1517812 (Refugee)

[2017] AATA 1530

1517812 (Refugee) [2017] AATA 1530 (5 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517812

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:5 September 2017

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

Statement made on 05 September 2017 at 4:01pm

CATCHWORDS

Refugee – Protection visa – Fiji – Imputed political opinion – Supporter of the Social Democratic Liberal Party – Economic welfare of family – Untruthful claims

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 woman in her [age] from Fiji.

2. The applicant most recently arrived in Australia [in] March 2015, as the holder of a [temporary] Visa. She applied for a Protection (Class XA) visa [in] September 2015. On [date] December 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 5 September 2017.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant claims to fear that government agencies and Fiji First supporters will target her because she supports Fiji’s main opposition party. She was subject to verbal insults and some pushing during the 2014 election campaign, and fears that the lead-up to the 2018 general elections will see further mistreatment of opposition supporters. As set out below, the Tribunal is not satisfied that the applicant has any political profile; that she was subject to any serious harm or significant harm; or that she faces a real chance (real risk) of persecution or significant harm if she returns to Fiji. The applicant’s main concerns are her family’s welfare, particularly following Tropical Cyclone Winston and her husband’s unemployment.

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she 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 claims to be a supporter of the Social Democratic Liberal Party (SODELPA) who assisted a relative in his local candidacy in the 2014 elections. In her written statement, she claims that, in her husband’s absence (he was in Australia from 2012), she suffered physical and verbal abuse, and was told to leave the village. She has since clarified that this involved swearing at her, and one occasion when a woman pushed her. She claims that she cannot express her political opinion without being victimised. She fears that she will be at renewed risk in the lead-up to the next elections.

   Background

8. The applicant is a [age] year old woman from [City 1] Fiji. She is an ethnic Fijian (‘South Pacific Islander’), speaks Fijian and English, and gives her religion as Pentecostal Christian.

9. The applicant has lived in various addresses in [City 1], prior to her most recent trip to Australia. In about 2004, she and her husband bought a duplex in [a town], just outside [City 1]. It was severely damaged during Tropical Cyclone Winston in early 2016, and her husband is trying to complete repairs.

10. The applicant studied in [City 1] until [year], when she completed a [course] at [University]. From 1999 to 2002, she completed [another course] at [an educational institution]. She then worked as a [occupation] in [City 1] [from] April 2002 until her departure for Australia in late 2015. She claims to be well-known in the local community.

11. The applicant married in March 2004. Her husband had been living in Australia since 2012. At the date of the application (in September 2015), he was in Immigration detention; he returned to Fiji shortly afterwards. The applicant told the Tribunal that she is in regular contact with her husband. He has been unemployed since his return from Australia, and has been trying to complete repairs to their damaged home. The couple’s [children] [remain] in Fiji. Her husband, children and her elderly in-laws rely on remittances that the applicant sends from Australia.

12. The applicant indicated that she has a [relative] who is an Australian citizen, and she is currently living in Sydney with another relative.

13. The applicant holds a Fijian passport issued in [2007]. It expired [in] 2017. The applicant obtained a new passport [in] 2017, which she presented at the hearing. She said that she had no difficulties obtaining this passport.

14. The applicant first arrived in Australia [in] October 2007, on a [temporary] visa, and stayed for about one month. She returned [in] June/July 2013, and again in June/August 2014. The applicant most recently entered Australia [in] March 2015, also on a [temporary] visa. She extended this once, and [in] September 2015, lodged her protection visa application.

    Evidence

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

    §  The protection visa application form, which includes the applicant’s handwritten reasons for seeking protection.

    §  Various identity documents, such as copies of her Fijian passport (biodata page only), her birth certificate, marriage licence, and [occupation] certificates.

    §  The Department file includes various documents relating to the applicant’s bridging visa applications; her and her husband’s visa status in Australia; and the delegate’s question notes for the interview. These are not relevant to the substance of this decision.

    §  The applicant attended an onshore protection interview (‘Department interview’) [in] November 2015, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of [date] December 2015.

    §  The review application lodged on 23 December 2015 has attached to it a copy of the delegate’s decision record.

16. The applicant provided to the Department and the Tribunal several articles: (a) an article by John Braddock, ‘Fiji PM threatens “severe punishment” for 70 people charged with sedition’, dated 8 September 2015; and (b) several articles from the Fiji Sun, from October 2016 and April 2017, about SODELPA policy-making and activities.

