this case, the relevant country information is the DFAT report of 14 April 2015.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Tribunal accepts that the applicant is a citizen of Fiji on the basis of the passport which has been submitted and therefore the claims will be assessed against Fiji.

2. The issue in this case is whether the applicant, owing to a well-founded fear of persecution on the basis of political opinion, is unable or unwilling to avail himself or herself of the protection of Fiji. The applicant raised three instances of past harm where he had been persecuted because of his political opinion.

   Certificate

3. The Department’s file contained non-disclosure certificates under s.438 of the Act in respect to information submitted though the departmental website [in] December 2015, [January] 2017 and [April] 2017. The certificate stated that the information was provided in confidence and should not be disclosed without appropriate consideration.

4. The Tribunal’s view was that the certificate was valid for the reason identified and explained to the applicant at the hearing that it was a valid certificate. The Tribunal described to the applicant that the information related to ‘relationship issues’ between the applicant and his partner. He was invited to comment on the validity of the certificate but the Tribunal noted that the information contained in the certificate had no bearing on his protection claims. The applicant did not comment on the certificate. The Tribunal exercised its discretion to not disclose this information because it was not relevant.

5. Subsequent to the hearing, the Tribunal received another certificate under s.438 of the Act in relation to information submitted through the departmental website [in] September 2017, [September] 2017 and [October] 2017. The certificate stated that the information was provided in confidence and should not be disclosed without appropriate consideration. The Tribunal received this information on 9 October 2017. Again, the information can be described as ‘relationship issues’ between the applicant and his partner. Again, the Tribunal’s view is that the certificate was valid for the reason identified in the certificate but had no bearing on his protection claims. The Tribunal exercised its discretion to not disclose the information covered by the certificate because it was not relevant.

6. As the information is not relevant and had no bearing on the applicant’s protection claims, and the information is similar to the information covered by the previous certificate which was discussed with the applicant at the hearing, the Tribunal has proceeded to make a decision without holding another hearing. If the information contained in the certificate was relevant to his claims, the Tribunal would have reconvened to give the applicant a chance to comment on or respond to this information.

   Application for Protection Visa

7. In his statutory declaration dated [in] March 2015 accompanying the protection visa application, the applicant declared that the following incidents occurred:

   ·In October 2013, he spoke to an Army [officer] in the company of his friend because the friend believed that the army [officer] was involved with his friend’s wife. The army [officer] told him to keep out of this and denied the allegation. The applicant claims that on the following day, the army [officer] took the applicant to an army camp and beat him, held him over night before releasing him, and was warned not to report that to anyone and that the applicant would face further violence if he did so.

   ·In [2014], he applicant was at a village at an election meeting for a political candidate from the Social Democratic Liberal Party (SODELPA). He was acting as security and was required to remove some people who were shouting and interrupting the meeting. The group left. Once the meeting was finished, the applicant remained behind to clean up after the meeting. The group returned and this time it included a soldier. The applicant was beaten and [he was injured].

   ·In July 2014, the applicant and another person went to deface a poster [of] Frank Bainimarama, the Prime Minister of Fiji. The army came, took him to an army camp, beat him, and held him overnight before releasing him.

   Analysis, Reasons and Findings

   Forgetting an instance of past harm and evidence of harm occurring not in accordance with chronology in written application

8. At the Tribunal hearing, the applicant was asked to outline his claims starting with the first incident in 2013. The applicant then gave evidence about the defacing of the Bainimarama poster (which, according to his statutory declaration, occurred in July 2014 and was the last of the incidents) which was consistent with the evidence in his written application (save and except for the date).

9. He then gave evidence about the incident involving the village meeting which was consistent with the evidence in his statutory declaration.

10. At the conclusion of giving this evidence, the Tribunal asked him about his remaining claim, and the applicant gave evidence that he forgot about this claim (namely, the incident with the army [officer] who beat him following the applicant warning him to stay away from his friend’s wife). The applicant said that he had perhaps three claims but he could not remember.

11. The applicant was then allowed to refer to his statutory declaration to refresh his memory. When the Tribunal asked the applicant why he did not remember this incident, the applicant said that he was waiting for the Tribunal to ask him about the claim. The applicant was challenged about this because the Tribunal specifically asked him about his remaining claim and the applicant stated that he could not remember.

12. The Tribunal does not accept that the applicant, who apparently fears persecution on the basis of past harm, would forget one of his claims, particularly when there were only three claims advanced. Further, the fact that the applicant gave evidence to the Tribunal that the first instance of harm in October 2013 was actually the incident in July 2014 involving the campaign meeting also raises doubt about the truth of that claim. If this applicant had only suffered three instances of persecution he would be able to correctly remember the sequence of those events. The inconsistency between the oral evidence to the Tribunal and written application raises doubts in the Tribunal’s mind that these events have occurred at all.

    Delay in applying for protection

    The Tribunal asked the applicant about his delay in seeking protection, that the applicant arrived in Australia as part of a travelling [group] [in] September 2014 on a [temporary visa] that was valid until [October] 2014. He lodged his application for a Protection Visa 6 months later [in] March 2015.

13. The applicant told the Tribunal that nobody had told him about the procedures and he just decided to stay on in Australia. The Tribunal finds it difficult to accept that the applicant, who has genuine fears of persecution if he was to be returned to Fiji, would not do all that is possible to seek protection in Australia without delay.

    Credibility of claim that the applicant was harmed and detained

14. The applicant’s claims that he has been beaten and held overnight by an army [officer] for warning the [officer] about having an affair with a friend’s wife, being harmed while working as security at a SODELPA campaign meeting, and being beaten and detained for damaging a political poster are inconsistent with country information which states that ‘senior members of opposition parties (i.e. those running for office) in Fiji are at a moderate risk of being monitored and intimated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed.’ On his evidence, the applicant was not a senior member of the opposition party and there is no evidence to suggest in the country information that merely being a supporter of SODELPA will result in assaults and detention by government officials or other groups.

    Cumulative effect of findings

15. The cumulative effect of the applicant not remembering a claim of past harm, not remembering the sequence of the incidents of past harm in accordance with his written claims, delay in seeking protection, and the fact that no country information suggests that merely being a supporter of SODELPA is likely to result in arbitrary detention or harassment results in the Tribunal not finding that the past claims of harm have occurred. They are inconsistent with the country information.

16. The Tribunal does not find that the applicant has a well-founded fear of persecution on the basis of his political opinion because there is a no real chance that he would suffer serious harm if he was to be returned to Fiji. The Tribunal does not, for the reasons outlined, find the applicant to be a credible witness and rejects his claims.

17. In the alternative, The Tribunal does not find that the applicant is a person to whom Australia has protection obligations under the complimentary protection criterion. There are no substantial grounds for believing that there is a real risk that the applicant will suffer significant harm should he be returned to Fiji. The Tribunal does not, for the reasons outlined, find the applicant to be a credible witness and rejects his claims.

    Decision

18. The Tribunal affirms the decision not to grant the applicant a protection visa.

Nathan Goetz
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.

…