1517282 (Refugee)

1517282 (Refugee) [2017] AATA 3028 (15 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1517282
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:15 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 December 2017 at 12:00pm
CATCHWORDS
Refugee – Protection Visa – Fiji – Particular social group – Hospital staff – Fear of persecution – Adverse interactions with the military – Imputed political opinion – Relative of public official – Separated woman – Social discrimination – Witness credibility – Significant inconsistency in submissions
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A.
The Department
The Departmental file contains documents including the applicant’s protection visa application forms, a letter in support dated [in] June 2015, a copy of the identification page of her passport, submissions, supporting documents and photographs, a copy of the recording of the interview with the delegate (to which the Tribunal has listened) and the delegate’s decision record. There are no certificates restricting disclosure of any material on the Department’s file.
The applicant who claims to be a citizen of Fiji, applied for the visa [in] June 2015. According to the applicant’s written documents, her background and claims can be summarised as follows:
·     The applicant was born in 1978 in [Town 1], [Province 1], Fiji. She speaks reads and writes in English and Fijian. Her ethnicity is [ethnicity] and she is a Christian (Methodist). Her occupation is registered nurse.
·     Her relationship with her husband began [in] April 2000, they married in 2003, and they separated [in] November 2014.
·     The applicant claims to be a nurse in Fiji, and that she obtained her qualifications in Fiji in 2000. The military/police sometimes harm people and then bring them to the hospital. When the military is in the hospital, the medical staff (including herself) have to attend to their demands immediately, or they could be harmed. As a medical staff member in Fiji, she was and may be threatened not to tell about what she has seen in hospital, sworn at, suffered and slapped by military personnel. This has been going on for a long time. Many nurses have suffered like this.
·     She did not tell her husband what she suffered, he thought she had depression, and left her for another woman.
·     She is a strong supporter of SODELPA and she is a relative of [Public Official 1], who has difficulties with [a senior public official] whom they believe controls the army and police forces. She has been abused because of her relative and she believes that many from the same village have suffered the same fate.
·     She obtained her visitor visa to Australia [in] September 2013, for a period of two years, allowing multiple visits. She travelled to and from Australia firstly [in] October 2013, returning to Fiji [in] December 2013, then [in] November 2015 she again travelled to Australia, returning to Fiji [in] January 2015. She finally left Fiji again [in] April 2015 as she could no longer tolerate being pressured. She left Fiji for her safety.
At the interview the applicant discussed her claims with the delegate. She said that she had been tortured by the military while performing her duties as a nurse. When asked what torture she had experienced, she said that the military had not allowed her to complete official reports for patients that they brought into the hospital. She had also been slapped a few times for asking. She was scared of losing her job as a nurse; she did as the military directed.
The applicant had said that she did not think she would be harmed if she returned, but that is possible one day she could be working at a hospital and the military could bring in one of her relatives that they had harmed, and she would have to witness that. She claimed that her family come from the same village as a member of the SODELPA political party. The delegate considered that this was based on speculation, and considered that based on the country information, there was no current reason for the applicant to consider that the military may harm her. The delegate refused to grant the visa [in] December 2015.
The Tribunal
The applicant provided to the Tribunal a copy of the notification of the refusal by the Department, an application for review, further submissions and country information. She requested that a hearing not be scheduled until after October 2017 as she is a fulltime student [and] she does not want to interrupt her [classes]. The Tribunal held the hearing on 6 December 2017.
At the hearing, when the Tribunal noted that the applicant had not requested an interpreter[1], it said that it was important for her to let it know immediately if there was anything she did not understand. The Tribunal noted that if she felt she needed an interpreter, it could try to organise one, for example by telephone. During the hearing, on one or two occasions the applicant asked the Tribunal to rephrase something. Otherwise, she responded to the Tribunal’s questions and made submissions and arguments on her behalf. The Tribunal is satisfied that the applicant was able to understand the proceedings, give evidence and present arguments in English.
[1] In the application for review form, in answer to the question of whether she sought to ask for an interpreter, the applicant said no. Further, when he was forwarded the Hearing Invitation she was requested that, if she wanted an interpreter, she should tell the Tribunal at least seven days prior to the hearing. She did not do so. The information sheet provided to her prior to the hearing stated that, if requested, the Tribunal would organise an interpreter to be present at the hearing for the applicant.
The applicant told the Tribunal that she herself had completed her protection visa application forms and her written materials submitted, but that she had received assistance from [another] with the forms when she may not have understood a phrase. There are no errors or mistakes; her written materials are all true and correct.
She has [a number of siblings] who live in [Town 1]; they are all doing [occupation]. She is in contact with her siblings, they talk about the community activities, their families and school.
Her husband was a [occupation] who worked as [position] since 2003. His father was a [occupation]; he was a [details of occupation] who retired in August/September 2013. She and her husband initially lived with his [parents], then they purchased a home together and moved out. She remained living in their home until she left Fiji.
She told the Tribunal that she had only worked in a hospital for two years after she obtained her diploma in 2000, there after she had worked from 2004 to 2008 in an Outpatient Department in Health Centre (if the situation was serious, the patient would be seen by a doctor and sent to a hospital; however if the situation was minor, nurses such as the applicant would deal with the patient). From 2008 to 2011 she did public health outreach by visiting the community; she again worked in an Outpatient Department of a Health Centre from 2011-April 2013; from April 2013 until she left in April 2015, she was involved in [organisational] [Health]. Sometimes on the weekends she would go to the Outpatient Health Centre for extra money. The applicant did not claim that she had difficulties with the authorities in her job as [an organisational] health nurse (from April 2013- April 2015); her claim related to periods when she was working at the outpatient health centres (but not since January 2013).
