1517279 (Refugee)

[2018] AATA 2880

1517279 (Refugee) [2018] AATA 2880 (2 May 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517279

COUNTRY OF REFERENCE:  Fiji

MEMBER:James Silva

DATE OF DECISION:  2 May 2018

DATE CORRIGENDUM SIGNED:             14 August 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 72 is amended to read: Accordingly 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 Fiji, there is a real risk that he will suffer significant harm: s.36(2)(aa).

James Silva
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517279

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 5:25pm

CATCHWORDS
Refugee – Protection visa – Fiji – Race – Indo-Fijian – Social group – Victim of physical harm, robbery and discrimination – Fear of physical harm by the army – Decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his [age], an ethnic Indian from Fiji.

2. The applicant arrived in Australia on 13 May 2014, as the holder of a [temporary] visa, and he was granted two further [temporary] visas in August and December 2014. He applied for a Protection (Class XA) visa on 1 April 2015. On 18 November 2015, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 14 February 2018.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant is an Indo-Fijian fisherman. He claims that in July 2013, a group of Fijians attacked him and some colleagues, motivated by anti-Indian sentiment. They robbed and [attacked them]. The applicant suffered physically and psychologically. The police later identified and charged one of the attackers, the son of a village chief. Another, an Army officer, later threatened to kill the applicant. He is afraid of returning to Fiji, as these people are still looking for him and may kill him. The applicant also claims more generally to fear discrimination as an Indo-Fijian.   

   Background

8. The applicant is [age] year old man [Fiji]. He is an ethnic Indian and Hindu. He speaks Hindi, and told the Tribunal that he speaks a little English and Fijian.

9. The applicant lived in [Town 1] from a young age to his departure for Australia in June 2014.

10. The applicant attended an Indian primary school [for] three years, up to [year]. He gives some information about past employment, which includes as [an occupation] ([year range]), and as a fisherman [employed] by [Company 1], from 2004 to 2014.

11. The applicant has never married or been in a de facto relationship. He nominates as his close relatives his mother, his older brother and two uncles, who live in [Town 1]. The applicant said that his mother relies on financial and personal assistance from his brother and sister-in-law in Fiji.

12. The applicant said that, in Australia, his close friend [Mr A] gives him some money. Later in the hearing, the applicant said that his mother is currently in Australia, nearing the end of her three-month visa. He said that she is staying with an ‘aunt’ (not a blood relative). The Tribunal is not confident that has a full or reliable overview of the applicant’s family and social circumstances in Australia. 

13. The applicant’s parents separated when he was about [age] years old. His father previously worked in [a certain industry]. He has remarried and lives with his wife and [children] in [location]. The applicant said that, while he was in Fiji, he occasionally saw his father at funerals or Hindu events.

14. The applicant holds a Fiji passport issued in [2014], which he brought to the hearing. He confirmed to the Tribunal that he did not apply for a Protection visa until April 2015 (he signed his application form on 30 March 2015).

15. In relation to his activities in Australia since arriving in June 2014, the applicant said that he believes he has no permission to work here. He stays with [Mr A], and helps around in the household generally. [Mr A] gives his some money from time to time. The Tribunal found the applicant’s account of his activities in Australia over more than three years to be guarded and unpersuasive. It is not satisfied that he has provided any real insights into this.

    Evidence

16. The evidence before the Tribunal includes the following relevant material: -

    §  The applicant’s protection visa application form, lodged on 1 April 2015. The completed form omitted several pages, which the applicant provided to the Department later (and which appear on later folios of the Department file).

    §  Identity documents: - a copy of the biodata page of his Fiji passport; the applicant presented his passport at the Tribunal hearing.

    §  The applicant’s protection claims are set out in brief handwritten comments on the application form, and a more detailed statement attached to the application form.

    §  The applicant attended a protection visa interview (‘Department interview’) on 29 October 2015, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 18 November 2015. The delegate refused the application mainly on credibility grounds.

