1517161 (Refugee)

1517161 (Refugee) [2017] AATA 2574 (8 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517161
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Lilly Mojsin
DATE:8 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 November 2017 at 11:04am

CATCHWORDS
Refugee – Protection visa – Fiji – Ethnicity – Melanesian Vanuatu descendant – Social group – Member of anti-Fijian government organisation – Fear of political and racial discrimination
LEGISLATION
Migration Act 1958, ss 5H-LA. 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] December 2015 to refuse to grant the applicant a protection visa [PVA] 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] July 2015. The delegate refused to grant the visa [in] December 2015.
The applicant appealed that decision to this Tribunal on 15 December 2015.
The applicant appeared before the Tribunal on 14 September 2017 to give evidence.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF Claims and evidence
In his PVA the applicant states that
·    he was born in [year] in [City 1 of Fiji]. He is a citizen of Fiji, Roman Catholic and a Vanuatu descendant. He married [in] March 1998. He has lived all his life at the same address, in [City 1]. He attended primary school and high school in [City 1]. The applicant has worked [In] [a government agency], as [Occupation 2] for [another government agency], as [Occupation 2] at [a third government agency] then in January 1999 he worked for [a private company] until December 2002 and from January 2003 he owned his own [business].
·    The applicant claims that he fears for his life because of political and racial discrimination levied at Vanuatu descendants. Vanuatu descendants are not given the same rights and privileges of the indigenous Fijian community, During the last election they were threatened by the military that if they did not vote for Fiji First they would be vacated from their land. He was present during the 1990 coup when stones were thrown on his uncle’s home, but he was not hurt. His family arrived in Fiji in the 1920s and were given land but were relocated in 1952. The applicant fears being evicted from the land.
·    The authorities who are in power at the moment, in the last election, told them that if they were to remain on the piece of Crown land on which they lived they were to vote for Fiji First. Their future lies in the election result. There is no future for him or his family as they fear intimidation and uncertainty.
·    The applicant commented in social media about Rajendra Chaudhry on Facebook. The applicant supports everything Rajendra Chaudhry is saying about the current regime, and Chaudhry was very vocal about what has happened and what is currently happening in Fiji, the applicant believes another coup will happen shortly. The current authority is corrupt and the court system is one of the worst in the world since the military overrules at will all judicial and government departments. The police have no authority over the military and people are left on their own.
The applicant’s wife and children remain in Fiji. The applicant’s brother lives in Australia.
Attached to his PVA:
·Letter from [Association 1] (Fiji Community) stating that their main aim is for Vanuatu descendants to gain recognition, both by government and the community. In Fiji Vanuatu descendants are not recognised as Fijians. They are categorised as others but they hold Fijian passports. They are not entitled to the rights and privileges that Fijians are entitled to, for example education, scholarship, employment opportunities, land ownership.
·Letter from the government of Vanuatu giving consent to acquire copies of the official documents relating to the history of “black birding’’
·Pamphlet from CANA Communities
·Letter of support from [a] Church
·Letter of support from [a] Parish
·[Association 2] attesting to the applicant residing in an unstable area, as the government of the day has not permanently secured the piece of land occupied despite ongoing dialogue
·Letter dated [in] February 2009 from Vanuatu MP to the Minister for Education in regard to government assistance with scholarships
·Family tree
·[Media company] outline of [Association 1]
·The Fiji coup and the politics of ethnicity
·Fiji timeline
·Birth certificates and marriage certificates
·Letter dated [in] April 1983 from [Organisation 1] certifying that [Ms A] has entitlement to be granted citizenship of Vanuatu
The applicant attended a Department interview. The recording of that interview is held on the Department file.