The applicant said that the only reason she suffered harm/ threats was because of her work (she did not claim that it was because of her place of origin or for any imputed political reasons).
When asked by the Tribunal what she has been doing in Australia, she said that as soon as she got work rights, she started looking for a job. She started a job as a [occupation] in about September 2015. She then used her initiative to find more work and obtained a job caring for some elderly people; she did that for 8 months and she decided to study. She did [a certificate] and in April 2016 she commenced working at [details of work]. She then commenced a [Diploma] which she undertook for 18 months. She completed the [details of study].
When asked if she had done anything else in Australia, she said she has done nothing apart from her work and her studies.
When the Tribunal asked the applicant what she feared, or worried or concerned her, about returning to Fiji, she discussed her concern about a military officer. She said that in January 2013, she saw a military officer who brought a victim to the hospital. They were kicking him. She told him they were treating him inhumanely. The military officer was not happy with what she said and told her to “watch out”. That was the threat that caused her to fear for her life. He did not say anything else to her. She has received no other threats or harm since that time in January 2013. She does not know the officer’s name (or his whereabouts).
When asked if there was any other reason to be worried or concerned about returning to Fiji, she said that because her husband left her for another lady, she cannot face him or relatives; in their culture they are supposed to be together forever, so she is concerned about being looked down upon and embarrassed. The Tribunal put to her its understanding that people do get divorced in Fiji. She then agreed and said some people separate and take it lightly; others don’t. When asked if there was anything else she was concerned or worried about if she returned to Fiji, she said no, that is all.
While noting that it had not made up its mind, the Tribunal put to the applicant its concerns with the credibility of her claims, as well as country information sourced from the DFAT Report on country conditions (27 September 2017).
The Tribunal has before it the Departmental file and the Tribunal file relating to the protection visa claims; it also has the Department’s file relating to the applicant’s offshore visitor visa application. Further relevant evidence, and information put to the applicant pursuant to s.424AA of the Act, is set out below.
FINDINGS AND REASONS
Country of reference
The applicant produced her passport to the Tribunal. The Tribunal finds that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Fiji.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).
The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence, and her delay in finally leaving Fiji once she considered her life was at risk. The Tribunal’s concerns are set out below.
Firstly, the Tribunal noted that the applicant had claimed that the last threat she received was in January 2013, and that this threat remained the reason why she feared returning to Fiji now, in 2017. The Tribunal put to her that she last left Fiji [in] April 2015, over two years after that threat. Further, she had made two trips out of Fiji to Australia ([October] 2013-[December] 2013 and [November] 2014-[January] 2015[2]), on both occasions returning to the place where she claims to have feared for her life. The Tribunal put to her that not only did she return to Fiji twice, she also continued to carry out her work for the Ministry of Health, and to live at the same address, where she would have been easy to locate, could have been harmed at any stage. The Tribunal suggested that these circumstances indicated that she may not have had a genuine fear of harm. Further, the Tribunal noted that if the last threat (to “watch out”) occurred in January 2013, the officer had had plenty of time to locate her and harm her if he really wanted to do so, but that this had not occurred. In response, she said that he could have been transferred, or he could have stopped working for the military. The Tribunal put to her that she did not know this, so it still did not understand why she remained where she was, and returned to Fiji when she did, and why he did not harm her if he had any intention of harming her between January 2013 and when she finally left the country in April 2015. She said she did not have anything to say. The Tribunal considers that the applicant’s actions and undermine her claims that she was threatened and feared for her life.
[2] As set out in her application form (DF22) and confirmed by the Department movement records.
The Tribunal has taken into account earlier explanations given by the applicant. She claimed that she returned to Fiji because she thought the new elected government had been installed and it would become normal; but that everything stayed the same. She said she could not recall when in 2014 there was an elected government; the Tribunal referred to the DFAT report and the September 2014 results. The Tribunal noted that she had returned to Fiji both before this date, and after this date, which undermined her explanation.
When the Tribunal put to her that it was her evidence that she had had this fear that she would be taken to the military camp because of the threat of the military officer in January 2013, but that it took her another 2.5 years to sign her protection visa application ([June] 2015), she said she did not know about such matters. The Tribunal put to her that it was her evidence that she had friends in Australia, that she had visited twice, and she could have approached them to say that she was in fear of her life, and she could have made enquiries about how she could seek protection in Australia. Her response was “yeah, it was too late when I found out”. The Tribunal is not prepared to accept her explanations. The Tribunal considers that the applicant is an educated woman who speaks English, and has been able to study and work [in] Australia, and only claimed protection after she had visited Australia for the third time. The Tribunal considers that if she genuinely had fears for her life, she would have made enquiries about how she could have obtained assistance when she was in Australia on the first two occasions. The Tribunal considers that this undermines her credibility and claims.
Further, the Tribunal had been concerned with the applicant’s explanation as to why she needed to leave Fiji in April 2015, especially given that the last threat had occurred in January 2013, and nothing had happened since then. Her response was that it was just a fear, and what happened with her marriage stresses her a lot. The Tribunal considers that this was inconsistent with her claim in her written materials that she left Fiji for her safety “in fear of torture and threats which are still ongoing in Fiji”, and that her delay in leaving undermines her credibility.
Secondly, the Tribunal was concerned that the applicant gave inconsistent evidence about the problems she had while she was working. The Tribunal asked how many times she had experienced a difficult situation with military, and she said four occasions. Three occasions in 2012, on each occasion they brought an injured person into be seen, and they wanted to take priority, so the doctor treated them, they were not taken to hospital. The military would talk to the staff forcefully; nothing else happened. The fourth encounter was that referred to above (in January 2013 when she was threatened by a military officer who told her to “watch out” and said nothing else). The Tribunal asked whether anything else had happened to her and she said no.