    §  Review application form dated 14 December 2015.

17. The applicant appeared before the Tribunal on 14 February 2018, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant is not represented in this matter, and did not present any witnesses. His friend [Mr A] accompanied him to the hearing. He attended part of the hearing as a support person, but (at the applicant’s and his suggestion) was not present for the discussion of the substantive claims.

    Receiving country

18. The applicant claims that he is a national of Fiji. He has provided a copy of his Fiji passport, and he appears to be familiar with that country. He speaks Hindi, which is a minority language of Fiji, as well as some Fijian and English. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

19. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility and Guidelines on Vulnerable Persons both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    The applicant’s presentation

20. At hearing, the applicant appeared as a somewhat unfocused witness who does not have strong presentational skills. The Tribunal notes that this may be attributable in part to his lack of formal education or his lack of familiarity with the hearing setting. The Tribunal had particular difficulty eliciting from the applicant a clear chronology of the alleged events in July 2013, and on several occasions he gave indirect or digressive answers. The Tribunal has before it no medical evidence to indicate that the applicant has any mental health problems that impair his capacity to give evidence and present arguments, and observed nothing to suggest that this was the case. It considers that he had a reasonable opportunity to present his case, including through repeating and clarifying his statements were necessary.

21. The applicant’s friend [Mr A] accompanied him to the hearing as a support person. The exact connection between the applicant and [Mr A] is unclear, but the applicant suggested that [Mr A] helped him travel to Australia and has supported him since his arrival. [Mr A] initially offered to assist the Tribunal in communicating with the applicant, for instance, by re-framing questions or helping with interpretation. The Tribunal declined this offer, given the presence of an accredited interpreter. Although [Mr A] was not present for most of the hearing (in part, due to the private nature of the applicant’s claims), his attendance appears to have reassured the applicant.

22. In his original statement of claims, the applicant wrote that he lived in fear in [Fiji]. He appeared to link this with [details deleted], as well as the general discrimination he had experienced as an Indo-Fijian. At hearing, he said that he has not received medical attention in Fiji or Australia, related to the claimed [attack] or for any other reasons. In relation to his mental [health], he reiterated that he had mental problems in Fiji, such as lack of concentration and insomnia. He contrasted this with his situation in Australia, where he feels safe.

23. The Tribunal appreciates that claims involving [attack] require particular [care].  In the present case, the applicant claimed he (and some colleagues) was subject to a violent [attack]. The Tribunal took steps to deal with this claim sensitively during the hearing. In fact, the applicant raised the alleged [attack] [on] several occasions, for instance, when explaining why he had not received medical treatment after a serious [attack] (that also resulted in injuries over his entire [body]). For reasons set out below, the Tribunal considers many aspects of the alleged [attack] [problematic].       

24. Overall, the Tribunal has significant doubts about the truthfulness of the applicant’s claims and evidence. It is firstly concerned that the applicant has been unforthcoming about his circumstances in Fiji and Australia. This means that there are gaps in his account (for instance, his activities before coming to Australia), and broad questions about his candour. Second, it formed the impression that he had the basic outline of a protection claim, but when asked for details, improvised in an ad hoc way, rather than draw on actual lived experiences. Finally, the Tribunal found much of the applicant’s evidence vague and lacking in context.

    The applicant’s conduct and his need for protection

25. The applicant’s claims related primarily to an incident in early July 2013, but he did not seek protection until late March 2015.

    §   The applicant’s passport, which he presented at hearing, was issued in [2014], some nine months after the alleged incident that compelled him to leave Fiji. He explained that he waited until his ‘friend’ ([Mr A], he implied) sent him money for that purpose. Up till then, he had been living in his village, afraid although without experiencing any further incidents.