17. The applicant appeared before the Tribunal on 5 September 2017, to give evidence and present arguments. The hearing was conducted in English, which the applicant speaks proficiently. The applicant is not represented in this matter. With the applicant’s consent, a Tribunal staff member observed the hearing. The applicant brought her newly issued Fiji passport to the hearing. She said that she had printed out some general materials relating to SODELPA, but forgotten to bring these to the hearing. However, she confirmed that these were general in nature, and did not relate to her specific circumstances.   

    Receiving country

18. The applicant claims that she is a Fijian national. She speaks Fijian; she has provided a partial copy of her Fijian passport, as well as other identity and academic records; and she is familiar with that country. The Tribunal is satisfied that she is a Fijian national. Fiji is therefore the receiving country for the purpose of assessing her claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    The applicant’s eligibility for protection

19. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal notes that the applicant appeared a little nervous during the hearing, but is satisfied that she had ample opportunity to present her claims and evidence.

20. In the present case, the applicant has indicated her overriding concerns about her family’s economic welfare in Fiji, particularly in the wake of Tropical Cyclone Winston and her husband’s unemployment. However, this does not necessarily rule out her need for Australia’s protection, so the Tribunal proceeds to assess this below. 

    Political involvement   

21. The applicant claims to support SODELPA, one of Fiji’s main opposition political parties, particularly during election campaigns. SODELPA is a ‘reincarnation of the United Fiji Party (better known as the SDL – Soqosoqo Duavata ni Lewenivanua) led by deposed prime minister Laisenia Qarase.’ The SDL was formed in 2001, and initially attracted members from the principal indigenous groups, and the Christian Democratic Alliance.[1]

    [1] 31 Lansford, T. (Ed), Political Handbook of the World, 2015, Congressional Quarterly Press, United States of America, p. 484: <CISEC96CF12895> 

22. A Lowy Institute article described the party’s appeal to voters and the key policies prior to the 2014 election in the following terms:

    SODELPA will be a substantial force in Fijian politics as a party with Christian values and large appeal to i-Taukei (indigenous Fijian) voters. It runs on a platform of promising to restore pre-2006 Fijian democracy and institutions, poverty alleviation and development.[2]

    [2] ‘Fiji Elections’, Lowy Institute, Undated < <CISEC96CF1828> 

23. The applicant claims that the immediate reason for her political activities in mid-2014 was the candidacy of her [relative], [Mr A], in the 2014 general elections. The applicant spoke with ease about the electoral system, and explained that [Mr A] was one of two SODELPA candidates from [City 1], the other being [a named person].[3] The current Prime Minister, Frank Bainimarama, was the main Fiji First [candidate].

    [3] [Source deleted].

24. The applicant claims to have supported [Mr A’s] campaign by handing out his flyers, and sometimes reading through these with local people. She also used to promote his candidacy with colleagues, during work breaks; and donated to [Mr A]’s campaign. In her written statement of claims, she also mentioned that she assisted the campaign by helping to cater for SODELPA members and supporters. As noted in the delegate’s decision record, she said at interview that she and other members of her extended family had helped cater for two large feasts which were part of [Mr A]’s campaign.

25. At hearing, the applicant initially thought that her involvement in the 2014 election campaigned spanned some two months or so, but then agreed that it must have been for about a month, as she was in Australia until [August] 2014.[4] She said that the lead-up to the elections was a highly politicised period, and other SODELPA members and relatives of [Mr A] (and other candidates) undertook the same kind of activities that she did.

    [4] As noted in the delegate’s decision record, which the applicant provided to the Tribunal.

26. The Tribunal accepts that the applicant supports SODELPA, and that she helped [Mr A]’s campaign, for both political and family reasons. The Tribunal finds on the available evidence that the applicant’s involvement was for only the final month or so of the campaign. It finds that her activities were commensurate with those of other SODELPA supporters and members of [Mr A]’s extended family. It accepts that her support for this party and candidate were known locally. However, it does not accept that any of her activities – handing out leaflets, talking to work colleagues, or helping with campaign functions – gave her a political profile. Nor does it accept that her family ties with [Mr A], her position as a local [occupation] or any other factors led the Fiji First party or government authorities to view her as a person of interest.