The Tribunal put to the applicant that according to her protection visa application form, she had been abused physically and verbally by the military (and sometimes police officers), and that elsewhere in the form she had mentioned being slapped and threatened on a number of occasions. The Tribunal noted that she had not made such claims when giving her evidence. She then said that she had been slapped by a police officer when seeking the particulars of a victim and arguing. The Tribunal asked when this happened and she said she could not recall. When asked for an approximate date, she was silent. She then said she thinks it was 2004 or 2008. The Tribunal put to her that it would think that she would have mentioned this when it asked whether anything else had happened to her. She said the reason she didn’t was because it happened when she worked in a different location. The Tribunal noted it had not limited its question to a particular health centre. She then said that she “totally forgot” about this. The Tribunal considers that if the applicant experienced physical abuse which she stated led to her experiencing “extreme fear” (as claimed in her application form), she would not have forgotten to tell the Tribunal about it. Further, she did not suggest in her evidence that there was any occasion where she was physically abused by the military, which was inconsistent with her protection visa application form, and which she did not explain; this undermines her credibility and claims.
Thirdly, the Tribunal was concerned that the applicant gave inconsistent evidence, and changed and adapted her evidence, throughout the proceedings, as set out below.
Inconsistent evidence about whether the applicant told her husband about the harm that she went through when doing her job: In her written materials, the applicant said that she did not share with her husband what she went through, with the authorities, while she was at work, as she did not want him to suffer for what she was going through. However, when the Tribunal asked her whether she told her husband what she had been facing, she said she had done so, he had seen how she was and he asked her about it, and she told him that she was stressed and depressed with the actions of the military. The Tribunal put to her this inconsistency, and asked her if she could explain it. Initially she was silent; then she said that she is just trying to recall; then she remained silent, then she said she could not explain. The Tribunal considers that this undermines her credibility and claims.

Omission to mention one out of two reasons for her claimed fears when making her claim to the Department: The Tribunal noted that there were only two reasons (as told to the Tribunal) as to why she feared harm upon return: firstly the military, and secondly her fear of embarrassment/being looked down upon by relatives/people because her husband had left her. She had not, however, mentioned this second fear in either her written materials provided to the Department, or at the interview with the delegate[3]. The Tribunal discussed with the applicant the operation of s.423A of the Act, and asked the applicant why she did not raise the claim that she feared such harm from relatives/the community because her husband had left her.
[3] She told the Tribunal that she had not mentioned this to the delegate.
Her explanation for failing to mention this to the Department was that she was told when filling in the form that she had to concentrate on government or membership or family and that is why she did not raise the issue. The Tribunal does not find this persuasive, given she mentioned her husband, and him having left her, in her written materials provided to the Department. Concerning her reason why she did not mention this to the delegate, she said that he did not give her any opportunity to say something else during the interview. The Tribunal asked her if she was sure that at no stage in the interview was she given the opportunity to provide any further additional information by the delegate, and she confirmed this. The Tribunal later put to her, pursuant to s.424AA of the Act, that the Tribunal had listened to the recording of the interview, and that according to that recording, she had been given the opportunity at the commencement of the interview to say whether or not there were any new claims, and at the end of the interview she was also given the opportunity to say anything else she had not said. In response she said she thought it was just political information she should tell the delegate, and she didn’t tell him about the marriage. The Tribunal considers that the applicant has changed her explanation once it was put to her that she did receive opportunities to make further claims/ give further evidence, which undermines her credibility. The Tribunal is not satisfied that she has provided a reasonable explanation as to why she told the Tribunal that the delegate did not give her an opportunity to make such claims at the interview.
The Tribunal does not find the applicant’s explanations as to why she failed to mention her second fear when her claim was being considered by the Department to be persuasive. The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why her claim to face harm because of embarrassment and being looked down upon was not raised before the primary decision was made. Therefore the Tribunal draws an adverse inference about the credibility of this new claim.
Even if it did not, however, draw an adverse inference by operation of s.423A of the Act, the Tribunal would however have drawn an adverse inference as to the credibility of this claim because the applicant only made this claim at hearing and not previously, despite having the opportunity to do so. The Tribunal is not satisfied that there is any reason (including that she was not represented, given her ability to converse in English and her ability to complete the forms and obtain assistance for herself when she considered necessary) for the applicant to have not made this claim at an early opportunity, and considers that her failure to do so undermines her credibility and her claims.
Further, the Tribunal had been concerned as the applicant gave inconsistent evidence about the claim of harm feared because her husband had left her. In this regard, the Tribunal noted that it was her evidence (at one stage) that they had not been living together as husband and wife for a three month period before she came to Australia; he had been going back and forth between her place, and the girlfriend’s place. The Tribunal put to her that during those three months there had been an opportunity for the feared harm (embarrassment and bad treatment in the form of adverse comments/being looked down upon) to have occurred, but that she had made no such claim in her protection visa application. She said that this was because she was in hiding from people. She then changed her evidence to say that she had received mean comments from him and his family. The Tribunal put to her that even if she had received hurtful comments, and been upset at the breakdown of a marriage, this does not mean that she faces a real chance of serious harm or a real chance of significant harm from anyone due to comments if she returns to Fiji. However, the Tribunal considers that her omission to mention these “mean comments”, as a source of her fear of return, and her changing evidence, to undermine her credibility.