    §   The applicant arrived in Australia in June 2014, but did not apply for protection for almost a year later. He told the Tribunal that he was living in fear during this period, but (implicitly) did not know what to do. He claimed that he learned about the availability of protection only when his sister-in-law’s brother [Mr B], came to Australia and told him about it. ([Mr B] helped the applicant complete his application form.) In other evidence, however, the applicant said that he had been living with [Mr A]; he did not give any insight as to why he had not heard about protection earlier, from [Mr A] or others.

26. The applicant’s conduct in Fiji after the alleged incident in July 2013 and his delayed lodgement of a protection visa application after his arrival in Australia raise serious doubts about his need for protection, and indeed the credibility of his claims. The Tribunal finds his brief comments - suggesting that he relied on [Mr A] to fund his passport and travel, and later on, another person to give him information about protection in Australia – unpersuasive.   

27. The Tribunal’s full assessment follows.

    Violent assault by ethnic Fijian men

    Assault

28. The applicant claims that [in] July 2013, a group of Fijian men confronted him and two friends when they were in their boat, sheltering from a storm. These men beat the applicant and his friends, [attacked] them, and left them with physical [injuries].

29. The applicant gave details of the incident in his written statement, at the Department interview and at the Tribunal hearing. At hearing, the applicant said that [Mr B] had recorded some of the details incorrectly on the written statement; the Tribunal notes these where appropriate. The Tribunal’s summary of the incident follows.

    §   [In] July 2013, the applicant and crew members were deep sea fishing. With bad weather pending, they anchored in shallow waters on a [reef], in the late afternoon. They were there for several hours.

    §   Some Fijian men approached in a boat. The written statement refers to four men, but the applicant told the Tribunal that there were in fact five. The men were in plainclothes (but it turned out they were in fact army personnel).

    §   According to the applicant’s written statement, the men said that, as Indians, the applicant and his crew were not allowed to fish in the area without a license, and ask to see their papers. At hearing, the applicant stressed that the men abused him and his crew as Indians; he said that they did not ask to see proof of identity or other paperwork. Following the Tribunal’s prompts, he said that it was possible that they asked to see their fishing license, but he could not recall.

    §   The Fijians started seizing the meagre catch, ignoring the crew’s protests that they had caught the fish out to sea, and were only in the shallow waters to shelter from bad weather. Three of the Fijians then started to beat the applicant and his crew, over a period of about 20 minutes. At hearing, the applicant said the Fijian men punched them and hit them with sticks.

    §   The applicant claimed that, after the assault, he made the mistake of telling the men that he would report them to the police.

    §   In response, one of them laughed and said he is from the army and could easily kill them, as Indians, right away (with impunity). He said that he would teach them a lesson.

    §   The three men got back onto the applicant’s boat, and proceeded to, in the applicant’s words, [assault] the applicant and his [colleagues]. In response to the Tribunal’s questions, the applicant clarified that the three men attacked the applicant and his two colleagues individually. The other two men remained in their boat, laughing and egging on the attackers. The assault lasted for about an hour.

    §   The applicant wrote of the attack in the following terms: ‘We were so afraid… we cried and begged and were so embarrassed and ashamed by our ordeal as our manhood was taken away from us.’ 

30. The applicant said that the attackers left with a warning that they would kill the men if they reported the matter or spoke about it.

31. In his written application, the applicant indicated that he did not know the identity of these men until later. However, at the hearing, he said that one of the two Fijians in the boat observing the attack specifically called the name [Mr C], who was the man attacking the applicant. This contrasts sharply with his written claim that he only learned the name of his attacker later.

32. Consideration: There were some discrepancies between the applicant’s written claims and oral evidence, for instance, the number of Fijian men who attacked him and whether or not they initially demanded to see the fishing license. In isolation, these are not significant differences.

33. The Tribunal also has some initial reservations about the applicant’s account of the attack, such as: (a) the consequences of a sustained attack by three men, using their fists and sticks, on the applicant and his colleagues; and (b) the context in which five Fijian men perpetrated [the] [attack] of the applicant and his crew members. (The Tribunal’s further assessment of these claims is below.) 