Attached to his application for review the applicant has provided the following
·Article from [a website] dated [in] October 2015 allegedly showing the applicant protesting against the Prime Minister Bainimarama and copies from his Facebook page dated [in] May 2015
·Article by former police chief Ben Groenwwald about Fiji military interference
·Article [name of article] dated [in] October 2015 stating that the protest fizzled out with only a handful of protesters showing up
·Statement by applicant’s wife stating that while her husband is away she runs a small [business] and [another business]. They own their own [transport] business which has been facing a lot of problems since it met with an accident in 2011. They tried very hard to pay costs of maintenance as it was their only source of income, they managed to get it back on the road again. In 2014 there was another accident on the road, the cost of repairs and maintenance was higher than the first accident. Problems they are facing now are promises from the government of free water, free electricity, but that has not happened. Their daughter has spoken her mind and whenever there is news regarding the military she is always scared. She can stay home for safety but misses out on her classes.
·Statutory declaration by the applicant that he had a motor vehicle accident [in] October 2014, his vehicle was not insured and it was his only source of income
·Police report regarding the accident confirming the driver and passengers were taken to hospital for observation. Case is still pending investigation
·Photographs of damaged [vehicle]
·Black and white photos the applicant claims were from Facebook taken the day before the protest and allegedly showing him wearing the same shirt as the person in the photo protesting and wearing the same shirt subsequently in November 2015
·Reference from [an organisation] that the applicant is a member
At the Tribunal hearing, held on 14 September 2017, the applicant provided the following documents
·Amnesty International Annual Report Fiji 2016/2017
·Amnesty International report, “Fiji crackdown On Torture Not Protests’’ dated 26 June 2017
·ABC News Fiji’s Bainimarama ‘Still Dogged by Rights Issues 10 Years on from His Coup’, 5 December 2016
·Fiji Times Online, ‘Politics 2017 and Beyond’, 17 December 2016
·DFAT, Fiji Country Brief
·Fiji 2017 Crime and Safety Report, 22 May 2017
·Guardian, ‘Fiji’s Police and Military Using Torture With Near Impunity’, Amnesty International, 5 December 2016
The applicant told the Tribunal that in 2014 he came to visit his brother in [Australia]. He was in Australia for 3 months, he returned. He came to Australia in 2015 again to visit his brother. His situation at home was not that good so he decided to apply for a PVA. He applied for PVA because there was critical upheaval in Fiji. When asked what critical upheaval had occurred, he responded that during the campaign in 2014 they were promised the land and nothing happened. They are just a minority group.
The applicant confirmed that he is working in Australia. He works in [location] in the [industry type].
He confirmed that nothing happened to him when he lived in Fiji.
It was put to him that whilst he resided in Fiji he did not have an adverse political or religious profile. He responded “Yes”.
When asked about the political organisation that he claims to have joined in [a city in Australia], he said it was called [Organisation 2], it is a group that safeguards people from political things. Some of them are ex-military officers who seek refuge. [Ms B] leads the group. He joined the group in 2015, he joined the group as back home he cannot say anything. The army rules there and there is torture. He is just a member of the group. They meet weekly but [Ms B] is in [Australia] at the moment.
He attended a protest against the Prime Minister in [Suburb 1] in 2016. He fears harm as they were holding up placards. The soldiers who came with Bainimarama took photos and they said “when you come home we have all pictures and will take you straight to the barracks”.
The applicant said that there were thousands of people at the demonstration which was organised by the Indian community. He said that he was holding a placard saying “stop the violence, stop the torture” and underneath those words was picture of a bloodied person. This photo was published all over social media, it was on Mr Chaudry’s Facebook. When asked for the photo he identified a photo from a [blog][1]. It was put to the applicant that this photo does not name or identify him. He pointed to a person in that photo and stated that it was him. It was put to the applicant that in the photo the person’s arm was covering his face. Further, the article stated that only a handful of people were seen protesting and Bainimarama said he could not hear the protesters as they were quite far away.
[1] 1517161 folio 17
I put to the applicant that if I formed the view he had attended the protests and joined the group for the sole purpose of furthering his refugee claims, then I must disregard that conduct. I put to him that he had never voiced a political opinion or joined any political movements in Fiji. He said they cannot voice their views in Fiji as others report on them and then the soldiers come.