Inconsistent evidence between the interview and the hearing as to the harm she would face upon return to Fiji: At the interview with the delegate, the applicant said that she herself did not face harm in the future in Fiji, but that the military could harm her relative when she is on duty in hospital, which would be hard for her. However, at the hearing with the Tribunal, when asked what she would face upon return, she said that she would be punched by the military officer who had threatened her in January 2013; she had made no mention of a fear that a relative would be brought to hospital and she would see them harmed. The Tribunal put these inconsistencies to the applicant pursuant to section 424AA of the Act, and in response she said that during the interview, there was an interpreter, and she was uncomfortable with him because she knew him personally. The Tribunal asked why she didn’t tell the delegate that she knew him personally, and she said she didn’t think she could do so.
The Tribunal noted however that when it had discussed her evidence at the interview with her earlier during the hearing, including concerns about her omissions (for example the omission to mention her second fear of being looked down upon/ embarrassed if she returns), she had not mentioned a claimed personal knowledge of the interpreter as a problem at the interview. When the Tribunal asked her why she didn’t mention this when given an opportunity earlier in the hearing to do so, she said she did not think there would be any reason to say this. The Tribunal does not find her explanation to be persuasive; it considers that if she had concerns about the interpreter, she would have mentioned this earlier in the hearing when issues were raised about other omissions at the interview. Further, this was inconsistent with her earlier assertion that the reason why she did not mention a fear relating to her marriage at interview was because she thought she should talk about fears relating to the authorities; if this was the case, she would have told the delegate that she feared being punched by a particular military officer who had threatened her in January 2013.. The Tribunal considers that this indicates that the applicant is prepared to adjust her evidence to respond to the Tribunal’s concerns; and it is not prepared to accept her explanation about the interpreter.
The Tribunal considers that she has given inconsistent and changing evidence about the harm feared, at different stages of the process, which undermines her credibility and her claims to fear harm in Fiji.
Fourthly, the Tribunal was concerned with the inconsistent evidence given by the applicant in relation to a number of aspects about her claimed relationship, and her background as a nurse in Fiji, as set out below.
Date of separation, and the event that occurred [in] November 2014: Concerning the separation, the applicant initially told the Tribunal that her husband had moved out of the family home (that they had purchased together) in March 2013. She then changed her evidence to say that it was not 2013, but March 2015, and that she had left the country in April 2015. However, the Tribunal noted that different evidence was provided in her written materials. In her letter to the Department, she seemed to indicate that her husband had left her in early 2014, whereas in her application form, she gave a very specific date for the separation, namely [a date in] November 2014. The Tribunal noted that this was inconsistent with a separation date of March 2015. In response, the applicant said that before he left her in March 2015, he had started to spend time living with the other woman. The Tribunal said to her that she had given a very specific date, namely [a date in] November 2014, for the separation, and it did not understand why she had given that date. She then said on [that date in] November 2014, she was at home in Fiji and she found out from a friend that he was out shopping with a lady in town. The Tribunal put to her that this did not necessarily indicate that he was in a relationship with someone else such that they separated on this date; she agreed. The Tribunal then put to the applicant that it was not possible that she was at home in Fiji and found this out on [that date in] November 2014, because according to her application form, she had travelled to Australia and was in Australia from [November] 2014 until [January] 2015.
The Tribunal asked her to explain the inconsistency about this significant date; she then changed her evidence. She said that when she had come to Australia she had brought his phone with her and she found text messages and evidence of calls between him and another woman showing that they were lovers. The Tribunal said that it was difficult to understand how she could mix up these events, and it did not understand why she did not tell the Tribunal earlier about discovering the text messages [in] November 2014. In response, she said that she had forgotten about the text messages. The Tribunal put to her that it was difficult to understand how she could have forgotten those text messages if they marked her separation from her husband; she said words to the effect of “it has been quite a while”.
The Tribunal put to the applicant that it did not understand the inconsistent and changing evidence about the separation, and she responded that she was confused with the dates. When taking into account the other concerns held by the Tribunal, it does not find her evidence to be persuasive. While the Tribunal accepts that numerous events can contribute to a breakdown of a relationship, the Tribunal considers that the applicant’s changing evidence undermines her credibility and claim that she and her husband separated.
What has happened to her home: The Tribunal noted her evidence that the house was in joint names and asked her what happened to the house after she had left it (noting her claim that her husband had already moved out of the house before she left). She said she did not know and that he could do anything with the house if they had been separated for more than one year. The Tribunal put to her that the house was in her name, he would need her permission to sell it, and it asked why she thought that he could do anything with it. She said a friend told her this. The Tribunal said that she has an interest in half a property, and it does not understand why she did not make her own enquiries about her interest in the house. The Tribunal suggested that perhaps she did not need the money. She responded that she did need the money, but she still did not make any enquiries about her interest in the house. She said she was depressed and didn’t want to make a commotion. Having regard to the activities that the applicant has been able to carry out in Australia (educate herself, find accommodation, locate and maintain different jobs, take particular steps to follow her chosen career path), the Tribunal is not prepared to accept the applicant’s assertions as to why she claims to have made no attempts to find out what has happened to a house which she half owns. The Tribunal considers that this undermines her credibility.
Inconsistent evidence about how she could have returned to her nursing job in 2013 while she was still in Australia: The applicant told the Tribunal that the first time she went to Australia, in 2013, she obtained leave, and she returned to her work before her leave expired. When asked, she assured the Tribunal that she did not obtain any extension of her leave. Her application form recorded that she travelled to Australia [in] October 2013, and only left Australia [in] December 2013.