    Mistreatment

27. In her written statement, the applicant claimed that she unwittingly made enemies when she was supporting SODELPA. She claimed that she was subject to verbal and physical abuse, such that she wanted to disappear from the world altogether. On election day itself, some people raised their hands to strike her. Moreover, she was well-known in [City 1], as a[occupation]. In a period of heightened political tension, she started to feel more unsafe, particularly since her husband was still in Australia.

28. At the Department interview and the Tribunal hearing, the applicant clarified that there had been heightened tension during the election period, resulting in arguments, foul language and on some occasions fighting (particularly if people had been drinking). She had been subject to verbal abuse, as had other family members and SODELPA campaigners.

29. The applicant told the Tribunal that one day, when she was leaving [Mr A’s] home to catch a cab home, five Fiji First supporters came towards her. One of them, a woman, shouted that the Fiji First will win, and pushed the applicant. This echoes the applicant’s claim at the Department interview that a female FFP supporter pushed her and put her hand against her cheek, although she stated that this occurred [in] September 2014, after the results had been announced. The applicant did not claim, and there is nothing to suggest, that she suffered any injuries or other consequences after this incident. As noted above, she travelled from Fiji to Australia in late March 2015, some six months after the elections.

30. The Tribunal accepts that the applicant, on her return to Fiji in August 2014, was surprised at the level of tension in [City 1], including the level of verbal abuse between supporters of the main parties. It accepts that she may have received some abuse, and that there may have been one occasion when a local woman pushed her in an unfriendly manner (although the exact circumstances of this, and whether it was part of a political stoush, are not entirely clear). The applicant also mentioned in her written statement that someone warned her to leave the village, but it is clear that she did not do so until her travel to Australia in March 2015.

31. On the available material, the Tribunal finds that any such tension, verbal abuse and/or jostling did not involve credible threats, serious harm amounting to persecution, or significant harm. The Tribunal finds that the applicant’s written statements – that the physical and verbal abuse were such that she wanted to disappear from the world; and that she felt increasingly fearful and unsafe – are exaggerated and unreliable. It does not accept that she feared for her safety. Nor does it accept that she departed Fiji in March 2015 in fear for her safety, or for any other reasons related to her protection claims.

32. The applicant also claimed that there were other factors that motivated her to leave Fiji in March 2015, such as her frustration at not being able to voice her political opinion safely, and because she witnessed torture victims being treated [in] [City 1]. The Tribunal, having discussed the applicant’s political interests, her circumstances in Fiji and her future intentions, does not accept that she has a political opinion that motivates her to speak out actively (other than during workplace discussions and the like), or that she is traumatised or otherwise affected from seeing victims of torture. The Tribunal prefers instead the applicant’s oral evidence. It finds that these written claims are untruthful, and were submitted for dramatic effect.

    Ongoing political interests

33. The applicant said that she and her husband remain supporters of SODELPA. She has attended some meetings of SODELPA [in Australia], which plans to provide financial assistance to SODELPA candidates in future. She goes to these meetings just to listen and, she implied, for social contacts or support.

34. The Tribunal accepts that the applicant and her husband continue to support SODELPA. However, it finds that their priority is their family’s welfare, and that the applicant does not have a political conviction that motivates her to engage in any form of activism or to seek a profile.

    Summary of findings      

35. The Tribunal accepts that the applicant supports SODELPA, and that she assisted [Mr A] in his 2014 campaign, by distributing leaflets, talking to some local people and helping with campaign functions. It does not accept that she gained any profile through these activities, even locally. It accepts that she may have witnessed and even been involved in some arguing and, on one occasion, pushing. It does not accept that she experienced any other harm, including psychological, verbal or physical. The Tribunal finds that the applicant left Fiji in March 2015 for reasons unrelated to her protection claims, in particular to join her husband in Australia.

    ASSESSMENT: REFUGEE CRITERION

36. The Tribunal assesses whether the applicant has a well-founded fear of persecution for a reason set out in s.5J(1), having regard to the above findings of fact, her future conduct, and relevant country information.

37. The Tribunal does not accept that any of the events in mid-2014 – that is, the applicant’s low-level involvement in [Mr A]’s campaigning, and any arguments or jostling that she may have witnessed or been involved in – make her a person of interest to Fiji First members, supporters or anyone else, in the reasonably foreseeable future.

38. The applicant told the Tribunal that she would probably apply for another [position] [in] [City 1] if she returns to Fiji. She anticipates that further problems will arise during the 2018 election campaign. She attends SODELPA [meetings in Australia], to keep up with developments; and her husband continues to support the party, albeit with no particular role. The applicant’s advice that [Mr A] died in October 2015 suggests that she may not have the immediate family interest in the 2018 election campaign; she commented merely that she is not aware of who the SODELPA candidates will be.

39. In all, the Tribunal accepts that the applicant will continue to support SODELPA, like her husband and many other family and community members. It finds that she may participate in routine discussions with family members, colleagues and acquaintances in next year’s election and, depending on the identity of the local SODELPA candidate (and any family or other connections), provide low-level assistance in their campaigning. It does not accept that her political interests extend beyond this.

40. The Tribunal finds that there is no real chance of the applicant being subject to serious harm as a result of her political preference for SODELPA, or any low-level assistance she may provide to future campaigns. As discussed at the Tribunal hearing, recent country information indicates that the FFP-led government continues to place restrictions on the political activities of opposition parties, through (among other things) monitoring, intimidation and the imposition of administrative processes. The Department of Foreign Affairs and Trade summarised the situation for opposition political parties as follows: ‘Overall, DFAT assesses that senior members of opposition political parties (i.e., those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed, including through the judicial system.’[5] The Tribunal has found no reference, including in the country information that the applicant submitted, to suggest that mere supporters of opposition parties are subject to persecutory harm. This country information, together with the applicant’s past experiences and her future conduct, leads the Tribunal to conclude that she does not face a real chance of being subject to serious harm amounting to persecution for reason of her political opinion, actual or imputed, or any associated reason (such as her family’s political links).

    [5] Department of Foreign Affairs and Trade: DFAT Country Report, Fiji 14 April 2015

1. The Tribunal also finds that the applicant does not have a political opinion that would motivate her to engage in political activities. It follows that she would not have to modify her conduct or refrain from political activities, in order to avoid persecutory harm.

2. The Tribunal notes the applicant’s suggestion that she has a local profile as a [occupation] [in] [City 1], which might put her at added risk of being targeted for political reasons. The Tribunal does not accept that these or any other factors give rise to a real chance of persecution. The applicant also claimed that her husband had previously worked as [occupation] in a [certain] business, but the current government replaced him with their own relatives. It is neither feasible nor appropriate for the Tribunal to assess this or any related claims relating to the applicant’s husband (she also mentioned that he had experienced ‘torture’). However, there is general information about nepotism and political favoritism. As for her own employment prospects if she returns to Fiji, the applicant said that she would like to resume work as a [occupation] in [City 1]; she would need to apply and await the outcome of that process. The applicant did not claim, and there is nothing to suggest, that she would be denied work on the grounds of any political affiliation or other circumstances.  

3. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It is not satisfied that she 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 she returns to Fiji. It follows that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

4. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.

5. The Tribunal takes into account the above findings of fact, its view of the applicant’s future conduct and general country information. It concludes that there is no real risk that she will be subject 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 her, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm, for any reason, if she returns to Fiji.

6. The applicant’s evident concerns about her and her family’s welfare in Fiji relate in part to the country’s economy, the political environment and the impact that Tropical Storm Winston had in the local area. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that these general conditions affect all Fijians, and not the applicant personally. Accordingly, the Tribunal finds that there is no real risk that the applicant will suffer significant harm in Fiji as a result of general political or economic conditions, or the impact of natural disasters.

7. 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 she will suffer significant harm: s.36(2)(aa).

   The applicant’s family circumstances

8. The applicant expressed concern to the Tribunal that she is the sole breadwinner for her family, which consists of her husband, her [children] and her elderly in-laws. Her husband has been unable to find work, and has relied on remittances from her to rebuild their duplex home, which was badly damaged in Tropical Cyclone Winston. She believes that her further stay in Australia until the end of 2017 would enable the family complete the repairs to their home. The Tribunal undertook to record these concerns in the decision. It is unable on the limited available evidence to evaluate them, or consider whether there are possible grounds for humanitarian consideration.

   Conclusion

9. 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).

10. 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).

11. 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

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

    James Silva
    Member

    
    

    ATTACHMENT A: SUMMARY OF 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. The relevant report in this case is DFAT’s Country Report, Fiji, of 14 April 2015.