    The immediate aftermath of the attack

34. The applicant wrote that after the attack, he and the crew were physically injured and in pain after the [assault]. However, when the weather improved, they resumed fishing for the next four days.

35. At hearing, he said that they travelled to a nearby location and moored their boat there. They had many injuries. The applicant said that he had serious injuries to his mouth, cuts and bruises to his shoulders, sides, chest and knees; a black eye; and abdominal pains from being thrown against a refrigerator and kicked in the stomach. The [assault] also left him in significant pain. He could barely walk. The other crew members had suffered similar injuries, but the attackers had doled out more severe treatment to him, as the skipper of the boat. The applicant said that they remained in that location for five days. They occasionally went further out to sea, to treat their wounds with salt water, but they had no strength to do anything else. Asked about any communications with [Company 1] (their employer) or family members during this period, he replied that they chose not to contact them at all. The applicant emphasised that they [traumatised] and were in pain. He said that the written claim, that they we resumed fishing, was incorrect.

36. Consideration: The Tribunal has significant concerns about this claim. First, the applicant’s written and oral accounts of their activities in the days following the alleged attack are inconsistent. The applicant has not explained why his written statement (from April 2015) refers to the crew having resumed fishing, whereas he now claims that they were moored offshore and not active. Second, the applicant said that he and the others suffered serious injuries, but struggled to give details of what these were or how they treated them in the following days. His brief comment that his colleagues had similar injuries, only not as bad, adds to the Tribunal’s scepticism about this claim. Third, the applicant stated that he and his crew had no contact with their employer or their family members in the following [days]. He offered no insight as to whether he and the crew had even considered the practicalities of being out of reach for five days, such as family, medical or business-related factors.

37. In the Tribunal’s view, these concerns add up to serious doubts about the applicant’s account, in its entirety. (For findings, see below.)      

    Return to shore and police involvement

38. Return to shore: According to his written statement, the crew returned to shore [in] July 2013. They had cuts and bruises all over, and their employer reported the matter to the police (based on the general assault, as he had no knowledge of the [attack]).

39. At hearing, the applicant said that on their return to shore, the boat owner was exercised about the theft of the catch. He said that, despite the alleged violence, there had been no damage to the boat itself, except that the attackers threw a bench into the water. As for medical treatment, the applicant said that neither he nor his colleagues went to a doctor at any time. He explained that they had cuts and bruises all over, and they were worried that any medical consultation would eventually lead to the discovery that they had been [attacked].

40. The owner decided to report the attack to the police. When the applicant and his colleagues tried to resist this idea, he then said that he was concerned about their welfare.

1. Police action: The applicant wrote that the police took statements from him and the other crew; they only spoke about the general [assault]. At hearing, he said that neither he nor his employer received a copy of any police report. He said that the police did not request any medical evidence; they did not seem interested in that. 

2. The applicant wrote that the police asked him and the others (this appears to have been the boat owner and the two crew members) to accompany them to [a] village, in the police vehicle. On arrival in the village, they spotted the boat that the Fijian men had used to attack them. With this information, the police were able to locate the owner, the son of the village chief, who was one of the four attackers. The applicant and his friend were able to identify him as one of the attackers.

3. The police interviewed the alleged attacker, and then took him (together with the applicant and his associates) to the police [station], where he was charged. The applicant and his friends were sent home.

4. At hearing, the applicant said that, after taking their statements, the police travelled with the applicant (and the others) to [a village], in the applicant’s boss’ van. (He said that it was a small police post, and the officers did not have their own vehicle). On arrival, the village chief called a meeting and asked what had happened. It was at that meeting that the applicant and his friends saw one of the attackers and pointed him out (who had attacked one of the other two crew members). (The applicant said they never learned the name of this person, only [Mr C].) The Tribunal put to the applicant that, according to his written statement, it was their sighting of the boat that led to the discovery of this person; whereas at hearing, he had said that they found him because he attended the general meeting. He replied that it was at the general meeting that they were able to link the boat to the owner (the son of the village chief).

5. The applicant said, in response to the Tribunal’s questions, that [the village] is some 30 to 40 minutes via a poor road from where he lives. He does not know the name of the village chief, or his son, to this day. The police took the alleged attacker to the police station in [Town 1]; the applicant and his friends accompanied them. The applicant remained there with his friends for only about ten minutes (before [Mr C] and the others came, see below).

6. Consideration: The Tribunal finds problematic the applicant’s claim that neither he nor his colleagues sought medical treatment, despite the alleged severity of their injuries. These allegedly included superficial cuts and bruises, but potentially also internal injuries. Even if the applicant was reluctant to consult a doctor, it is surprising that his family, employer and/or the police did not apply some pressure for him to do so. Moreover, there is no evidence that he has done so in Australia. The Tribunal acknowledges that [assault] can have a profound impact on victims, and may inhibit them from seeking medical treatment. However, as discussed at hearing, the applicant’s claimed injuries went well beyond that. The Tribunal does not accept at face value that he in fact suffered [an] assault, or that this adequately explains the paucity of evidence relating to the alleged incident in July2013. (For further analysis, see below.)     

   Pursuit by the attackers

7. In his written statement, the applicant claimed that he was back home from [the] police station, when later that evening around 8pm, a police van came and took him to the police station.

   §  When he arrived, his two fishing colleagues were already there. The police officers told the men to await the arrival of some criminal detectives.

   §  About 30 minutes later, two army officers came, one of whom was the person who attacked the applicant. He wrote: ‘This is where I got to know that his name was [Mr C].’ The officers drove the applicant and his friends half way to [the city], and got them to exit the vehicle. They held guns to their heads, warning that the [the] village chief was upset, and that they will hunt and kill the applicant (and his friends) if they proceed with their complaint. They then dropped the applicant (and his friends) off at their homes.

   §  The applicant and his friends were petrified. They withdrew the charges, on the pretext that they had settled the matter with the attackers according to custom.

   §  After this, [Mr C] paid regular visits to the applicant, on more than four occasions. He warned him to keep quiet, or face the consequences. The applicant claimed that he is convinced that this all happened due to his Indian ethnicity. He lived in fear of further harm, and suffered psychologically because of the [attack].

8. At hearing, the applicant claimed that he and his friends were at the [police] station for only about ten minutes (while the charges were being laid against the son of the village chief). [Mr C] appeared unexpectedly from behind, this time wearing his army uniform, accompanied by two other men. They took the applicant and his friends away, to a secluded spot, where they then threatened to kill them.

9. He said that, after threatening them, [Mr C] and his associates dropped the applicant and his friends off at the [police] station, which was a short walk from his home.

10. The applicant said that, to his knowledge, the charges against the village chief’s son are pending, but the authorities have taken no action. The applicant said he does not know the name of the village chief’s son. The Tribunal signalled its surprise, given that the applicant and his friends allegedly made allegations against him, and he would seem to have a direct interest in finding out the name of the village chief and his son. In response, the applicant said that he has tried to find out, but is uneducated. The village is some distance from his own, and culturally distinctive.

11. In other words, he did not withdraw them. He said that [Mr C] used to come by regularly, about once a fortnight, to intimidate him.

12. The Tribunal alerted the applicant to the apparent discrepancies between his written statement and his oral evidence. In response, the applicant said that the police officers collected him from his home (in other words, [Mr C] and his associates took the applicant away on his second visit to the [police] station that day).

13. Consideration: The applicant’s accounts of events after he returned to shore in July 2013, the police response to his complaint and [Mr C] pursuit of him contain numerous inconsistencies, gaps and anomalies, and lack supporting detail and evidence. He has given inconsistent information, for instance, as to when and how he learned [Mr C’s] name; how they came to identify the son of the village chief; and whether the officers came for the applicant and his friends during their first visit to the [police] station, or during a second visit (after first going home). The Tribunal takes into account that the applicant has limited education and has given a lengthy narrative; and that a forensic assessment of the evidence may not be appropriate in such circumstances. It notes, too, the sensitivities surrounding the assessment of claims involving [the attack]. In the present case, however, the Tribunal considers the applicant’s general uncertainty about the events to be significant, and it does not consider [such] [an attack] (which it does not accept at face value) adequately addresses the deficiencies in the applicant’s claims as a whole.

14. In sum, the Tribunal’s concerns about the applicant’s claims and evidence are extensive, and not adequately explained by his personal circumstances or the nature of his claims. They cast strong doubt over the entirety of his protection claims. 

    The applicant’s activities from July 2013

15. The applicant said that he remained in his village after this alleged incident, scared. ‘They’ ([Mr C] and the others) told him not to run away. In any event, he would have nowhere to live if he moved to another part of Fiji, even Nadi or Suva, and would not be able to find work to survive. The Tribunal found the applicant’s statements on these issues to be brief and disengaged. It does not accept that he remained in his village, living in fear yet unable to contemplate any other options while still in Fiji. These concerns reinforce the Tribunal’s already strong doubts about the credibility of his claims.

    Recent developments

16. The applicant told the Tribunal that [Mr C] continues to call by, enquiring whether the applicant has returned to Fiji. The applicant said that he has lost contact with his two colleagues; it appeared from his response that he has not made any enquiries.

17. In light of the above concerns, the Tribunal does not accept that [Mr C] or anyone else continues to seek out the applicant, who left Fiji more than three years before the Tribunal hearing. Furthermore, the applicant’s lack of enquiry about his former colleagues, who allegedly had similar experiences to him and would presumably face similar risks, reinforces the Tribunal’s doubts about his case as a whole.

18. As noted above, the applicant said that he has not received any medical treatment in Australia for any injuries arising from his claimed ordeal, in part due to lack of funds. He did not provide any details of the kind of medical issue that he considers needs examination, or of any efforts to seek treatment.

    Findings

19. The Tribunal has considered the applicant’s claims relating to the events of July 2013 and their aftermath. Given the extent of its concerns[1] it does not accept that Fijians (including an army officer and the son of a local village chief) abused the applicant (and his colleagues) racially, stole their fish, [and attacked] them, or threatened to kill them if they reported this to the Fiji authorities. The Tribunal also rejects the applicant’s claim that he suffered physically or psychologically as the result of any such attack; that he reported the incident to the police; or that the perpetrators then threatened to kill the applicant (and his colleagues). The Tribunal also does not accept that the applicant lived in fear in Fiji, that he discontinued his fishing work after such an incident, or that he suffered any related harm.

    [1] See, in particular, paragraphs 32-33, 36-37, 46 and 53-57.

20. The Tribunal notes that the applicant gave details of when the Fijian officials approached him and, in his written claims, focused on their demand that he produce a fishing license. The Tribunal accepts that these and other claims may be based on the applicant’s own experiences as a fisherman, but it does not accept any of his claims about the mistreatment he received during any such exchange.

21. The Tribunal finds that the applicant left Fiji for reasons unrelated to these protection claims. It does not accept that [Mr C] or anyone continues to search for him; that he has former fishing colleagues whose whereabouts are unknown (for any sinister reasons); or that the applicant genuinely fears serious harm or significant harm at the hands of any Fijian officials.  

    Ongoing discrimination by Fijians

22. The applicant claimed that the sole trigger for the Fijian officials targeting him and the other fisherman in July 2013, and subjecting them to mistreatment, was their Indian ethnicity.

23. He told the Tribunal that, even before the alleged July 2013 violence, ethnic Fijians had harassed him (and other members of the Indian community). He said there were many instances when Fijians verbally abused him, for instance, reminding him that it was their country; they sometimes tried to stop or interfere with his fishing, or steal produce; and they sometimes beat him. He later mentioned that Fijian men sometimes got drunk, and would become aggressive. Several times, he said that he was more vulnerable, because he was poor, had limited education and little Fijian language.

24. At hearing, the Tribunal put to the applicant country information from the Department of Foreign Affairs (DFAT). It drew in particular from the following statements in DFAT’s latest country report[2] indicating that Indo-Fijians face a low level of discrimination:

    3.8 Instances of official discrimination against Indo-Fijians are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.

    3.9 In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists. For example, it is common for Indo-Fijians to drink kava (yaqona in Fijian; a plant of Pacific origin with sedative effect and a central role in traditional Fijian ceremonies), and for Fijians to eat curries and to celebrate Diwali. Many Indo-Fijians identify primarily as Fijian and secondarily, or not at all, as Indian. However, there are some Indians who strongly maintain Indian pride and refer to themselves as ‘Indians’. Many Indo-Fijians, particularly in rural areas, speak or understand Fijian.

    3.10 Overall, DFAT assesses that Indo-Fijians face a low level of official and societal discrimination based on their race/nationality.

    [2] DFAT, Country Report Fiji, 27 September 2017

25. The Tribunal accepts that the applicant may have experienced some degree of discrimination, as an Indo-Fijian. As noted above, it accepts that the applicant’s protection claims may have drawn to some extent on his experiences as a fisherman, dealing with Fiji officials and licensing authorities. It also accepts that local Fijian communities may react negatively to unauthorised or unannounced activities by Indo-Fijian fisherman in their local waters. However, the Tribunal does not accept that the applicant has experienced any problems in relation to his work, or in any other sphere, that involves serious harm amounting to persecution, or significant harm.

    ASSESSMENT: REFUGEE CRITERION

26. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors such as the applicant’s future conduct, there is a real chance of him experiencing serious harm amounting to persecution for a s.5J(1) reason, if he returns to Fiji.

27. The Tribunal has rejected above the applicant’s claims that Fijian officials, including an army officer and the son of a village chief, [attacked] him; that they retaliated against him for reporting this incident to the police; or that they threatened to kill him and have an ongoing adverse interest in pursuing him. The Tribunal also does not accept that the applicant has any physical, psychological or other impacts from any such incident. It follows that the Tribunal also does not accept that the applicant faces a real chance of serious harm amounting to persecution, as a consequence of these (now-rejected) incidents. The applicant claimed that the sole reason for the Fijian officials’ serious mistreatment of him and his fellow fishermen was their Indian ethnicity. This clearly relates to the reason of his race, one of the grounds set out in s.5J(1). However, this does not assist the applicant, as the Tribunal has already found that these incidents did not occur as claimed, and he has no well-founded fear of persecution arising from them.

28. The Tribunal accepts, on the basis of country information that there is a low level of societal and official discrimination against Indo-Fijians. The Tribunal also accepts that the applicant may have experienced some general discrimination of this kind, for instance, in the licensing and enforcement of fishing regulations. It notes, too, the applicant’s evidence that he is somewhat more vulnerable because of his lack of education and his meagre resources. In relation to his future intentions, the applicant said that he would be at a loss of where to go or what to do (in particular, due to his now-rejected claims that it is unsafe for him in his local area); and Indians face a hard time throughout Fiji. The Tribunal finds, on the available material, that the applicant faces no real chance of discrimination that, individually or cumulatively, amounts to persecutory harm.

29. The Tribunal has considered the applicant’s claims, individually and cumulatively. It is not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Fiji: s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

30. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.

31. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about the treatment of Indo-Fijians in Fiji. It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Fiji.    

32. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    CONCLUSION

33. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

34. 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).

35. 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

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

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    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.