This, however, was inconsistent with the letter from the Ministry of Health dated [in] August 2013 she had provided to the Department in support of her visitor visa application, contained in the offshore visitor visa file[4], which stated that her leave was effective from [a date in] October 2013 [a date in] 26 November 2013, and she must return to her duties [a date in] November 2013. This would mean that it was not possible for her to have resumed her duties as a nurse on [the date the applicant claimed in] November 2013.
[4] folio 10
The Tribunal put this information to the applicant pursuant to section 424AA of the Act, and also noted that country information indicated that false documents can be obtained from Fiji[5], and this could mean that this document should be given no weight, and that she had relied upon a document which was inconsistent with her evidence, and that her circumstances and background are not as she has presented. In response, she said that she thinks she took to two days bereavement leave because her flight came back [in] December 2013. The Tribunal noted that it was not a case of an extra two days, but a significant period of time that she spent in Australia instead of returning from her leave to her work in Fiji. In response she said she forgot, she is confused, and she must have extended her leave. The Tribunal has considered this explanation but does not find it persuasive, especially as she had been clear in her initial response that she had not extended her leave. The Tribunal considers that this inconsistency undermines her credibility and her claims about her background.
[5] DFAT Report: “Document Fraud:
5.56 Counterfeit documents or fraudulently obtained documents are commonly and cheaply available.
Inconsistent evidence with friend’s letter: The Tribunal is concerned that the applicant gave inconsistent evidence with other documentary evidence that she provided. The Tribunal noted that the applicant had provided photos of persons with injuries to the Department. She said that these were pictures of victims taken to the military camp and then hospitalised. The Tribunal put to her that she was not working in a hospital but at a health centre. She agreed. The Tribunal asked who took the photos and she said a friend, [Ms A], who is a [nurse] who worked at a hospital from 2003 to 2006, she took the photos and emailed them to the applicant. The applicant said that she does not however know where [Ms A] worked after 2006, until [Ms A] came to the [organisational] Health Team in 2015. The Tribunal put to her that this was inconsistent with [Ms A]’s letter, which indicated that [Ms A] had known the applicant for eight years (since 2007), they had been working together for more than a few years as she had been able to observe a shift in the applicant’s behaviour and attitudes towards her work (and the applicant started coming in late to work), over a period of a few years. The applicant then changed her evidence and said that [Ms A] had been working with the [organisational] Health Team since 2013, not 2015. The Tribunal noted that even if this was the case, this still did not explain the inconsistency (her friend observing her change in behaviour over a period of years, although according to the applicant’s evidence she did not even know her friend’s whereabouts before 2013). The applicant changed her evidence to say she did know where [Ms A] had been working between 2006 and 2013, she was confused because she now recalled she had seen her friend during that period. The Tribunal considers that the applicant is prepared to change her evidence to respond to concerns. Further, it was the applicant’s evidence that she had only worked in a hospital between 2000 and 2002, thereafter she worked in Outpatient departments and it was here that she had experienced the difficulties with the military/ police officers (the earliest being in 2004 or 2008). However, the letter from [Ms A] claimed that the applicant was adversely affected when the military and police brought patients to the hospital and that they talked rudely to nurses and doctors at the hospital.
The Tribunal is not satisfied that the applicant has explained the inconsistencies between her friend’s letter and her own evidence. The Tribunal considers that this undermines her credibility and claims, and the letter.
Finally, in addition to her inconsistent and changing evidence about the harm feared, at different stages of the process, referred to above, the Tribunal put to the applicant that there were a number of claims that she had not mentioned at the hearing, which had been contained in her written materials. The Tribunal asked her whether she knew what those claims were, and she was silent, then she said she could not recall. Further, when the Tribunal sought to discuss these with the applicant, she did not appear to be able to say why they were claims. The Tribunal then discussed with her that in the written materials, she claimed to be a strong supporter of SODELPA, however she had made no mention of any political involvement in her evidence to the Tribunal. She was unable to explain why she had not mentioned this to the Tribunal. When the Tribunal asked her whether she had been a member of SODELPA, she initially said yes. When the Tribunal asked again, she said she had only been a supporter. When the Tribunal put to her that the DFAT report does not indicate that people who just support SODELPA face a real chance of serious harm or real risk of significant harm; the applicant then agreed. The Tribunal considers that if the applicant had had political involvement or feared harm for political reasons, she would have mentioned this when discussing her claims and fears with the Tribunal.
Further, the Tribunal noted that she had not mentioned at hearing her claim in the written materials that a relative from her village is a [public official]. She then agreed and said that in 2014, her relative [Public Official 1] became involved in [politics]. His [personal details of Public Official 1]. However, when the Tribunal asked her why this would cause her harm, she said if there are issues and if Fiji First (the Prime Minister’s party) argue in parliament, the authorities could then decide to cause harm to a relative of a [public official] (such as herself). The Tribunal put to her that she had never been harmed in the past, all of her family reside in that province and they have not been harmed. Further, [Public Official 1] himself has not been harmed, so it did not understand why the applicant thought that she, as a relative, would be harmed. She was unable to explain why she faced a real chance of serious harm or real of significant harm because of her relative, which the Tribunal considers undermines her claims and the credibility of her written claims.
Further, the Tribunal noted that she had not mentioned a claim about nurses she knew personally having had to flee Fiji for their safety. In her application form, she had claimed that there were 50 such nurses she had known personally, however when the Tribunal asked her how many, she said “a few”. When the Tribunal asked to to be more specific about how many she had known personally who had had to flee Fiji for their safety, she said there were five. However when the Tribunal put to her that the number in her application form was 50, she then adapted her evidence to agree, but to say that she had known five of them well. The Tribunal does not find her explanations persuasive, and considers that she was again prepared to adjust her evidence to respond to the Tribunal’s concerns, which undermines her credibility.

