1515317 (Refugee)

1515317 (Refugee) [2017] AATA 2680 (19 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515317
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:19 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 September 2017 at 7:43pm
CATCHWORDS
Refugee – Protection visa – Work as police officer – Resigned due to issues at work – Fear of military officers – Credibility Issues
LEGISLATION
Migration Act 1958, ss 5AAA, 5I-LA, 36, 65, 424AA
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 relevant law is set out in Annexure A.
The applicant, who claims to be a citizen of Fiji, applied for the visa [in] July 2015. The delegate refused to grant the visa on the basis that, although prepared to accept some of the claims, the claims of physical assault or verbal abuse or threats were not credible; and the delegate referred to his significant delay in applying for protection once he was in Australia. The delegate was not satisfied that the applicant is a refugee or entitled to complementary protection.
The Department
The Departmental file[1] contains documents including the applicant’s protection visa application forms, his statement, a copy of a page of his passport, supporting documents, a copy of the recording of the interview with the delegate (to which the Tribunal has listened) and the delegate’s decision record. There are no certificates restricting disclosure of any material on the Department’s file.
[1] Other documents, such as relating to his bridging visa application seeking permission to work, are not relevant
According to the applicant’s written documents, his background and claims can be summarised as follows:
·     The applicant was born [in] Fiji. His ethnicity is Fijian and his religion is Christian. He speaks, reads and writes in English and Fijian. He has [number] years of education.
·     He separated from his wife [in] October 2013 in [City 1], Fiji.
·     He joined the police force [in] October 1989 and served in the rank of [Rank 1]. He resigned from the force [in] January 2014, because of an adverse decision. Since 2003 he had been stationed at [Town 1] police station. Then, in 2009, he was promoted to station officer at [Town 1] police station. In 2011 he was transferred to [City 1] police station.
·     While at [City 1] police station, he was instructed to work in [another] branch as [an] officer. He should have been given the rank of [Rank 2], but they did not promote him for two years despite the good work he has done. He was pushed out of [this] branch and they later promoted a junior officer in that position. In December 2013 he was instructed to vacate police quarters without any reason. He did not want to do so, so some officers came and removed all his belongings outside. He then transported all his belongings to his sister’s home. [In] January 2014 he received a memo to transfer to [Town 2] police station in the interior of [location]. This was a location of no communication and electricity; it was punishment. Thus, [in] January 2014, he forwarded his resignation listing his grievances stating that he had been forced to resign for no reason.
·     That afternoon he was taken by army officers and harmed at the police station. He was released and the next day he went to the hospital. The day after, he returned to the hospital for his medical report; however, the army officers had organised to delete all evidence of his medical report. He thus started to fear for his life. He went to the Divisional Police Commander and informed him of what had happened; he said he would talk to the army officer in charge. Then, the applicant started receiving threatening text messages on his phone saying they would shoot him; he was very frightened. He made arrangements to be sponsored to Australia.
·     He left Fiji [in] March 2014[2], arriving the same day in Australia, holding a [temporary] visa. He is in contact with his family by phone and email and Facebook.
·     He fears for his life if he returns; the military officers will torture him again. They have been threatening to kill him with a gun.
[2] His form said [date] March 2014; however, his statement said [date] March 2014, and Departmental movement records show that he arrived on [date] March 2014. The difference in dates is not of any significance.
The applicant provided supporting documents from the police force.
At the interview the applicant discussed his claims with the delegate. He said that he could return to his village, but he would not make it there because the threat would be at the airport. They could even take him to court for disrespect of superior officers. If he returned, he would find it very hard to get another job because of his situation with the police force.
The Tribunal
The applicant provided to the Tribunal a copy of the notification of the refusal by the Department, an application for review, a copy of his birth certificate, a page from his passport, copies of documents previously provided to the Department, as well as a letter dated 29 October 2015 addressed to the Tribunal, stating that: he does not wish to return to Fiji because the current government is a military government remaining in power; and on a few occasions he made numerous calls to high-ranking officers in the Fiji police force relating to his case, and they informed him he should not return to Fiji because the military is still in power.
The applicant appeared before the Tribunal by way of video link on 15 September 2017 to give evidence and present arguments. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting that it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision.