I also put to the applicant that DFAT has stated that personal blogs and other forms of social media, both for and against the interim government, operated with relative freedom, unlike traditional media. He did not agree.
I asked the applicant what he feared about returning to Fiji and he said that it was because he attended the protest and what the soldiers had said to him.
I put to the applicant that the Fijian government arrests and prosecutes persons accused of inciting sedition or urging political violence in Fiji. I put that he was not a person of that profile. He nodded his head in agreement. I put that those returning to Fiji suspected of being involved in such activities would be arrested and prosecuted. He agreed. I put that DFAT has confirmed that those who are at risk are high profile public figures, leaders of organisations and he did not meet that profile. He agreed. I put to him that DFAT was not aware of reports of ordinary people known to be opposed to the regime being subjected to harm unless they had also publicly expressed opposition to or criticism of the regime and he does not fit that profile.
I discussed his accident with his [vehicle], in 2014. He said that his passengers were injured and they were all taken to hospital, he did not have insurance, the [vehicle] was repaired but not properly. I put to the applicant that as the [vehicle] was not in running condition he came to Australia to work and earn an income. I put to him that if he applied for a PVA he obtains work rights in Australia.
I discussed with the applicant rights of Vanuatu descendants. He said that during the last election they were threatened by the military that if they did not vote for Fiji First they would be vacated from their land. He said that they are not entitled to the rights and privileges that Fijians are entitled to for example education scholarship, employment opportunities, land ownership. I responded that he had completed primary school and high school and he had been employed in various positions in the Fijian civil service and then he ran his own business.
I put to the applicant that Fijian Citizens can freely own property and establish businesses, he agreed. He also stated that Vanuatu descendants do not have the same privileges. He said they barely survive. When put to him that a lot of Fijians also barely survive, he agreed. He confirmed that he and his family live on Crown land with a lease.
I put to the applicant that Bainimarama had won the last election and the general view was that it was a fair election. I put that Fiji’s 2013 Constitution contains a comprehensive Bill of Rights. Among others, the Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights are justiciable in the High Court.
The applicant said that he wants to voice his concern about what is happening back home but the political side is what people do not see. He expressed his concerns about the next elections. If he wanted to start a group he would not be able to. He is concerned that the soldiers were taking photographs. He thought he was just protesting.
Asked if he has any entitlement to be granted citizenship of Vanuatu, he said that he does not think he has any entitlement.
REASONS AND FINDINGS
The applicant, is an ethnic Melanesian Vanuatu descendant. I note that the applicant provided a document to the Tribunal from [Organisation 1] certifying that a person, [Ms A], has entitlement to be granted citizenship of Vanuatu. She moved to [a city in Vanuatu] and reclaimed her Vanuatu citizenship. The applicant does not claim to have sought or reclaimed citizenship of Vanuatu.
I accept that the applicant is a national of Fiji and is not a national or citizen of any other country or has a right to enter and reside in any country other than Fiji. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant's “receiving country” for the purposes of s.36 (2)(aa).
I accept that Vanuatu descendants are not given the same rights and privileges as those of the indigenous Fijian community and some suffer varying forms of discrimination compared to the indigenous Fijian population that include education scholarship, employment opportunities, and land ownership. I accept that politicians can and do make promises in order to obtain votes from citizens and that once elected do not always keep those promises. Therefore I accept that the authorities who are in power at the moment, in the last election told the Melanesians, that if they were to remain on the piece of Crown land on which they lived, they were to vote for Fiji First. The applicant provided to the Department letters of support from other Vanuatu descendants who opine to seeking to change the situation for Vanuatu descendants and gain recognition by the Fijian government.
By way of background, Fiji’s total land mass is roughly 11,352 square miles. The land situation in Fiji is complex. Eight percent of land is freehold; the rest is indigenous and government land that can only be leased. Ethnic Fijians communally hold approximately 87 percent of all land. Crown land owned by the government account for 4 percent, while the remainder is freehold land, which private individuals or companies hold. All indigenous land, commonly referred to as iTaukei land, is held in a statutory trust by the iTaukei Land Trust Board (TLTB) for the benefit of indigenous landholding units.
Fiji passed a Land Sales Act in December 2014 that restricts ownership of freehold land inside city or town council boundaries areas to Fijian citizens. To improve access to land, the government established a “land bank” in the Ministry of Lands under the land use decree for the purpose of leasing land from indigenous landowning units through the TLTB and subleasing the land to individual tenants for lease periods of up to 99 years. As of November 2014, 8,579 hectares of land had been registered with the Land Bank. The Land Bank, however, began leasing land directly to tenants, without TLTB involvement and sometimes with undue pressure on landowners to “deposit” their land in the land bank. In 2011 revisions were made to the formula for distributing lease proceeds to indigenous landowners, abolishing the system of chiefly privilege in land lease income distribution and providing for a “one person, one share” system. This change contributed to an increase in lease renewals, as individual members of landowning units received a greater share of lease monies than under the previous system. The constitution includes other new provisions protecting land leases and land tenancies, but observers noted that the provisions seemed to have unintended consequences, including weakening the overall legal structure governing leases and other such contracts. The availability of Crown land for leasing is usually advertised. This does not, however, preclude consideration given to individual applications in cases where land is required for special purposes. Government leases for industrial purposes can be up to 99 years with rents reassessed every 10 years. TLTB leases for land nearer to urban locations are normally for 50-75 years. Annual rent is reassessed every five years. The maximum rent that can be levied in both cases is 6 percent of unimproved capital value. Leases also usually carry development conditions that require lessees to effect improvements within a specified time.
According to a 2009 report sourced from Radio Australia Pacific Beat[2], there are about "12,000 descendants of people from the Solomon Islands, Vanuatu and Papua New Guinea who were taken to Fiji during the black birding era from 1864." Many have subsequently married Fijian women and adopted the Fijian language and customs, but cannot own land and mostly live in poverty in squatter settlements in or near Suva. They lack access to education and as a consequence are often unemployed or work on a casual or seasonal basis, often in the cane fields. The latest overview of Fiji from Minority Rights Group International[3] states that "the small Melanesian community — descendents of Solomon Islanders and New Hebrideans — retain a distinct identity", that "many cannot claim land rights", and that the community "are organising to claim improved livelihoods."
[2] Seke, S. 2009, 'Stateless and poor Melanesians in Fiji face costly land purchase', Radio Australia Pacific Beat, 19 March
[3] 'Fiji Islands Overview' (undated), in World Directory of Minorities, Minority Rights Group International website
The 1997 Fiji Poverty Report[4] by the United Nationals Development Programme notes that the Solomon Islander communities in Fiji "include some of the most disadvantaged groups" in the country. The UNDP report also states that "poorest communities in Fiji are those with no secure tenure over land or sea resources, employment, or business", which "include descendants of other Pacific islanders" such as Solomon Islanders. For these communities, "Low wages and poor working conditions continue to entrap them in their impoverished circumstances."
[4] United Nations Development Programme 1997, 'Income distribution and inequality in Fiji', in Fiji Poverty Report, 1 December type="1">
A report from 2009 indicated that some Solomon Islander squatter communities are being forced off the land they have occupied for up to 100 years to make way for development projects. Families are being temporarily relocated to other areas near Suva, and will reportedly have first option to buy plots of land in the new developments. The price of the developed land is likely to be beyond most inhabitant communities. A March 2009 article from the Fiji Times Online reported that the Fijian Housing Authority was prepared to forcibly remove squatters from their settlements if they continued to defy eviction notices.[5]
[5] 13 'Force is last resort' 2009, Fiji Times Online, 23 March >
Another March 2009 article[6] quoted a spokesman for the descendants who stated that he was happy and satisfied with the assistance provided to the evicted squatters by the Housing Authority. The same article quotes the Housing Authority CEO who claims that the families will be moved back to the land post-development; no mention is made of squatter families needing to buy the land. Nonetheless, one squatter community won a 2007 court case which allowed them to remain on land near Suva which they had occupied for nearly 70 years[7].
[6] 'Solomon Community in Fiji Wants to Return Home' 2009, Solomon Times Online, (source: Fijilive.com), 24 February 'B1ackbirders' descendants stay on: Court' 2007, Fiji Times Online, 2 February >
Department of Foreign Affairs and Trade's Country Report on Fiji[8], dated 14 April 2015, does not suggest that persons of mixed islander heritage are harmed or discriminated against. However, reports suggest that ethnic Fijians receive preferential treatment in Fiji. The reports contains the following:
In addition to Indo-Fijians and indigenous Fijians, Fiji's population also includes populations of Rotumans, Chinese, Europeans, other Pacific Islanders and many of mixed race. These minority groups do not generally face official or societal discrimination, though the protections which apply to indigenous Fijians do not always provide protection to these minority groups
[8] Department of Foreign Affairs and Trade 2015, Country Report: Fiji
I am not satisfied that the applicant suffered discrimination amounting to serious harm in Fiji, in employment or education. The applicant attended primary and high school in Fiji, he was employed in various government positions, [a private] company and then he commenced his own [business]. The applicant had 2 [vehicle] accidents, the last one in 2014 when both he and the passenger were taken to hospital for observation. He was not able to make a living after the 2^nd accident. He said that the [vehicle] was uninsured and it was not repaired properly.
In regard to land ownership in Fiji, whilst the applicant did not own his own land, he lived with his family on Crown land and paid a lease fee. The family has lived on the land since 1952. Whilst I accept that Fijian laws do not allow non-ethnic Fijians to have ownership of indigenous land, because iTaukei land is held in a statutory trust by the iTaukei Land Trust Board (TLTB) for the benefit of indigenous landholding units, Melanesians are not prohibited from leasing Crown land or owning freehold land. Fiji passed a Land Sales Act in December 2014 that restricts ownership of freehold land inside city or town council boundaries areas to Fijian citizens. Melanesians are Fijian citizens.
I do not accept that being unable to run one’s own business [due] to poor repairs caused by not being insured after a motor vehicle accident or being treated differently to native Fijians in relation to land ownership or being told that if they were to remain on the piece of Crown land on which they lived they were to vote for Fiji First amounts to serious harm as explained in S.5J(5). It does not involve a threat to the applicant’s life or liberty, or significant physical harassment of the applicant, or significant physical ill-treatment of the applicant or significant economic hardship that threatens the applicant’s capacity to subsist or a denial of access to basic services, where the denial threatens the applicant's capacity to subsist or a denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist. Further, the applicant has education to secondary level, he was worked in the civil service. Melanesians are able to buy land.
I accept that the applicant is a Roman Catholic. The applicant did not have an adverse political or religious profile or an imputed adverse political profile in Fiji prior to his departure to Australia. I accept that the applicant was present during the 1990 coup when stones were thrown on his uncle’s home, but he was not hurt and he does not suggest that this was anything other than a one off incident.
The applicant’s wife has stated that their daughter has spoken her mind and whenever there is news regarding the military she is always scared and she can stay home for safety but misses out on her classes. The information before me is that the applicant’s daughter and her mother reside in Fiji. The applicant does not claim that they have suffered serious harm as explained in s.5J(5) and none is suggested by the evidence before me.
The applicant was not harmed prior to leaving Fiji in 2015. I am satisfied that the applicant left Fiji in order to work in Australia and earn an income. I am satisfied that the applicant was not persecuted for reasons of his race, religion, nationality, membership of particular social group or political opinion in Fiji
I am required to consider if the applicant, an ethnic Melanesian from Vanuatu, would suffer serious harm or would suffer significant harm in the future if he were to return to Fiji. The applicant does not suggest that he would re-open [his] business on his return.
I accept that the Melanesian population in Fiji suffers poverty but the ethnic Fijian population also suffer poverty. The applicant received an education, worked in the civil service and then owned his own business. DFAT states that Fiji's economy has recovered to some extent from the global economic recession and general atmosphere of uncertainty under the interim government. Asian Development Outlook 2017[9], states that growth continues to be supported by fiscal stimulus, public investment, higher visitor arrivals, and continuing reconstruction after Cyclone Winston in 2016—all supported by low interest rates and a sound external position. Meanwhile, Moodys changed the outlook from positive to stable, recognizing Fiji’s improved institutional framework and effective policies for economic growth. Therefore I find remote that the applicant will suffer from poverty that would amount to serious or significant harm on his return to Fiji.
[9]
Whilst the applicant claims that he fears being evicted from the land, his family has been in occupation of the same land, as lessees since 1952. I accept that during the last election the Fiji First party, who won the elections, threatened Melanesians that if they did not vote for them they would lose their Crown land lease. That has not occurred. I have found no independent evidence to suggest that the Fijian government intends to remove the Melanesians from Crown leases. I am of the view that were it the situation it would be known to independent sources. Therefore I find remote the chance that the applicant would be evicted from the land. Further, the Fijian government has enacted legislation that allows Fijian citizens, such as the Vanuatu Melanesians to lease land. They are also able to buy land.
The applicant claims that he supports everything Rajendra Chaudhry is saying about the current regime, and Chaudhry was very vocal about what has happened and what is currently happening in Fiji. Even giving the applicant the benefit of the doubt and accepting that he posted comments on a blog by Chaudhry, I have found no independent evidence to suggest that persons who post comments on political blogs and on Facebook pages of Rajendra Chaudhry suffer serious or significant harm in Fiji. I am of the view that were it the situation it would be known to independent sources. Further, DFAT has stated that personal blogs and other forms of social media, both for and against the interim government, operate with relative freedom, unlike traditional media. Whilst the applicant does not agree, I prefer the view of DFAT. I find remote the chance that the applicant would suffer serious or significant harm for posting on political blogs on Facebook or on a blog by Chaudhry on his return to Fiji.
The applicant claims that he joined an anti-Fijian government organisation in Australia, [Organisation 2] [Ms B], he attends weekly and he attended a demonstration against Bainimarama in [Suburb 1]. He claims that at the demonstration [the] soldiers took his photograph and threatened him that when he came back to Fiji he would be harmed.
The country information indicates groups, [Organisation 2] and [Organisation 3], were established by [Ms B]. [Organisation 2] stated that it is a [certain] organisation. Its Facebook page describes it as a “[deleted]”[10]. [Organisation 3] supports self-determination for the 14 provinces of Fiji as Christian states and is associated with the secessionist movements in two provinces. It provides funds for the legal costs of 60 people in Fiji facing court charges relating to the secessionist movements activities in 2015. [Ms B] has been banned from entering Fiji because of her involvement in the attempt to form a Christian state in Ra and Nadroga.
[10] [Source deleted.]
The applicant’s explanation about the group was vague, only stating that it is a group that safeguards people from political things. Some of them are ex-military officers who seek refuge and they are attempting to form a state in Ra. I am of the view that were the applicant to have attended the meeting weekly he would have had a greater knowledge about the activities of the organisations.
The applicant claims he attended a protest against Prime Minister Bainimarama in [Suburb 1] in 2016. He fears harm as they were holding up placards. The soldiers who came with Bainimarama took photos and they said “when you come home we have all pictures and will take you straight to the barracks”. He said that he was holding a [placard]. He claims that this photo was published all over social media, it was on Mr Chaudry’s Facebook. When asked for the photo, the applicant identified a photo from [a website][11].
[11] AAT 1517161 folio 17
The applicant has provided black and white photos he claims were from Facebook, one allegedly taken the day before the protest showing him wearing the same shirt as the person in the photo protesting and another photo wearing the same shirt in November 2015. I place no weight on a photograph that the applicant claims shows him at a demonstration at [Suburb 1] in 2016. The applicant cannot be identified in that photograph, it does not name him or identify him and it shows a person with his arm covering his face. I also place no weight on the claimed photos of the applicant dated [in] May 2015 and [in] November 2015. The photos are not clear. They are all black and white and I am unable to ascertain if it is the same shirt that appears in all photos. I am unable to be satisfied that the person in the photo is the applicant.
The applicant said that there were thousands of people at the [demonstration]. He provided an article in relation to the demonstration and it stated that only a handful of people were seen protesting, Bainimarama said he could not hear the protesters as they were quite far away. In light of this conflicting evidence about the number of participants at the demonstration and my findings that I am not satisfied the applicant is the person in a photo at the demonstration, I do not accept he attended the demonstration.
In light of the applicant’s vague explanation of [Organisation 2] I do not accept that he joined this organisation, or that he attends weekly and I do not accept that he attended a demonstration in [Suburb 1] in 2016. Therefore I do not accept that the Fijian military took photos of him and threatened him with harm on his return to Fiji. I am not satisfied that the applicant has voiced an anti Fijian government opinion in Australia.
The applicant does not claim to have any involvement in any political movements when he was in Fiji, he had never voiced a political opinion or joined any political movements in Fiji. He said they cannot voice their views in Fiji as others report on them and then the soldiers come. DFAT states that although there continue to be limits on freedom of expression of political opinion, in late 2014 this was more open than in previous years and “public commentary on political issues, including criticism of government policies, is permitted and occurs regularly”. As the applicant has not voiced a political opinion in Australia or in Fiji I find remote the possibility that the applicant will voice a political opinion on his return to Fiji.
The Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji. In the case of a person returning to Fiji accused of or suspected to have been involved in such activities, it is possible that they would be arrested and prosecuted for such activities. DFAT confirms that those at risk are high-profile public figures, including the leaders of organisations, that might be seen to challenge the government's authority or undermine its legitimacy. DFAT was not aware of reports of ordinary individuals who were 'known' to be opposed to the regime being subject to harm unless they had also publicly expressed opposition to or criticised the regime. When put to the applicant at hearing that the Fijian government is willing to arrest and prosecute people involved in inciting sedition and urging political violence and he does not fit that profile, he agreed
The independent evidence[12] is that Fiji’s 2013 Constitution contains a comprehensive Bill of Rights. Among others, the Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights are justiciable in the High Court.
[12] DFAT Fiji April 2015
The independent evidence provided by the Department of Foreign Affairs and Trade (DFAT) indicates that although there continues to be limits on the freedom of expression of political opinion, in late 2014 this was more open than in previous years and “public commentary on political issues, including criticism of government policies, is permitted and occurs regularly”.
The applicant believes another coup will happen shortly. The current authority is corrupt and the court system is one of the worst in the world, since the military overrules at will all judicial and government departments. The police have no authority over the military and people are left on their own. The information provided by DFAT is consistent with other reports before the Tribunal, including The Freedom in the World 2015 – Fiji report, published by Freedom House on 15 April 2015, stating that citizens of Fiji enjoy broad freedom to travel, live, work, and seek education inside and outside the country. Citizens can freely own property and establish businesses. Freedom in the World 2015 – Fiji report, confirms that the interim government imposed severe restrictions on freedom of assembly and association, but states that these were gradually relaxed in the two years leading up to the general election. Police permits were still required for public gatherings and protests, but there were no reports of denials or last minute orders to cancel events in 2014, as opposed to previous years. The same report states that there were no confirmed reports of government restrictions on private discussion of political matters or other sensitive topics in 2014.
DFAT states that although there continue to be limits on freedom of expression of political opinion, in late 2014 this was more open than in previous years and “public commentary on political issues, including criticism of government policies, is permitted and occurs regularly”.