On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
Photographs, documents and letters
The applicant provided a Diploma of Nursing (Fiji) and a certificate of registration as a nurse in Fiji, both dated [in] March 2000. The applicant had also provided documents in support of her visitor visa application in relation to her claimed nursing education and work, including certificates and documents; and the offshore visitor visa application showed that she had worked for the Ministry of Health, as a staff nurse for 13 years; it noted her current role (in 2013) was in the [organisational] health unit. The applicant provided to the Department photographs of herself and others which appeared to show her in a uniform in a [location], which the Tribunal is prepared to accept as evidence that she worked as a nurse in outreach. The Tribunal is prepared to accept that the applicant has been employed as a nurse with the Ministry of Health in Fiji for a number of years. The Tribunal accepts her evidence that the last time she was employed in a hospital was 2002.
However, the Tribunal has such concerns with the applicant’s credibility that it is not prepared to place weight on other documents/ photographs the applicant provided to the Tribunal. The Tribunal does not accept that the photographs of injured people provided by someone to the applicant represent what she claims, or that they are at all relevant to the applicant. Similarly, the Tribunal is not prepared to place any weight on the letter from her friend [Ms A]. The Tribunal had put to the applicant that people could be prepared to provide written materials to support the applicant’s claims because they wish to assist her; this does not necessarily mean that their claims are true. The Tribunal had also put to the applicant country information indicating that false documents could be obtained, and it was concerned that she had provided documents upon which the Tribunal may not be able to place weight.
The Tribunal considered (and discussed) the statutory declaration from a [named individual] in Australia. He stated that he supports her claims; he [had] witnessed abuse to nurses and health workers on some occasions. His wife who was a nurse in Fiji was also a victim of such incidents. He provided letters showing that he [details deleted]. The Tribunal noted that the address referred to in his statutory declaration appeared to be similar to hers; she said that this was a person she had lived with for a while in Australia. The Tribunal also noted that he had not been [occupation] at the time she claimed to have experienced harm (2012/2013; although there was one incident that she said occurred in either 2004 or 2008 which, if it occurred in 2004, would have been while he was [in that occupation]). The applicant said that he was just referring to what he saw after the coup in 2000. The Tribunal notes however that the applicant’s claims mostly appear to relate to a later period. Having regard to the Tribunal’s concerns, it does not place any weight on this letter.
The applicant also provided a photocopy of a letter addressed to the Fijian Health Department indicating that she was resigning effective [in] May 2015. Having regard to the Tribunal’s concerns in relation to her evidence concerning her leave entitlements, the Tribunal is not prepared to place any weight on this document. Similarly, the Tribunal is not prepared to place any weight on the letter she provided in the offshore file claimed to be from her employer granting her leave to come to Australia.
Documentation was provided about general country conditions over different periods of time in Fiji; discussed further below. While the Tribunal is prepared to accept that there is country information indicating that the authorities could be and have been brutal, this does not mean that the applicant’s claims are true.
The applicant’s mental health
While the Tribunal accepts that a person can be nervous, and recounting past harm and trauma can lead to distress and difficulties in recall, on the evidence before it, the Tribunal is not prepared to accept that this, or her use of English language as an explanation for the significant difficulties with her claims and evidence.
The Tribunal noted that the applicant gave inconsistent evidence about her mental health situation. In her written materials, she claimed that she suffered from PTSD as a result of what she experienced at the hands of the military, and that she continues to suffer from PTSD. However, when the Tribunal asked her whether she had any mental health issues, she said that she had suffered from depression as a result of what she experience at the hands of the military. The Tribunal put to her that she is a nurse, and that these are different medical conditions. In response, she said that she had suffered stress. The Tribunal asked whether she had obtained any diagnoses of her mental health situation, and she said no. The Tribunal put to her that if it did not accept that she had experienced harm as a result of any claimed experiences, then it may not accept that she suffered from any mental health issues, as a result of such adverse treatment by the military/authorities. She said she understood this, she said also that she had been stressed by the breakdown of the marriage. The Tribunal put to her that she appeared to have been able to come to Australia, create a career path for herself and organise herself in terms of accommodation, work and study; she agreed and said that she is able to look after herself.
The Tribunal is not prepared, on the basis only of the applicant’s assertion, or her friend’s letter, or her changing evidence about her claimed mental health condition, to accept that she has suffered from any mental health issue while she was in Fiji; or continuing in Australia, which may have affected her in giving her evidence or presenting her claims; or which may affect her upon return to Fiji. It does not accept that she suffers from depression, stress or PTSD.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which she has based her protection claims.
Findings on the applicant’s claims
As noted above, the Tribunal has been prepared to accept that the applicant worked as a nurse in Fiji. However, on the basis of the adverse credibility finding, the Tribunal does not accept that the applicant suffered as described in her written materials or her oral evidence. The Tribunal is not satisfied that the claims made by the applicant are true. It does not accept that the applicant witnessed any adverse treatment of people or victims of the military or police, nor that as a result, she suffered a mental health condition. The Tribunal is not prepared to accept that she has a mental health condition. It also does not accept that she had any difficulties during her work with the military or the police or any other authorities in Fiji, nor that she was scared of losing her job as a nurse. The Tribunal does not accept that she experienced any threats or harm (from anyone) in Fiji. The Tribunal does not accept that the applicant supported or was involved in SODELPA in Fiji. It does not accept any of the claims flowing from these claims.
