1600187 (Refugee)

[2019] AATA 809

1600187 (Refugee) [2019] AATA 809 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600187

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Mila Foster

DATE:4 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 January 2019 at 4:34pm

CATCHWORDS

REFUGEE – protection visa – Fiji – actual or imputed political opinion – anti-government social media posts – claims of associating with anti-government group – naming of applicant in report – interaction with military officer – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 December 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Fiji, arrived in Australia as a visitor [in] April 2015 and applied for the visa on 17 July 2015. The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

CRITERIA FOR A PROTECTION VISA

1. 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.

Refugee criterion

1. 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.

2. 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 themselves 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).

3. 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.  

4. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

1. Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

Complementary protection criterion

1. 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).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. 

Mandatory considerations

1. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT published such a report in relation to Fiji on 27 September 2017 (DFAT Report).

CLAIMS AND EVIDENCE PRESENTED BY THE APPLICANT

1. The applicant’s protection visa application included the following:

   a.a protection visa application form completed by the applicant,

   b.a statutory declaration made by the applicant,

   c.a certified copy of the applicant’s Fijian passport,

   d.certified copies of educational and training certificates,

   e.copies of letters and contracts relating to the applicant’s employment in the Fijian public service, and

   f.a photocopy of parts of [a report].

2. The applicant subsequently provided additional documentation to the Department of Home Affairs in support of his protection visa application including a letter dated  [date] November 2015 from [Mr A],[1] a person the applicant calls uncle and is an Australian permanent resident.

   [1] Department of Home Affairs file, [f.141].

3. The applicant was interviewed by the delegate in relation to his protection visa application on 6 November 2015. I have listened to the audio recording of that interview.

4. On review the applicant provided various documents including a copy of the delegate’s decision record, his reasons for seeking review, articles and news reports, and an email his wife sent him in January 2016.[2]

   [2] Tribunal file 1600187, ff.86-87.

5. The applicant testified before me at a hearing held on 20 April 2018 and presented a reference letter dated [April] 2018 from [Reverend B] of [a Church located at Suburb 1].[3] After the hearing he submitted copies of documents he claims are [social media] posts he made under the name of [Mr C] which included images of [Mr A] protesting.

   [3] Tribunal file 1600187, f.112.

6. According to the information provided by the applicant he is [age] year old married Fijian national. His wife and three children reside in Fiji. His name is [the applicant] but his surname was incorrectly spelt as [deleted] on his birth certificate and as a result he is also identified as [Alias 1] on some other documents such as his passport. He obtained a high school education in Fiji, commenced but did not complete tertiary studies [information deleted]. From 2004  until April 2015 he worked for the Fijian [government ministry named] (the Ministry)in [various] roles.

7. In relation to why he was seeking protection, the applicant claimed in his protection visa application that if he returned to Fiji he would be harmed by the military and government because his name appears in [a] Report and he was threatened by a military officer in December 2014. In his review application the applicant also claimed he would be harmed due to his association with [Mr A] who actively criticises the current Fijian government and because he has applied for protection. At the hearing the applicant further claimed he would be harmed due to the anti-government [social media] posts he has made since he arrived in Australia.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. For the following reasons I have concluded that the decision under review should be affirmed.

Country of reference

1. There was nothing on the face of the Fijian passport I viewed at the hearing to suggest that it was not genuine or had been tampered with. Based on the passport and the certified copies of the various certificates the applicant included in his protection visa application I accept that he is known by the names [the applicant] and [Alias 1]. On the basis of those documents and in the absence of any evidence to the contrary I accept that the applicant is a national of Fiji. Fiji is thus the country of reference for the purposes of assessing his claims for protection.   

Findings of fact relating to past conduct and events

1. In making the findings that follow I have had regard to the evidence the applicant has presented including the letter from [Mr A], the reference letter from [Reverend B] and the email from the applicant’s wife.

2. In his letter [Mr A] refers to himself as the applicant’s uncle, details his political activities (which I refer to further below), and states that he was the applicant’s sponsor to come to Australia ‘due to the political crisis that was affecting him and his family while he was working for the Public Service Government in Fiji’. According to the applicant’s statutory declaration[4] and testimony, [Mr A] is not in fact his uncle but a member of his extended family whom he refers to as ‘uncle’. It is thus not apparent how [Mr A] could have sponsored the applicant as a visitor to Australia given only certain close family members can sponsor family members for visits. In any event, I have given [Mr A]’s statement that the applicant came to Australia due to a political crisis no weight. Unlike the remainder of his letter that statement lacks detail. [Mr A] does not describe what ‘political crisis’ affected the applicant or how it had affected the applicant’s family. The applicant himself has not made express claims that his family was affected by a ‘political crisis’. Nor does [Mr A] make any reference to the two specific reasons the applicant gave in his protection visa application for leaving Fiji – the [Report] and the warning he was given by a military officer.

   [4] At [8].

3. I have given no weight to [Reverend B]’s letter. It is essentially a character reference which contains information and opinions that do not directly support the claims for protection made by the applicant.

4. The email from the applicant’s wife is vague. She claims she was told by someone at home that four men who did not say where they were came to her home and asked for her and asked when the applicant would be returning. She does not specify who told her about this. She states that those at home noticed that the men ‘look like they in police or army’ but she does not explain why it was thought the men looked like they were in the army or the police. Further, the applicant has given no other indication that the men returned to his family home or that anyone else came asking for him. I have thus given the email no weight.

[Report]   

1. According to a document provided by the applicant the [Report] was presented to the (then interim and now current) Fijian Prime Minister, Frank Bainimarama, [date deleted].[5] In a section of the report relating to [a particular issue] is [a table] which contains the details of officers in [a] Section of the [Ministry].[6] The applicant is listed in that table as [an] Officer along with [other] Officers, [details deleted].

   [5] [File number], f.16.

   [6] [File number], f.4.

2. The [Report] states that given the number of officers employed in the [Section] and the type of work done [details deleted].

3. The applicant placed great emphasis on the phrase ‘appropriate actions’ and said he feared what that would mean for him. He indicated that he feared it may mean more than investigation; that it could mean prosecution, ill treatment, unfair treatment, and even torture and punishment by the military. He claimed the Fiji Investigation Commission Against Corruption (FICAC) which had been established in 2010 by the Bainimarama government came to investigate the Ministry’s utilisation of [funds].  He said a  friend and one of the people named in the table, [Mr E], was prosecuted for making a mistake on a receipt and his supervisor, [Ms D], was stopped from entering the office for 20 days and when she returned 20 days later she was forcibly removed by FICAC officers.

4. I found the applicant’s testimony about the [Report] to be generally less than clear and forthright. I put to the applicant that having read the report and its recommendations, the report seemed to deal [with another issue]. The applicant disputed that but it took some questioning to elicit from him that those named in the table were sacked or given 3 month rather than 3 year employment contracts. Asked whether he had ever done anything improper at work, the applicant replied that he had not. Asked whether he had been subjected to any unfair treatment as a result of the report the applicant claimed that in 2014 when his three year contract expired he was given a 3 month contract. When I questioned that given he had presented a contract renewing his employment for a year and he been given a very good work reference,[7] the applicant seemed unaware of the one year contract and merely stated that he believed it was for 3 months. When I questioned him later in the hearing in relation to the December 2014 gathering, the applicant stated that shorter contracts had been introduced across the civil service up to the permanent secretary.

   [7] [File number], ff.23,19.

5. Thus, even though the [Report] had been in existence since at least [date deleted] when it was presented to the prime minister, the applicant’s employment continued until he left Fiji in April 2015. He was not sacked and in fact his employment contract was renewed for a year and his [officer] position extended for 3 months in January 2015. The only unfair treatment the applicant was able to point to that he himself had suffered because of the report was that he was given a 3 month contract in 2014 having previously had a three year contract. However, I do not accept that the applicant was subjected to shorter work contracts because he was named in the report given his subsequent testimony that the government introduced shorter contracts across the civil service up to the level of permanent secretary. I note that the applicant claims that some of his co-workers were sacked, prosecuted and escorted from the building. Even if that is true, those actions may have been warranted against those officers and nothing of that nature occurred to the applicant in the years after the report was produced. I therefore find that the applicant has not been subjected to serious harm or significant harm in the past because he was named in the [Report].

Anti-government opinion and December 2014 gathering

1. The applicant claims that at informal end of year gathering in December 2014, he and some his colleagues expressed dissatisfaction about their employment contracts being shorter under the Bainimarama government than the previous Qarase government. The applicant testified that a military officer who he thought one of his colleagues may have brought along told them to stop comparing the governments. The applicant says he argued about the issue with the military officer who then told the applicant to stop raising his opinion against the government or the officer would ‘come down’ on the applicant. The applicant claimed that because of that incident and the [Report] he felt threatened and feared being harmed and so immediately decided to leave Fiji.

2. Questioned about why he believed he would be subjected to serious harm or significant harm as a result of the incident at the gathering given the military officer did not seem to be present in an official capacity the applicant replied that military officers are always on duty and so could make a report at any time. The officer could report them as working against the government and army vehicles could turn up. The military officer knew where the applicant worked and that he was against the government. The applicant said he feared for his life starting work the next day and that the officer might add more to what the applicant had said which would cause the police or army to question him and once that happened you are in different territory. I noted that months passed without anything happening to the applicant. He responded that he kept quiet and tried to make his way out of Fiji.

3. Asked later in the hearing whether he had experienced any problems expressing his opinions prior to the December 2014 gathering the applicant repeated what he had said earlier, that he stayed as low as possible after the warning, he had decided to leave Fiji so he was sorting his travel documents, he could be identified a second time and would face consequences. That response seemed evasive and did not address whether the applicant had been harmed for expressing any opinion prior to the gathering. Asked the question again the applicant replied that he was a Christian and the Methodist Church raised concerns as a group all along after the coup, the Methodists were always against ‘them’ and he was a Methodist but in this case (which I understood to be a reference to the gathering) he was an individual. Again the applicant seemed to intentionally avoid providing a direct response to the straightforward question he was asked. I thus find that the applicant had not expressed an opinion prior to the December 2014 gathering which resulted in any adverse consequences for him and was not imputed with an anti-government opinion for being a Methodist.

4. It is plausible that having had 3 year employment contracts in the past the applicant and his colleagues expressed their dissatisfaction about this change in their work conditions at an informal end of year gathering. I thus accept that this occurred. However I do not accept that the applicant argued about the issue with a military officer at the gathering who then warned the applicant not to continue expressing his opinion about the government. I do not consider it credible that the applicant would engage in an argument with a military officer about an issue viewed as critical of the government if, as the applicant claimed, military officers are always on duty and can report people at any time and the applicant genuinely believed he could be questioned and harmed by the army or police for raising anti-government opinions. Nor do I consider it credible that the applicant feared for his life after the warning given he returned to work and continued working for several months until he left Fiji for Australia without facing any harm. I do not consider it credible that having never faced adverse consequences in the past for his actual or perceived opinion, having received a single warning as a result of speaking out on just one occasion, then keeping quiet as he was told to by the military officer and facing no harm in the months following the warning - the applicant would leave his job, his home country and also his wife and [children] to come to Australia on a visitor visa.

Association with [Mr A]

1. In his letter, [Mr A] stated that he was a strong supporter of the SDL party[8] before the 2006 coup by the current prime minister of Fiji, joined the [City 1] branch of the FDFM an ‘anti-Fiji regime organisation’ after the coup and has been active since then. He said he took part in rallies from time to time and the last rally he attended was when Mr Bainimarama came to Australia prior to the elections in September 2014. Asked at the hearing about [Mr A]’s activity since September 2014, the applicant replied that [Mr A] was an active member of the SODELPHA Party and prepared for visits by the prime minister. He referred to the rally before the September 2104 elections and said there was another in 2017.

   [8] The SDL (or United Fiji Party) was a Fijian political party that was formed in 2001 by Laisenia Qarase and was reincarnated as the SODELPHA party in 2012: Lansford, T. (Ed), Political Handbook of the World, 2015, Congressional Quarterly Press, United States of America, p.484-485.

2. The applicant has consistently claimed that [Mr A] is an extended member of his family whom he refers to as his uncle and that he lived with [Mr A] after first arriving in Australia. I thus accept that is true.

3. [Mr A] provided specific details about his connections and involvement with the SDL Party and FDFM in his letter and the applicant provided photographic evidence after the hearing of what he said was [Mr A] at a 2017 FDFM rally. I thus accept the [Mr A] is not a supporter of the current prime minister and government of Fiji, that he was a member of the SDL party and is an active member of the FDFM in [City 1].

Claims related to protection visa application

1. Asked at the hearing how the Fijian authorities would know that the applicant has applied for protection given it is a confidential process the applicant claimed that they would have a record that he came here as a visitor  and as he has now been here 3 years they will suspect that he sought protection. I put to the applicant that I had not found any evidence that Fijians returning to Fiji had been presumed to have applied for protection despite my awareness of the significant number of unsuccessful protection visa application applicants from Fiji. The applicant’s response was to question whether any failed Fijian asylum seekers actually returned to Fiji. I am unaware how many unsuccessful Fijian protection visa application applicants do return to Fiji however the applicant’s claim that the Fijian authorities would know he has applied for protection given he departed on a visitor visa and the length of time he has been in Australia is speculative. I thus do not accept that the Fijian authorities are aware of or believe that the applicant has sought protection in Australia.

[Social media] posts

1. At the hearing the applicant claimed that four months after arriving in Australia he began making [social media] posts under the name [Mr C]. He said [Mr C] was a nickname and that photographs on [a social media] page would identify him as [Mr C]. On the basis of the copies of the [social media] posts the applicant provided after the hearing I accept that he has made [social media] posts which are critical or unsupportive of the Fijian government, the prime minister and some of its ministers.

2. The applicant testified that the Fijian authorities control everything including the media, social media and communication, that he would be held accountable for the posts if he returned home and feared he would be punished and tortured. I questioned why then the applicant had made the posts if they gave rise to such a risk of harm given he did not have permanent residence here and thus faced returning to Fiji. The applicant’s response was not entirely clear. He mentioned his application dragging on, that he thought he would stay here a while and that he then developed a fear because of what he did here. He said he feared for his life.

3. The claims and evidence presented by the applicant indicate that the only times he has personally publically voiced opinions that would be concern to the Fijian government has been at the December 2014 gathering and in the [social media] posts he made in Australia. Further, according to his testimony he only began making the [social media] posts four months after he arrived in Australia, that is, after he lodged his protection visa application. I have therefore concluded that the applicant has made these [social media] posts for the purposes of strengthening his claim to be a refugee and I am not satisfied that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.

Assessment of future risk of harm in Fiji

[Report]

1. For the following reasons I have concluded there is not a real chance the applicant will face serious harm or significant harm as defined in s.36(2A) if he returns to Fiji because he was named in the [Report].

2. Firstly, there is nothing on the face of the [Report] which suggests to me that the officers named [will] be subjected to serious harm or significant harm or that ‘appropriate actions’ means any such harm.

3. Secondly, the concerns and recommendations in the section of the report in which the table appears is not focussed on [officers] like the applicant but on supervisors [details deleted].

4. Thirdly, even though the report has been in existence since at least [date deleted] when it was presented to the prime minister, the applicant’s employment continued until he left Fiji in April 2015. He was not sacked and the only unfair treatment he was able to point to that he had suffered was that he was given a 3 month contract in 2014 having previously had a 3 year contract. However, I have not accepted that the applicant was subjected to short work contracts because he was named in the report given he testified the government introduced short contracts across the civil service.

5. Fourthly, the applicant’s contract of employment was renewed for a year from January 2015, his acting up role extended for 3 months from January 2015, and he was given what I view as glowing reference for the 3 year period he acted in the role of [officer] from January 2012.

6. Finally, even if others lost their jobs or were prosecuted after the [Report] as the applicant asserted, it does not necessarily follow that the same will occur to the applicant. There may have been reasons for their dismissal or prosecution which are unrelated to the applicant’s circumstances. It is significant that the applicant did not suffer any serious harm or significant harm in more than three years after the report was presented to the prime minister.

Protection visa applicant

1. I have found that the Fijian authorities are neither aware nor have presumed that the applicant has applied for protection. Further, in light of the confidential nature of the protection visa application process in Australia I find that there is not a real chance that the Fijian authorities will become aware of or presume that the applicant has sought protection in the reasonably foreseeable future. I thus find that there is not a real chance that the applicant will face serious harm or significant harm as defined in s.36(2A) if he returns to Fiji because he has applied for or presumed to have applied for protection in Australia.  

Political opinion and association with [Mr A]

1. In assessing the risk of harm the applicant would face if he returned to Fiji for reasons of political opinion I have had to regard to my finding that the applicant has not experienced serious harm or significant harm in the past in Fiji for his actual or imputed opinion against the Fijian government (including as a Methodist church member).

2. I have also considered whether the applicant would continue to make [social media] posts of the kind he has made in Australia if he returned to Fiji. However, as I am not satisfied that the applicant engaged in that conduct otherwise that for the purpose of strengthening his claim to be a refugee, I find that he would neither continue nor wish to make such posts if he returned to Fiji. Further, I am required by s.5H(6) to disregard that conduct in determining whether he has a well-founded fear of persecution for the reasons referred to s.5J(1)(a) which includes political opinion.

3. I have considered the various articles and reports the applicant has presented in support of his claims that he will be targeted for his anti-government political opinion and information in sources I have consulted.

4. The material the applicant submitted included an online new story posted on 31 August 2015 which reported that the Fijian prime minister had made a speech promising to gaol dissidents including those based overseas. However, the story concerns persons including ‘high profile figures in Australia’ who are allegedly seeking to overthrow the elected Fijian government and set up a breakaway Christian state in Fiji. The evidence before me does not indicate that the applicant is or would be perceived to be a high profile figure in Australia seeking to overthrow the Fijian government or establish a separate Christian state in Fiji.

5. The information in the sources I consulted indicate the following:

   a.Fiji has had a democratically elected government since late 2014, various political parties contested the 2014 election including SODELPHA, the election was won by the Fiji First party led by Mr Bainimarama who became the prime minister, and the election was deemed credible by a multi-national observer group led by countries including Australia.[9]

   b.The 2013 Fijian Constitution provides for the freedom of assembly, expression, speech, thought, opinion and publication although there are some restrictions on grounds such as national security.[10]

   c.While there have been breaches of the abovementioned rights in relation to political opinion and activity it is high profile public figures, such as leaders of organisations, who may be seen to challenge the government’s authorities or undermine its legitimacy who are at risk of negative attention such as arrest and detention.[11]

   d.Senior members of opposition political parties, namely those running for office, in Fiji are at moderate risk of being monitored and intimidated by security services but at low risk of arbitrary detention and other harassment.[12]

   e.Leaders of opposition political parties are at moderate risk of being harassed and monitored especially in the lead-up too elections.[13]

   [9] Lansford, p.484; United States Department of State, Fiji 2016 Human Rights Report, pp.1 (USDOS Report); DFAT Report, [2.7], [2.10],[2.33].

   [10] DFAT Report, [2.39]-[2.40]; USDOS Report, pp.8-12.

   [11] DFAT Report, [3.41].

   [12] DFAT Report, [3.46].

   [13] DFAT Report, [3.46].

6. I put to the applicant at the hearing that based on the above information, even if the Fijian government was aware of his connection to [Mr A], it appeared that neither the applicant nor [Mr A] had profiles which would give rise to a real chance of the applicant being subjected to serious harm or significant harm if he returned to Fiji for reasons of actual or imputed political opinion or his association with [Mr A]. The applicant replied that they did not differentiate between the rank or status of people and indicated he was at greater risk because he has sought protection in Australia and had worked in the government.

7. I have found that the Fijian authorities are neither aware nor have presumed that the applicant has sought protection and that there is not a real chance that the Fijian authorities will become aware of or presume that he applied for protection in the reasonably foreseeable future. There is no credible evidence before me to suggest and thus I do not accept that those who have worked in the Fijian civil service are at greater risk of harm for expressing their opinions. Further, I prefer the information in the sources I have consulted which indicates that the Fijian authorities do differentiate between political critics and opponents with higher and lower profiles to the applicant’s assertion that they do not. The applicant has not claimed to be a member of a Fijian political party or organisation or to have participated in activities organised by a Fijian political party or organisation in Fiji or Australia. Therefore, on the basis of the opinions and activities of the applicant (both when having regard to and when disregarding his [social media] posts) and those of [Mr A], I find that while they are critics of the current Fijian government and prime minister neither is a high profile public figure nor leader or senior member of an opposition party or separatist movement or would attract the adverse interest of the Fijian government, prime minister, military, or police for reasons of their political opinions. 

8. For the above reasons, I find there is not a real chance the applicant will be questioned, detained, tortured or subjected to any other serious harm for reasons of his actual or imputed political opinion or his association with [Mr A] if he returns to Fiji. In reaching that conclusion I have disregarded the conduct the applicant engaged in in Australia for the purposes of strengthening his claim to be a refugee, that is, the [social media] posts.

9. For the above reasons and having regard to the [social media] posts, I find there is not a real chance the applicant will be questioned, detained, tortured or subjected to any other significant harm as defined in s.36(2A) for reasons of his actual or imputed political opinion or his association with [Mr A] if he returns to Fiji.

Findings on protection visa criteria

1. On the basis of the findings of fact I have made above and having regard both individually and cumulatively to my findings that there is not a real chance the applicant will face serious harm because he was named in the [Report], he applied for protection, his actual or imputed political opinion, and his association with [Mr A] I have concluded that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Fiji. In making that determination I have disregarded the applicant’s conduct in making the [social media] posts as required by s.5J(6). The applicant is therefore not a refugee as defined in s.5H(1) and I am not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). On the basis of the findings of fact I have made above and considering both individually and cumulatively the findings I have made that there is not a real chance the applicant will suffer significant harm because he was named in the [Report], he applied for protection, his actual or imputed political opinion, and his association with [Mr A], I have concluded that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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.

4. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Mila Foster
Member