The applicant does not claim to have a high public profile in any organisation. The applicant does not claim to have any leadership role. Even were I to accept that the applicant has attended one demonstration and attended [Organisation 2] weekly, and I do not, I do not accept such activity would bring him to the attention of the government in Fiji if he returns to Fiji or that he would be perceived as being anti regime because he is a member of [Organisation 2] or [Organisation 3].
DFAT[13] has not been able to determine whether [Organisation 2] or [Organisation 3] are known in Fiji. It is noted that the Australian government has received no formal approach from the Fiji Government to extradite Fijian/Australian nationals in respect of the Christian secessionist movements.
[13] [Source deleted].
The Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji. In the case of a person returning to Fiji accused of or suspected to have been involved in such activities, it is possible that they would be arrested and prosecuted for such activities. DFAT confirms that those at risk are high-profile public figures, including the leaders of organisations, that might be seen to challenge the government's authority or undermine its legitimacy. DFAT was not aware of reports of ordinary individuals who were 'known' to be opposed to the regime being subject to harm unless they had also publicly expressed opposition to or criticised the regime. When put to the applicant at hearing that the Fijian government is willing to arrest and prosecute people involved in inciting sedition and urging political violence and he does not fit that profile, he agreed. I do not accept that the applicant would be viewed by the Fijian authorities as inciting sedition and urging political violence.
I give weight to the country information[14] which indicates there is now much greater freedom in terms of expressing robust opposing political views in Fiji.
[14] DFAT country report, Fiji, 14 April 2015
I also accept the independent evidence that Prime Minister Bainimarama has at times made threatening comments in relation to those he perceives as his opponents, I am not satisfied that the evidence indicates that the Fijian government has any interest in [Organisation 2] or [Organisation 3’s] members. Furthermore, based on the applicants' limited knowledge of the organisation, I consider that his claim to have involvement in the organisation was in all likelihood inspired to a significant degree by his desire to embellish his claims for protection in Australia.
DFAT advice also suggests that people who have come to the attention of the authorities and been subjected to various forms of punishment in the past were also at risk of future harm:
This category of people is at a reasonable risk of harm on their return to Fiji. Individuals who have been identified in the past by the regime as opponents or critics would generally be closely monitored by the regime. Such individuals would be well known to the regime, particularly if they have suffered punishment in the past. We have heard of ongoing harassment of individuals whilst they are abroad from those in the regime threatening them should they return to Fiji.
As I do not accept that the applicant came to the attention of the authorities in the past or has been subjected to punishment I do not accept that that there is a real chance or risk he will suffer serious or significant harm in the reasonably foreseeable future.

I am of the view that the applicant does not hold a genuine anti-government political opinion or that he will seek to have any involvement in any anti-government political movements in Fiji.
I am not satisfied there is a real chance that the applicant would face serious harm amounting to persecution for reason of his real or imputed political opinion if he were to return to Fiji now or in the reasonably foreseeable future.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
I also find that the applicant is not entitled to complementary protection. I do not accept that the applicant engaged in political activities in Australia or in Fiji. Even were I to accept that the applicant had engaged in political activities by the applicant's membership of [Organisation 2], and I do not, there is nothing before me to indicate that such activities would be of any adverse interest to the authorities in Fiji. I am not satisfied that attending one protest in [Suburb 1] will be such that there is a real risk that the applicant will suffer significant harm as a result of his limited involvement in the groups.
While the above reports indicate that under access to education and other services adversely affect the Melanesian population in Fiji in general, the applicant's educational, employment and international travel history strongly indicate that he has not faced those harsh conditions and his past experiences along with his self-employment would suggest that he would not be likely to face those harsh conditions in the future. While there are reports that Melanesian communities have been relocated from land in the past to make room for development, the applicant has lived on the same land since birth, his family have occupied the land since 1952 and there is no reliable information to indicate that the applicant would be relocated from his land in the foreseeable future.
As I have rejected the entirety of the applicant’s claims. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. I find that the applicant does not meet the complementary protection criterion in s.36(2)(aa).
CONCLUSIONS
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
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 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.
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.
…

[2017] AATA 2574

8 November 2017

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