The Tribunal does not accept that the applicant considered that she had a need to escape from Fiji, nor that she feared or fears returning to Fiji, nor that anyone seeks to harm her, nor that she has a fear of torture and threats in Fiji. As it does not accept the claim that the military or police or any other authorities have sought to harm her in the past, and it has found that she has made up this claim, it is not satisfied that there is evidence to support that, on the basis of any past encounters, there is a real chance or a real risk that she faces being subjected to adverse attention from the authorities in Fiji because of her past (or future) work. The Tribunal does not accept that she has any fear that as a nurse she may one day be faced with a relative being brought in, beaten up, by the military, and it is not prepared to accept that there is a real chance or a real risk of this occurring in the future, especially given that, even during the times of the coups and aftermaths, when there were more intense activities by the authorities, she has not suggested that any of her relatives were harmed or detained by the authorities. Further it does not accept on the evidence before it that she knows 5 or 50 nurses who have fled Fiji for their safety.
The Tribunal finds that the applicant was prepared to make false and changing claims to support a protection visa application. The Tribunal does not accept that she has faced any threats or harm in Fiji nor that anyone has had any adverse interest in her since she has been in Australia.
Activities in Australia: The Tribunal has found that she was prepared to tell untruths about her political involvement in Fiji, and she made a vague attempt to claim, after the Tribunal put to her that she had had no political involvement in Australia, that she had attended two meetings of [an organisation] in 2015; she had been told that they would assist with permanent residence. When asked if they did, she said no. She said that she had not mentioned this previously because she was not interested in them as they just appeared to be looking for money. The applicant did not disagree when the Tribunal put to her that it did not appear that she had political interests in Australia, nor that she was an activist. She also did not disagree when the Tribunal suggested that even if she had attended such meetings, there did not appear to be any reason for anyone in Fiji to have been aware of this.
The Tribunal accepts that the applicant’s province of birth is [Province 1][6], and that most of her relatives remain living there. The Tribunal notes that the applicant provided country information referring to [the organisation][7].
[6] She provided a Birth certificate indicating that she was born in [Province 1].
[7] [Source deleted].
On the basis of the adverse credibility finding, the Tribunal is not prepared to accept her assertion that she attended any political meetings [in] Australia. The Tribunal does not accept that the applicant has had any political interest or involvement in Fijian issues while in Australia, nor that she attended any meetings. As put to the applicant, there did not appear to be credible evidence that because of her province of birth, she faced a real chance of serious harm or a real risk of significant harm. The applicant did not disagree. Further, the Tribunal notes that although she made a written claim that she may somehow experience harm because she has a relative who is a [public official], she forgot to mention this at hearing as a reason to fear harm, and when she was prompted, she was unable to offer any satisfactory reason as to why she would face any chance or risk of harm for that reason. The Tribunal is prepared to give the applicant the benefit of the doubt and to accept that the applicant has a relative who is [a public official]; it finds on the applicant’s own evidence that that [public official] has not been harmed and nor was there any suggestion in her oral evidence that the applicant or any of her other relatives have been targeted for association with such man. It is not prepared to accept the written claim that she has been abused or that people from her village faced or face any harm (which she did not assert at hearing except for the claim that she may one day see an assaulted relative in hospital, which the Tribunal does not accept). The Tribunal finds that the applicant does not have any genuine subjective fear of harm for any such reasons, and it considers that on an objective basis, having regard to the evidence before it including the applicant’s country information, it is not prepared to accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the authorities as she has a relative who is a [public official] or because of her village or province of origin.
The Tribunal notes that the applicant provided pictures of protestors in [another country]; she did not however suggest that she had protested in Australia (or elsewhere) and the Tribunal does not consider these photos to be relevant.
The Tribunal has not accepted that the applicant has undertaken any political activities or had any political involvement in Australia, nor does it accept that there is any reason for her to be so imputed by anyone in Australia or in Fiji. Further, the Tribunal does not accept that the applicant would seek to have any involvement with political activities in Fiji upon return, not because of any fear, but because of a lack of interest and/or motivation.
The applicant’s husband and her status as a woman/separated woman: the Tribunal has significant concerns about the applicant’s evidence about her husband and background. As put to the applicant, it has difficulties in accepting that she has been left by her husband. Although the Tribunal had some doubts as to whether she did have a husband, it is prepared to accept that the references to a husband in the 2013 offshore visitor visa application are genuine, and to accept the marriage certificate that she provided and thus it is prepared to accept that she has a husband in Fiji. The Tribunal is not however prepared to accept her evidence about the separation (the changing evidence as to the dates in 2014 and 2015, the claim that she does not know what has happened to her home, the late claim that she fears harm as a result of her husband having left her), and taking this into account, as well as the adverse credibility finding, it does not accept that the applicant and her husband are separated, nor that he had a girlfriend, nor that she received or fears any mean comments from others. The Tribunal considers that the applicant came here to improve her work and education, and that she will return to living with her husband, with her education and work experience much improved as a result of her time in Australia.
The Tribunal noted that the DFAT report referred to women: overall, DFAT assesses women are at a low risk of official discrimination and a moderate risk of societal discrimination; DFAT assesses that women are at a high risk of domestic violence, at the hands of a spouse or intimate partner, with the situation being worse in rural areas and even worse in the outer islands. The Tribunal discussed this with the applicant and noted that she had not made any such claims to have experienced such harm in the past or to fear such harm in the future and asked if she wanted to comment. She said she did not. The Tribunal considers that the applicant would have told the Tribunal if she considered there was a real chance or real risk that she would face harm as a woman. The Tribunal finds that there is not a real chance of serious harm or real risk of significant harm for this particular applicant as a woman in Fiji, either with her husband, or from others.
