1601225 (Refugee)

[2016] AATA 3552

1601225 (Refugee) [2016] AATA 3552 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601225

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Rea Hearn Mackinnon

DATE:8 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 March 2016 at 5:46pm

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 [date] January 2016 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, applied for the visa on [date] January 2016.

   Criteria for a protection visa

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant will be harmed in Fiji because of his relationship to his father.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Nationality

10. The applicant has provided a copy of his passport and birth certificate. The Tribunal is satisfied that he is a national of Fiji. There is no evidence before the Tribunal that he has a right to enter and reside in a third country.

    Background

11. The applicant first entered Australia in October 2010 on a tourist visa. He became an unlawful non-citizen in December 2012. He married an Australian citizen in August 2011. The delegate’s decision sets out the applicant’s visa history. He was granted a series of bridging visas from August 2011 until January 2013. He applied for a visitor visa in November 2012 which has not been decided. He was advised to apply for a partner visa in November 2012 but did not do so. He was apparently unlawful from January 2013 until November 2015. He was refused a bridging visa in November 2015 and remains in immigration detention.

12. The applicant appears to be in an ongoing spousal relationship. His wife attended the hearing. He is stepfather to [number] young children. He has provided a number of letters from agencies in his area and [local] community members setting out some details of his circumstances in Australia and expressing support for him. In particular, the documents indicate that the applicant’s home burnt down in December 2012; that his wife subsequently became pregnant and had a difficult pregnancy; and that their baby was born prematurely and only survived for [number] weeks. The applicant told the Tribunal that he had struggled to manage this series of events and that he has not been able to lodge a partner visa since he was detained because he and his wife are not able to raise the visa application fee.

13. The Tribunal sympathises with the applicant’s situation however, as explained to him, these circumstances are not relevant to his protection claims. 

14. The applicant told the Tribunal that his parents and a paternal aunt and cousins are living in [city] and his married sister lives in [town]. He claims to have only limited contact with his family in Australia. The applicant confirmed that he has maternal uncles living in Fiji but claims that he has had no contact with them as they live in a village in a different part of Fiji. He also claims that there is fighting within his mother’s family as the family did not want his mother to marry his father.  He stated that his paternal uncle lives in his grandmother’s house in [City] but claims that his uncle and father have had a falling out and have no contact. He claims that his sister lived with his paternal uncle for a while but was chased out by his uncle’s family.

15. The applicant initially stated that he has never worked in Australia but then stated that he has worked casually for his [relative] [occupation] and has done other casual farm work. The applicant stated that left school at [age] after completing Year [number]. He did not work in Fiji after leaving school but played a lot of [sport] and [sport] and played for Fiji in [event].

    Claims

16. In his protection visa application, the applicant stated that:

    ·He has read of, and seen on TV, the inhumane treatment carried out  by the military government during 2006- 2013;

    ·He came to Australia in 2010 and had no experience of the crimes carried out by the military;

    ·His father and mother had to leave Fiji because the army ill-treated his father and the only option for them to get away from the army was to come to Australia;

    ·Even though there was an election in 2014, the government of Bainimarama is linked to the military and supported by the military and there is still a possibility of torture, discrimination and death;

    ·He fears that the government and the army will mistreat him because he is his father’s son.

    Past harm

17. In his visa application, the applicant stated that he did not suffer any harm from the military before leaving Fiji. At the hearing, he stated that, every time he went to town, the police would stop him; ask him his father’s name; and then take him to the police station, put him in a room, put up a flag to make the room dark, bash him leaving scars and make him duck walk. When asked how often this occurred he said twice. When asked how long he was held by the police, he said possibly three or four minutes after the beating and that the police opened the door and let him leave. He stated that he had injuries on his face and hand and that he went to a doctor who applied Dettol. He stated that he does not know why the police mistreated him in this way.  The police did not speak to him or ask him any questions, just laughed at him. He stated that he was scared and stayed home after the first beating but got bored and went out again.  The second detention and beating occurred about two months after the first. He left Fiji six weeks after the second beating. When the Tribunal asked why he had not mentioned this claimed harm until the hearing, the applicant stated that he was confused when the police beat him and he has never done anything wrong.

18. The applicant told the Tribunal that his father was a [occupation] who [occupation]. He stated that he does not know why the police were interested in his father as his father hasn’t told him about these things. When asked how he knows that the military mistreated his father, the applicant said he was usually around his parents. He does not know what harm his father suffered. The Tribunal noted, as did the delegate, that the applicant’s father was refused a protection visa in 2013.

    
    
    

19. The Tribunal does not accept that the applicant was detained by the police on two occasions in 2010 after being asked his father’s name and then beaten and mistreated. These are the applicant’s only claims of past harm and the fact that the applicant did not include them in his protection visa application or raise them with the delegate leads the Tribunal to conclude that they did not occur.

    
    
    

20. The Tribunal does not accept that the police targeted the applicant because of his father. The applicant was not able to provide any information about his father’s activities which gives rise to a political or other profile which would cause the police to target and bash the applicant. Had the applicant’s father had a profile which had led the police to detain and bash the applicant and which had led to the applicant’s parents sending him away from Fiji, the Tribunal expects that the applicant would have had some knowledge of this.

21. On the evidence before it, the Tribunal is not satisfied that the military mistreated the applicant’s father or that the applicant’s parents arranged for him to leave Fiji because of this mistreatment. The applicant was not able to provide any information about his father’s activities which would cause the military to mistreat him or any information about how the military mistreated him.

    
    
    

    Future harm
    
    

22. When asked what the government is doing in Fiji now that might cause him harm, the applicant said that he has no idea.  He stated that there is no freedom of expression in Fiji and that he must have done something bad for the police to pick him up in 2010.  When asked if he fears harm in Fiji because of his father, the applicant said that he is worried because of what happened to him before and that his parents sent him to Australia.

    
    
    

23. When asked why he thinks the police will hurt him now, the applicant said that he is not worried about the police; he is worried about going back because he will have nowhere to live. He stated that he cannot live with any of his relatives as there is hate amongst his family (as set out in paragraph 14); that thousands of people are homeless in Fiji since the cyclone; and that sickness is going around. He stated that he won’t be able to get work in Suva as he didn’t finish school and that he won’t be able to support his family and that he just wants to be with his wife and children.

24. When asked if he fears harm from the Fiji government, the applicant stated that they have hurt him before. When asked if he fears harm from the military, the applicant said that he does not know as it has been a long time.

    
    
    

25. For the reasons set out above, the Tribunal does not accept that the police targeted or mistreated the applicant in 2010 or that the military mistreated the applicant’s father. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the police or the military because of his relationship to his father.

    
    
    

26. Country information prepared by the Department of Foreign Affairs and Trade (DFAT) and discussed with the applicant indicates that Fiji is generally stable and secure. The military coup in 2006 led by the current President, Frank Bainimarama, was non-violent and did not affect the country’s overall security. Elections in 2014 were calm and violence free. A new constitution, drafted in 2013, provides for a Westminster system of government and contains a comprehensive bill of rights including freedom of speech, expression, assembly and association, although these rights are reportedly weakened by numerous caveats and the government has discretion to disperse protests and arrest participants.[1]  The applicant has not engaged in any political expression in the past and the Tribunal does not accept that he will do so in the future.  Accordingly, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm arising from any perceived public opinion in opposition to the government or the military in Fiji.

    
    
    

    [1] DFAT, 2015, DFAT Country Report Fiji, 14 April

27. The applicant is an ethnic (indigenous) Fijian and therefore a member of the majority community in Fiji (60%). The Fijian constitution provides for freedom from discrimination on the basis of race and ethnicity and DFAT has reported that government reforms since 2009 have sought to reduce the role of ethnicity in Fijian politics. DFAT has reported that there is no official discrimination against indigenous Fijians and a low level of societal discrimination confined to certain areas of the economy (a lower representation in business, professional services and transport). [2]  In view of this information, the Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm arising from his ethnicity.

    
    
    

    [2] Ibid

28. DFAT reported in 2015 that the male participation rate in the labour force in Fiji is 74% but that unemployment is high in Suva. Indigenous Fijians are engaged in all aspects of the economy and predominate in non-sugar agriculture, primary industries, fishing and fish processing and government. Having regard to this information, the Tribunal does not accept that the applicant will not be able to obtain employment in or around [City], even with his limited education. The Tribunal notes that damage by the recent Cyclone Winston may have placed pressure on some areas of the economy but also notes that there may be increased opportunities in other areas, such as construction. The Tribunal also notes that [City] did not suffer significant damage during Cyclone Winston.[3]

    
    
    

    [3] [Footnote deleted]

29. The Tribunal notes that the applicant has family members in Fiji, including in [City]. Although the applicant claims that there is discord within his family, the Tribunal does not accept that he will not be able to live with or obtain support from his relatives in Fiji, including his paternal uncle, given the importance of kinship in indigenous Fijian culture.[4]  However, even if he is not able to access support from his family members, the Tribunal is satisfied that the applicant will be able to obtain employment and secure accommodation in [City]. The applicant has completed [number] years of high school which would be commensurate with the education level of a significant portion of Fijians. He has lived independently in Australia for several years and has held a variety of casual employment during this time. The Tribunal is satisfied that the applicant will be able to earn a livelihood and subsist on return to Fiji and does not accept that he faces a real chance of serious harm amounting to a threat to his capacity to subsist or a real risk of significant harm arising from an inability to obtain employment or accommodation on return to Fiji.  

    
    
    

    [4] [Footnote deleted]

30. The applicant told the delegate that he also fears returning to Fiji because he will have to do compulsory military service. He did not raise this claim before the Tribunal. In any event, as stated by the delegate, military service is voluntary in Fiji[5] and the Tribunal does not accept that the applicant will be forced to do military service on return to Fiji. 

    
    
    

    [5] CIA, 2010, The World Factbook: Fiji, 24 June

31. Having regard to all of the evidence and findings above, the Tribunal is not satisfied that the applicant has a well- founded fear of persecution for reason of his race, religion, nationality, political opinion or membership of a particular social groups pursuant to s.5J(1) of the Act.

32. Having regard to all of the evidence and findings above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal, there is a real risk he will suffer significant harm if he is returned to Fiji.

    CONCLUSION

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

34. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

35. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Rea Hearn Mackinnon
    Member