In the application for review form, in answer to the question of whether he sought to ask for an interpreter, the applicant said no. Further, when he was forwarded the Hearing Invitation on 20 August 2017, he was requested that, if he wanted an interpreter, he should tell the Tribunal at least seven days prior to the hearing. He did not do so. The information sheet provided to him prior to the hearing stated that, if requested, the Tribunal would organise an interpreter to be present at the hearing for the applicant.
At the hearing, when the Tribunal noted that the applicant had not requested an interpreter, it said that it was important for him to let it know if there was anything he did not understand. The applicant suggested that he did not know that he could get an interpreter; the Tribunal put to him the previous correspondence (as set out above). The Tribunal asked whether the applicant was happy to proceed without an interpreter, or whether he would like the Tribunal to obtain an interpreter for him. He said that he was content to proceed without an interpreter. The Tribunal is satisfied that the applicant was able to understand the proceedings, give evidence and present arguments in English.
The applicant said that he had met his de facto wife, who was based in Australia, via Facebook in 2013, and they had been in contact for one year before he came to Australia. Their conversations on Facebook had been romantic. When he came to Australia he stayed in [an Australian city] for three weeks and then he came to [Location 1] to visit his de facto wife; they lived together thereafter [in Location 1]. He has been working as [an occupation] [in Location 1].
The applicant told the Tribunal that he started being fearful in Fiji on the afternoon of [date] January 2014 when a police van of army officers took him to the police station. When the Tribunal asked what they said to him, he said they said that he was talking against the current government, and he said he was not. When the Tribunal asked why he was released, he said he did not know.
He told the Tribunal that his fear or worry about returning to Fiji is that the Prime Minister runs the country; the applicant has been accused of talking against the government, so when he arrives in Fiji they will harm him. The Tribunal noted that they had had 2 months before he left to harm him but they did not. He was at work; they could have easily located him. The Tribunal noted that it did not sound that they think he was talking adversely about the government, and asked why he thinks they will harm him now if he returns. In response he said because they previously tortured him.
When asked if there were any other concerns, he said he has no job, and how is he going to support his family? The Tribunal noted that his family had been surviving in his absence; he said that his son is [age] years old and studying at university (this is being paid for through his national provident fund) however his “legal wife” is no longer working. He is now back in a relationship with his legal wife; he broke up with his de facto wife in May 2016, when she moved [elsewhere].
He has no other concerns about returning to Fiji. While noting that it had not made up its mind, the Tribunal put to the applicant its concerns with the credibility of his claims, as well as country information sourced from the DFAT Report.
Further relevant evidence, and information put to the applicant pursuant to s.424AA of the Act, is set out below.
FINDINGS AND REASONS
Country of reference
The applicant produced photocopies of pages of his passport issued by the Fijian authorities. The Tribunal notes that the Department has accepted that the applicant is a national of Fiji. For the purposes of this decision, the Tribunal is also prepared to accept that the applicant is a national of Fiji, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Fiji.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence, and his delay in leaving Fiji once he considered his life was at risk, as well as his delay in claiming protection in Australia. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned that there were a number of significant inconsistencies between the applicant’s evidence and the retirement letter he produced from the Fiji police force, including as follows:
·     The applicant told the Tribunal that he had only ever had one job in Fiji. He started work with the police force [in] October 1989, and he resigned [in] January 2014, his last day of work was [in] March 2014. The Tribunal asked whether he had ever had any breaks in that whole time and he said no. The Tribunal asked how long he had worked as a police officer and he said [number] years. The Tribunal then asked the applicant why the police force letter would be congratulating him for [service of a lesser period of time] to the Fiji police force, and he was silent. When the Tribunal noted that he was not answering, he only said it is [number] years. The Tribunal notes that he did not offer an explanation for the Tribunal’s concern, which undermines the credibility of his evidence.
·     The applicant had said that he officially resigned [in] January 2014, and that his last day of work was [in] March 2014. The Tribunal asked the applicant whether he received a payout when he finished work and he said yes. The Tribunal asked whether he received everything he was entitled to, or whether any amount was deducted from him, and he said nothing was deducted. The Tribunal put to the applicant that the letter from the Fiji police force was different to his evidence. It noted that the letter says that they deducted money from his entitlements in two respects: because he failed to give 30 days’ notice of resignation he had to repay thirty days of salary, which was to be deducted from his payout; further, he had to repay [a percentage] of his engagement bonus. This was a total of $[amount] to be deducted, reducing his payout from $[amount] to $[amount]). In response, he said they did not deduct money from his entitlements. He returned the kit. All he knows is that he received his pay until [a date in] March. The Tribunal notes that he did not offer an explanation for the inconsistencies, which undermines the credibility of his evidence.
·     Further, the Tribunal noted that the police letter stated that his letter of resignation was dated [in] January 2014, whereas he said it was dated [in] January 2014. In response the applicant said he forwarded his resignation letter [in] January 2014 and they sent it to Headquarters. The Tribunal noted that this was an official letter calculating his entitlements and punishing him for not having given proper notice with his resignation [in] January 2014; if this was an error, the Tribunal considers that he would have been aware of this. This undermines the credibility of his evidence.
·     Further, the Tribunal noted he claimed he was paid and worked [until] March; his resignation was effective as at [March]; however, the letter states that his resignation was approved as effective from [January] 2014, and this was the reason why he was penalised with deductions. In response he said his salary came until [March]. The Tribunal notes that he did not offer an explanation for the inconsistencies which undermines the credibility of his evidence that he would have been able to explain these inconsistencies if he was talking to the Tribunal about actual events.
The Tribunal also considers that his earlier response, when he was unable to explain inconsistencies about the deductions, namely that he did not know the Tribunal was going to ask him questions about these issues, suggests that he needed to prepare in order to answer the Tribunal’s questions, which further undermines his claims and credibility.
The Tribunal asked whether any of the supporting documents he had produced were originals or copies and he said they are all copies; they sent him copies. The Tribunal asked why they would not send him originals and he said he has no idea; they sent him copies. The Tribunal put to the applicant that it may consider that the letter does not actually relate to him; that instead it relates to someone else, noting the significant number of inconsistencies with what he has said. The Tribunal asked whether he sought to comment and he was silent. He then said he thinks he is telling the truth. The Tribunal does not find his response to be persuasive.
Secondly, the Tribunal had a further concern about the applicant’s claim to have resigned from the police force by way of letter [dated] January 2014. In this regard the Tribunal asked the applicant what he said in his retirement letter. He said “I wish to resign from the Fiji police force”. The Tribunal asked what else it said and he said that he does not want to transfer to [Town 2] police station; it is small and there is no mobile communication and no electricity. He did not refer to any other problems and when asked he confirmed that he had not mentioned anything else in his resignation letter. This, however, was inconsistent with his statement, wherein he referred to a number of reasons why he retired (which he had not provided to the Tribunal): he was not given the rank of [Rank 2] despite his work over a two year period; he was pushed out of [the] branch and a junior officer replaced him; he was instructed to vacate police quarters without reason and, when he failed to do so, his belongings were removed; he had been forced to resign for no reason[3].
[3] See paragraph 4, bullet point 4, above.
When the Tribunal put its concern that he had omitted to mention that he had raised all these matters in his resignation letter, his response was just to repeat some of these claims; he did not explain why he had omitted to tell the Tribunal that these grievances had also been included in his resignation letter. The Tribunal considers that the applicant should have been able to recall the significant grievances that he had included in his resignation letter; his failure to tell the Tribunal these grievances undermines his credibility and these claims.
Thirdly, the Tribunal was concerned about the applicant’s evidence regarding his ranks in the police force. In his statement he claimed that he had been a [Rank 1] for [number] years in the Fiji police force. The Tribunal asked the applicant for all of the ranks he had held in the police force and he said he had been a [Rank 1] but also an acting [Rank 2] for three years from 2010 to 2013 at [City 1] police station. The Tribunal then asked the applicant how he managed to start off as a [Rank 1] at the age of [age] years. He then changed his evidence and said that he was a recruit, then he was promoted to [Rank 3], then [Rank 1], and then acting [Rank 2]. When asked how long he was a [Rank 3], he said three years. The Tribunal put to him that he had been asked for all the ranks he had held and he had not mentioned [Rank 3]. In response he said that he was a [Rank 1] and acting [Rank 2] when he left. The Tribunal notes that it had not confined the question to his rank when he left; the Tribunal is not prepared to give him the benefit of the doubt in light of all of its other concerns. The Tribunal considers that, if the applicant had been a police officer, he would have told the Tribunal all of his ranks when asked.
The Tribunal was also concerned that the applicant’s changing evidence about why he obtained his passport also undermined his claim to have been a police officer. When asked why he obtained his passport, he said he obtained his passport because he had wanted to go on an overseas [mission]. The Tribunal asked whether he had applied for such a mission and he said yes, in 2015. The Tribunal put to him that he had obtained his passport [in] 2013 and asked why it took him so long to apply. He said this was his second passport; his wife burned his first passport. The Tribunal did not consider this to be responsive to its question. The Tribunal then asked him why he would have applied as a Fijian police officer to join a [mission] if he had already quit the Fijian police force in January 2014, and he then changed his evidence and said that he had applied in 2011. The Tribunal put to him that this was a big difference. He said he had overlooked the Tribunal’s question. The Tribunal does not find this to be persuasive. The Tribunal considers that the applicant’s changing evidence undermines his credibility and his claim to have been a Fijian Police officer who resigned.

Fourthly, the Tribunal was concerned that the applicant omitted to mention the threats he received after he was released. The Tribunal asked the applicant why he was released and he said he did not know. The Tribunal asked whether any other adverse contact occurred with anyone after he was released, and he said no one contacted him, said anything to him or communicated with him. The Tribunal noted that this event had occurred in January 2014, and thus it did not understand why he left for Australia [in] March 2014, if nothing else had happened. He responded that he was waiting for the result of his resignation. The Tribunal noted that this was not what he had said in his statement. The Tribunal noted that in his statement, he had referred to contact after he had been released and asked if he could tell the Tribunal about this. In response, he said he could not recall. The Tribunal read out the applicant from his statement “after that, I have been receiving threatening text messages through my mobile phone stating that they will shoot me and I was very frightened. I then made arrangements [to come to Australia].” The Tribunal considers that if the applicant had received such threatening messages after he was released, he would have told the Tribunal. When it was read out to him, he said yes. He said the messages came after he lodged a complaint. The Tribunal noted he had given evidence that there was no contact. He did not explain why he had given such evidence. The Tribunal considers that his omission, and his changing evidence, undermines his claims and his credibility.
Fifthly, the Tribunal was concerned with further inconsistencies between his evidence and statement/ supporting document. He told the Tribunal that they sent the threatening messages because he went to the police station and lodged a formal complaint against them [in] January 2014. The Tribunal then asked him what the result of the formal complaint process was, and he said “they gave me a medical report”. The Tribunal noted this was not an answer and asked again. He said “they recorded my statement”. The Tribunal again noted this was not a response to the question, and again asked about the result of the formal complaint process. He was silent and then said that they lodged a complaint in the complaint book.
The Tribunal again noted this was not a response, and finally he said that there was no investigation conducted because there was no medical report. The Tribunal considers that the applicant would have provided this response when asked if this was the case.
In any event, when the Tribunal asked for the name of the person he lodged the complaint with, he said that he lodged it there and he cannot remember. There was no investigation. The Tribunal then put to the applicant that, if there was no investigation, it does not understand why [a senior police officer], would say in his supporting letter that he conducted an investigation: “I conducted my [investigation] …” The Tribunal considers that, if this had occurred, the applicant would have told the Tribunal that his supervisor had conducted an investigation. The Tribunal considers that this undermines his credibility and his claims.
Sixthly, the Tribunal was concerned about the applicant’s delay in leaving Fiji. As noted above, he told the Tribunal that he was in fear of his life from [January] 2014. When asked, he told the Tribunal that he could not recall how many threatening messages he received. When the Tribunal asked for him to give an approximate number, he said, approximately 20, approximately three times per week from [January] 2014 until [March] 2014. Their content was that [the army officers] will shoot him, they will kill him, he should watch out.
The Tribunal to the applicant, pursuant to s.424AA of the Act, that according to Departmental information, he was granted a [temporary] visa to come to Australia [in] February 2014. He did not however come to Australia until five weeks later, which the Tribunal considered undermined his claim to have received regular threatening messages and to fear being tortured and harmed by the authorities. Further, the Tribunal was also concerned because the applicant’s evidence about how long it took him to come to Australia after he received his visa was changing (and different). He initially said that he came to Australia within 2 weeks of his visa grant; when the Tribunal asked why he would have waited, he then changed his evidence and said that he came to Australia within one week of the visa grant. The Tribunal put to the applicant that, if he had been in fear of his life, it would think he would know how long he held a visa for before leaving Fiji. The Tribunal was also concerned that he was prepared to change his evidence about when he received his visa which undermined his credibility, and his claims. The applicant responded, saying that his life was fairly much in danger and he was being threatened and he received the visa one week before he came and he had to arrange the plane to come to Australia. The Tribunal has considered this response, and his assertion that he received the visa one week prior to coming to Australia; given the Departmental records indicating it was issued almost 5 weeks prior to his travel to Australia, the Tribunal is not prepared to accept his response, and considers that his delay, and his changing evidence about when he received the visa, undermines his credibility and his claims.
Finally, the Tribunal was concerned with the applicant’s delay in applying for a protection visa once he was in Australia. It noted that he arrived in Australia [in] March 2014, claiming to fear serious and significant harm, yet he did not lodge his protection visa application until [July] 2015[4]. The Tribunal put to the applicant its concerns with this 15 month delay. Initially he said he did not know the procedure; he had to ask friends about the protection visa application. When the Tribunal asked when he asked friends, he did not answer. The Tribunal repeated its concern, namely that it did not understand why it took 15 months for him to lodge his protection visa application, and the video connection was disconnected. After some time, it was reconnected; the Tribunal repeated its question. He said he met through Facebook a parliamentarian in October 2014 and asked him how to apply for a protection visa application (the Tribunal notes that the applicant appeared to have signed his forms in October 2014). The Tribunal noted that, if this was the case, it still did not understand why it then took him [until] July 2015 to lodge. He said it took him a long time to get the relevant information off the person. The Tribunal does not find this persuasive. The Tribunal also noted that this still did not explain why, if he arrived in March 2014, he had not done anything until October 2014. The Tribunal put to him that if he had access to the internet why not make enquiries online (Department of Immigration), seek advice from a migration agent, or try to discover his options to remain safely in Australia. He responded that it only came to his mind to talk to that parliamentarian who had applied for a protection visa. The Tribunal does not find this persuasive. The Tribunal considers the applicant’s delay in applying for a protection visa to undermine his credibility and his claims.
[4] As set out in the Department's notification decision provided to the Tribunal by the applicant
He then said that his de facto had applied for an extension of his visa for one year while he was in Australia; the Tribunal asked if he had evidence of this and he said at home. He did not however offer to produce this to the Tribunal. The Tribunal asked what was told to the Department in order to obtain an extension of his [temporary] visa and he did not answer the question despite being asked several times. Finally he said that he told them that he feared for his life in Fiji. The Tribunal considers that, if this was the case, he would have told the Tribunal this as soon as he was asked. The Tribunal then put to the applicant pursuant to s.424AA of the Act that according to the Departmental movement records he had been granted his visa [in] February 2014, he had arrived [in] March 2014, and his visa had expired [in] June 2014; the first bridging visa he had been granted was [in] July 2015 and associated with his protection visa application. This Departmental record did not show that he had applied for or been granted an extension of his [temporary] visa for one year; instead it indicated that he had been present unlawfully for one year prior to lodging his protection visa application. In response the applicant said that when his three month [temporary] visa was about to expire they applied for an extension but he did not know the reply was late and he was illegal staying in Australia. Upon looking for information regarding protection visas he met the parliamentarian on Facebook, they discussed what happened in Fiji, and he told him to apply for a protection visa application. The Tribunal has considered this response but does not find it persuasive. Even if the applicant had attempted to apply for an extension of his [temporary] visa (which, on the evidence before the Tribunal, it does not accept), the Tribunal does not find the reason for his delay of 15 months in applying for a protection visa to be persuasive, given his claim to have been in fear of his life ever since January 2014. The Tribunal considers that his delay undermines his claims.
The Tribunal’s concerns in relation to the above were heightened because his letter accompanying his protection visa application form stated: “I had a three-month [visa] and did not extend my visa due to a reason no one knew what I went through in Fiji and decided to overstay in your country”.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
Corroborative documents: The applicant provided various documents said to be from the police force; all copies only. The Tribunal has discussed with the applicant its concerns with the documents he has produced form the police force; it is not prepared to place any weight on these documents.
At the end of the hearing, after the Tribunal had put to the applicant its concerns with his claims and credibility, he said that he does not want to go back to Fiji, and if his application is rejected, he will do something because he does not want to go back to Fiji. The Tribunal asked what he was referring to, and he said he will commit suicide or whatever, but he does not want to go back to Fiji. The Tribunal asked whether he was seeing a doctor or mental health specialist, and he said no.
The Tribunal is not satisfied that any of the matters claimed can explain or overcome the Tribunal’s concerns with the difficulties in his evidence set out above.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has exaggerated and fabricated accounts of background, events, as well as claimed fears, upon which he has based his protection claims.
Findings on claims of past harm and future fears
The Tribunal accepts that the applicant is [age]-year-old man who has been educated in Fiji, and has worked in both Fiji and in Australia. It accepts that he has one child aged [age] years who is studying at university in Fiji. It is prepared to accept that he separated from his wife, and came over here and lived with his de facto. As put to the applicant at hearing, it considers it more likely that the applicant came to Australia to be with the woman who became his de facto wife; it does not accept his claims of fears and threats. The Tribunal is also prepared to accept his claim that he has now separated from his de facto and restarted a relationship with his wife who remains in Fiji.
On the basis of the adverse credibility finding, it does not accept that the applicant was a police officer, nor that any of the claims arising from this are true. It does not accept that he had difficulties at work, that he faced discrimination or punishments, nor that he was forced to resign from whatever work he had. It does not accept that he was harmed by army officers or police officers (or anyone), that he was accused of taking actions against the government, nor that there was any reason for him to be imputed as anti-government. It does not accept that he received threatening text messages and considered that he had to leave Fiji to be safe. The Tribunal does not accept that the applicant faced any harm or feared harm prior to coming to Australia nor that he considered that he was required to come to Australia to be safe. The Tribunal does not accept any of the claims that flow from these claims. The Tribunal does not accept that that since he has been in Australia he has been informed that he should not return, nor that he faces being charged or taken to court for disrespect to superior officers, not that he faces any harm from the current government headed by Prime Minister Bainimarama, or because the Prime Minister is in power. It does not accept that he faces harm at the airport as a direct result of his adverse profile with the military/ police, as it does not accept that he has such profile.
The Tribunal considers that there is no credible evidence before it to suggest that the applicant has an antigovernment opinion nor that there is any reason for the applicant to face a real chance or a real risk of being so imputed.
Although the Tribunal accepts that the Prime Minister is the head of the military and the state, it accepts that Fiji is generally stable and secure: the 2006 coup was non-violent and did not affect the country’s overall security, and elections in 2014 were calm and free of violence (DFAT Report paragraph 2.48). The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of the authorities, the political situation, human rights concerns, corruption, or the general security situation in Fiji.
Employment/ financial situation: the Tribunal put to the applicant its concerns that he has not been truthful in relation to his employment in Fiji. The Tribunal has not been prepared to accept that the applicant was a police officer in Fiji. The Tribunal notes that the applicant had a wife and child in Fiji, and that he was able to afford to come to Australia. The Tribunal finds that the applicant has had employment in Fiji at a reasonable level, and that he has significant work experience. It considers that when he returns to his wife and adult child they will live together and he will again obtain work. As put to the applicant, a consideration of the DFAT Report did not indicate that he faces a real chance of serious harm or a real risk of significant harm when considering the issue of employment. The Tribunal is not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm (including arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment) for financial/economic/survival reasons, including in the continued support to his family members.
Threat to commit suicide: The Tribunal notes the applicant’s assertion that, if he does not receive a positive decision from the Tribunal, he will “commit suicide or whatever”. The Tribunal also notes that there is no evidence before it as to the state of his mental health other than the applicant’s assertion in this regard. On the evidence before it and having regard to the definitions of refugee and complementary protection, the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution, nor a real risk of significant harm in Fiji (arbitrary deprivation of life, imposition of the death penalty, intentional infliction of: torture, cruel or inhuman treatment or punishment or degrading treatment or punishment).
The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Fiji. Nor does it accept that this is what he faces a real chance or real risk of upon return.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any of the past harm or threats or adverse interest as claimed. It does not accept that he was a police officer.
The Tribunal has accepted that the applicant is an educated male with qualifications and work experience in Fiji, and that he has worked in Australia, and that he has a wife and an adult child to whom he will return. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason (including from the authorities, his financial/ employment situation or in living with his family, nor for any actual or imputed political reason).
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Fiji, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christine Cody
Member

ANNEXURE A - 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 below.
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 below.
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 (DFAT Country Report Fiji, 14 April 2015), to the extent that they are relevant to the decision under consideration.
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.
…

[2017] AATA 2680

19 September 2017

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Immigration

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Statutory Interpretation

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