Claims about the general country situation/conditions: The applicant’s written documents and country information provided general information; and she claimed that that police and army take the laws into their hands, and democracy is not a reality. Further, the Tribunal noted she had provided reports on police brutality, however it put to her that it was difficult to see why she would face a real chance of serious harm or real risk of significant harm for this reason; she did not seek to comment.[8] The Tribunal accepts that Fiji is generally stable and secure; the 2006 coup was non-violent and did not affect the country’s overall security; and elections in 2014 were calm and free of violence (DFAT Report paragraph 2.48). The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of the authorities, the political situation, human rights concerns, or the general security situation in Fiji.
[8] DFAT Report, including:
The Tribunal noted at hearing that a document she provided suggested that nurses may receive a 5% increase, whereas other documents suggesting that there was one particular nurse who had been offered a reduced salary. The Tribunal put to the applicant that it did not mean that such terms would be applicable to the applicant. In response, the applicant said this is what they are facing because it is a female dominant profession. The Tribunal noted she had also produced country information indicating that police officers were also complaining about their salaries/conditions, and asked whether she was saying that the police too are a female dominant profession. She said no. The Tribunal put to her that country information indicates that the government has been considering efficiencies in the public sector including how to deal with public service salaries and that this appears to be a general application of policies (therefore not relevant to the refugee definition and an exception to complementary protection provisions), further, there is no credible suggestion that nursing is a female profession and for this reason it is being targeted, nor that the applicant herself faces being targeted as a nurse[9].
[9] DFAT Report, including: 2.20: The sectors recording the largest growth in budget allocations are … women, children and poverty alleviation (117 per cent). The sectors recording low or negative (<5 per cent) budget increases are defence, policing, foreign affairs, and the office of the president….2.21 To support growth, the Fiji government continues to invest in infrastructure and implement structural reforms, including state-owned enterprise reform and streamlining business and investment regulations. Deepening external trade remains a stated government priority.
The Tribunal also noted that she had produced documents indicating that there is some poverty in Fiji, but that when considering the applicant, who is highly educated and trained, and has significant work experience; even if the public sector was having some difficulties with salaries, it did not appear that the applicant faces a real chance of serious harm, or a real risk of significant harm. Further, according to her own evidence, she owns half a house, and it seems highly unlikely that she would return and face a real chance of serious harm or real risk of significant harm for financial reasons. In any event the Tribunal has found that she is still in a relationship with her husband and will return and live in their house together. She suggested in her written materials that some people’s homes in Fiji had been adversely affected by cyclones; she did not however suggest that this had any relevance to her, and the Tribunal so finds.
The Tribunal suggested that she would be able to find a job, and she said it will be hard to get into the system of being a nurse again. The Tribunal put to her that even if that was the case there would be other jobs she could do, and she has managed to be continuously employed throughout her career to date. The Tribunal has not however placed any weight on her resignation letter, and it is not satisfied that she has been forthcoming or truthful in relation to her job situation. It is not prepared to accept that she does not or will not have a job to return to. Even if this was not the case (which the Tribunal does not accept), the Tribunal noted that although there are some difficulties with employment as set out the DFAT report[10], it did not appear that she faces a real chance of serious harm or a real risk of significant harm for reason of her financial situation. The Tribunal is not satisfied that this particular applicant faces a real chance of serious harm or a real risk of significant harm in relation to financial or economic matters or security in Fiji, especially given the additional education and work experience she has obtained in Australia.
[10] DFAT Report, 2.30 Fiji’s labour force participation rate in 2016 was approximately 59 per cent. There remained a significant gender disparity in labour force participation: approximately 42 per cent of women and 76 per cent of men participated in the labour force. The official unemployment rate was approximately 6.2 per cent in 2015; however, youth unemployment (18-25 years) is much higher at 18.2 per cent.

The Tribunal finds that the applicant did not make any claim that she faced harm on the basis of her religion as a Methodist.
The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Fiji. Nor does it accept that this is what she faces a real chance or real risk of upon return. The Tribunal is not satisfied that the applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her, or on her behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any of the past harm or threats or adverse interest as claimed.
The Tribunal has accepted that the applicant is an educated female nurse, with qualifications and work experience in both Fiji and in Australia; that she has a husband, house, and relatives in Fiji. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning her claims that she faces a real risk of significant harm.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason (including as a woman, in relation to her husband, in her daily life or financial situation or working, as a result of her province of birth, [a public official] who is a relative, nor for any actual or imputed political reason).
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Fiji, there is a real risk that she will suffer significant harm for the purposes of s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted below.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted below.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

5.1 Fiji has had a long history of functional democratic rule. However, the last 30 years have been peppered with periods of political instability – including four coups, the imposition of martial law and multiple instances of the Constitution being abrogated.
“Security situation: 2.43 Fiji is generally stable and secure. The 2006 coup did not affect the country’s overall crime rate. Elections in 2014 were calm and free of violence. Security services, including police and military, are well resourced and maintain effective control of the country”.
5.9 There have been confirmed cases and credible allegations of police involvement in beatings and assaults; 4.12 In practice, there are confirmed cases and credible allegations of violent treatment of prisoners by the police and military in recent years.

Also, country information contains references to the need for the government to increase efficiency in the public sector: and the government acknowledging difficulties with public service salaries and indicating that this would be reviewed.

Key Legal Topics

Areas of Law

Immigration
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
Natural Justice

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Citations

1517282 (Refugee) [2017] AATA 3028

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2017] AATA 3028

15 December 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice