1601300 (Refugee)

1601300 (Refugee) [2018] AATA 216 (5 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601300
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Ms Christine Long
DATE:5 January 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa

Statement made on 05 January 2018 at 4:26pm
CATCHWORDS
Refugee – Protection visa – Fiji – Ethnicity – Fijian Indian – Social group – Businessman – Victim of harassment and threats – Fear of continued assaults by locals – Credibility concerns
LEGISLATION
Migration Act 1958, ss 5H-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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Fiji, applied for a protection visa to the Department of Immigration and Border Protection; the application is date stamped as received by the Department [in] October 2015. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act.
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 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.
CLAIMS AND EVIDENCE
Claims in Application for Protection Visa
In the application the applicant states that he was born in Fiji in [year]. He indicates that he is Fijian Indian. He states that he speaks Hindi and English. His religion and ethnic group is Hindu, Indian. He states that his occupation in Fiji is/was [an Occupation 1] and that he studied [a course] at [a] University in [City 1] in 2012. He indicates that he has never married. He indicates that he has a brother [and] a sister [who] are both residing in [Country 1]. He states that his stepfather and his mother both have Australian citizenship.
The applicant states that he last arrived in Australia [in] August 2015. He left Fiji legally using a passport in his name issued in Fiji [in] 2015 valid until [2025]. He states that he entered Australia as a [temporary visa holder] (visa subclass deleted) [which] was issued [in] December 2014. He indicates that he had travelled to Australia before his visit in August 2015. He left Australia [in] March 2015 before he re entered Australia [in] August 2015. He states that he has been refused a visa for [Country 1] due to “financial difficulties”.
In his application the applicant states that he left Fiji because people were after him demanding money from him and he was afraid of them as he was staying alone. He believes that the same thing will happen to him if he returns to Fiji. He states that if he returns these people will threaten him and will not let him work and he wont be able to live well at home as he stays alone. He states that on one occasion he was attacked and punched by one of the people in the group that is threatening him because of the money. The people warned him not to go to the police or report the matter or they will burn down his house with him inside. He said that he moved to [Town 1] in Fiji but these people keep following him wherever he goes. He states that if he returns to Fiji the things that were happening to him there will continue and he will get hurt. He states that the police will not help him as he does not know when these people will attack him; the police cannot respond in time and he could be killed. . He cannot relocate within the country as these people will keep following him.
In a statement attached to his application the applicant repeats his claims made in his application forms adding that the people who threatened him were those who were not happy about his success in his small business; they followed him and demanded money from him and threatened him about going to report the matter to police. During the night time they came to where he lived alone and threw stones on his house, swore and demanded money from him. When he returned to Fiji after holidaying in Australia for three months with his family, these things started happening again. He decided to come to Australia again and then he decided to apply for protection here. He wants to stay with his mother who is an Australian citizen and is willing to support him.
On the departmental file there is also a letter of support dated [in] October 2015 from the applicant’s mother requesting that the applicant be granted a protection visa because he is facing a lot of problems in Fiji. She states that he tried to move to another place in Fiji but the things that were happening to him continued. She states there is no one to looks after him in Fiji as he is alone. She states that she will fully support him in Australia and that he will not be a burden on the Australian Government; she provides documents to show her financial position and a copy of her Australian citizenship certificate dated [in] August 2012. A copy of the front page of her Australian passport and a copy of the applicant’s birth certificate are also on the Departmental file.
Interview with delegate
The applicant was interviewed by the delegate about his claims [in] January 2016.
The delegate asked the applicant questions about his claims. He confirmed that there was nothing in his application that he wished to change. He said that the passport he presented was his second passport and he had a previous passport. He had no difficulties getting his [temporary] visa for Australia and he had no difficulties leaving his country using his passport. He said that he had previously applied to visit [Country 1] but he did not have enough money in the bank to get the visa. This was between 2000 and 2010. His sister in[Country 1] was getting married and that is why he applied for the [Country 1] visa.
He has visited Australia on two occasions. The first time he came was to see his mother; she is an Australian citizen and she has lived in Australia for [number of] years. He had problems and told his mother and his mother was worried and told him to come to Australia to have a break. The reason for his second visit was that he told his mother he was having the problems and she told him to come again to Australia. He explained that in Australia he has his mother, his step father and a [relative] whom he named. His [relative] is not an Australian citizen but he is dependent on his wife who is a student.
He has [uncles] and [aunties]; they all live in [Town 2] in Fiji. He has [other] uncle and aunt; they live in [Town 1]. He contacted relatives recently because one of his uncles went [missing]. The applicant said he has his own house in Fiji (his mother’s house) but it is closed up now. His father passed away. His brother and sister in [Country 1] are permanent citizens there. He has lived in the family home in [Town 2] for about [a number of] years. He has also lived in [Town 1]; he spent part of his childhood there. In [Town 2] he lives alone but in [Town 1] if he visits there he lives with his uncle.
The applicant said that he worked full time in [a] company which he names. He ran his own company in Fiji; in 2012 he did further studies and opened his own company. His company is closed for the moment. His business is in [City 1]. He travelled half an hour each day to his business. In March when he returned to Fiji from Australia he went back to his business. Now the building is given back to the owner. The first time he came to Australia he thought the situation in Fiji would get better but the situation continued when he returned there. The situation in Fiji was worse. He decided to apply for a protection visa in Australia. He found out about protection visas when he was looking at the news.
He said he cannot go back to Fiji. He had no intention of coming to stay in Australia. He was happy in Fiji and getting good money. His mother is getting older and he does not want his mother to worry about him. He is her only son in Fiji. She is worried about him because he is on his own in Fiji and he is having problems. When he started his company in 2012 people thought he was getting a lot of money because he was having parties; they also thought he was getting money from relatives who were overseas. These people demanded money from him. While this was happening he was staying alone. These people phoned him and harassed him and when he went to work they contacted him and demanded money. This also happened when he was “on the road”; they demanded money. They contacted him on his business number. He could not change his number because of his clients. These people called him on his mobile and said he had to give them money; they kept on harassing him. On one occasion in October 2012 he gave a person who harassed him in a shop some money. He only gave him about [amount] Fijian dollars one time. The person took the money and went away. There is a group of these people who are local Fijians some of whom he knows. There is a village (which he named) a few kilometres away from where he lives which is a dangerous village. All the criminals come from that village. There is a drinking sport; they drink near his place. These people drink and they stand on the road and harass him when he drives off to work. All these problems started in 2012. In 2012 he was punched once when he was walking on the road; this was in 2012. He was punched because he did not give this person money. He could not do anything about this incident. The police response is not fast in Fiji. They say they do not have transport at that moment. These people last called him on the phone when he was at work. He just ignores the phone calls. They sometimes throw beer bottles at his house. They have not come into his house. He has not been to the police and has not had to get any medical help for anything these people have done to him. These people threatened him in 2012 that they would burn him in the house. They continued demanding money after 2012. When he returned to Fiji from Australia they continued to call him on the phone demanding money. They have not taken action to harm him but he is worried they can do so. A bank manager who was staying alone was killed by them. They broke into the house and killed him. These people who killed the bank manager are in gaol; these are some of the people who still called him and they can do anything. The applicant clarified that when he said he moved to [Town 1] he went for a weekend only and stayed with his uncle. That weekend everything was ok. He cannot move there because of his business.
The applicant said that he does not fear anything else in Fiji except this harassment; he fears that what happened to the bank manager will happen to him. He agreed that these people have not harmed him to date although they know where he lives. He said that they get drunk and they can do anything for money. He agreed he has not told the police about these matters. He has never been refused help from the police. He said that these people have threatened him. If he calls the police in the middle of the night they will not turn up; they do not have a vehicle. He agrees the police will not refuse to help him but if he reports the matter to the police these people will still harass him and his life will be in danger. The police cannot guarantee his safety. They could just break into his house in the middle of the night and the police will not come in the middle of the night; this has been happening in Fiji. The delegate asked the applicant why he has not moved to [other cities] to escape these local people who have harassed him. He agreed he could do this but then said that the life there is expensive and he does not know a place there and he does not have clients there. The applicant said that if he moved to [another city] they could follow him. The delegate asked why that would happen given that these people have not harmed him when he has lived close by.
The delegate raised her concerns that the applicant had returned to Fiji and lived there without harm after coming to Australia previously. He had not claimed protection in Australia when he came the first time. He said that he thought the situation would get better in Fiji when he was in Australia previously. But it became worse in Fiji. These people will do anything for money; that is why his mother is worrying about him. She has been put into hospital because of what is happening to him. This is happening to him because he is getting good money and they think he is getting money from relatives in Australia. He said that he is still having his parties and they think he has money. He has a few friends in his area.
The applicant said that he is afraid and cannot get help from police. Anything can happen to him although he agreed with the delegate that these people have not harmed him in the last three or so years.
Application for Review
Submissions
On 2 November 2017 the Tribunal received submissions from the applicant’s adviser in support of his application for review. The submissions include a statement of the applicant’s background indicating that the applicant was granted a [temporary] visa [for] Australia [in] December 2014 valid until [November] 2015. It is submitted that he first entered Australia [in] December 2014 and departed Australia [in] March 2015. He then entered Australia again [in] August 2015 and applied for a protection visa [in] October 2015.
The submissions also include a statement of the applicant’s claims stating that the applicant is Fijian Indian and the sole remaining family member in Fiji. It is submitted that at the time he left Fiji he was residing in the family village and running a business in [City 1]. It is submitted that he was subjected to harassment from men from his village who are native Fijians because he was a business man and of Indian Fijian background. It is submitted the applicant believes he is being targeted in this way because he is Fijian Indian. It is submitted that this is “a convention reason for the purpose of the Refugee criteria”.
The submission includes country information that supports the applicant’s claims that Indo Fijians are sometimes discriminated against in Fiji. The information includes a statement that since the coup in 2000 the Indo Fijian community in Fiji has been traumatised because of abuses during the events of 2000.
In support of the applicant’s claims it is submitted that the applicant fears continued assaults if he returns to Fiji.
It is submitted that the applicant did not seek police protection because the people who were harassing him threatened to burn down his house with him inside.
It is submitted that the threats against the applicant continued after 2012 and continued up until he arrived in Australia for the second time.
It is submitted that the applicant claims he once swallowed [a liquid] because he was mentally distressed from the events that took place in Fiji. He was admitted to hospital. Because of his mental health and his attempted suicide he may be considered a vulnerable person and as such it is important that he has familial support which he does not have in Fiji.
It is submitted that the applicant fears there would be continued threats to his life in Fiji and his mental health would deteriorate if he returned there. It is unreasonable to expect him to relocate in Fiji if there would be an irretrievable breakdown of his mental health.
In relation to the delay in the applicant making an application for protection it is submitted that mitigating circumstances can be considered in deciding whether the delay was reasonable. In the applicant’s case he provided a reasonable explanation for not applying the first time he came to Australia stating that he was hoping the situation would “simmer down” but it in fact worsened because the people who were harassing him thought he made a lot of money in Australia.
Attached to the submission are three documents relating to the registration and insurance of the applicant’s [business], [business name], in Fiji. Also attached to the submission is a copy of a statutory declaration of the applicant declared [in] October 2017.
Applicant’s statutory declaration declared [in] October 2017 in support of his application to the Tribunal for review
In the declaration the applicant in effect repeats the details about his background and his claims made earlier noting that in Fiji he [started] his [business] in [City 1] in 2012. The applicant however adds information about an incident where he drank [a liquid] due to his depression about the incidents that were happening to him in Fiji. He states that he was hospitalised for one night in a government hospital and then went to a private doctor. The hospital called the police but when they came he denied drinking the [liquid] on purpose.

The applicant declares that the first incident occurred in October 2012 when he was in [Town 2]; a few native Fijian village boys demanded money from him. He refused to give them money but they kept harassing him and they forced him to give them [amount]$. The incidents of harassment which “came in multiple forms”, continued from 2012 until 2014. At his mother’s suggestion he came to Australia for a break. He thought things would get better on his return to Fiji after three months in Australia but they worsened. He states that “they” kept demanding money; they thought he got big money in Australia. They would sit next to his house and throw stones. He then came to Australia again and applied for protection.
The applicant states that he cannot relocate in Fiji because he has been too mentally distressed over the incidents that occurred. His mental health will deteriorate if he is forced to relocate. He declares that when he was living in Fiji his mother asked the relatives to keep an eye out for him as he has been mentally disturbed.
The applicant declares that these people have warned him that if he reports these incidents to the police they will burn his house down with him inside it; he was afraid of their threats so did not go to the police.
The applicant declares that he cannot return to Fiji because he will be subjected to continued harassment, attacks, and threats to his life because he is a Fijian Indian with a business background.
Tribunal Hearing
The applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments in support of his claims. The hearing was conducted in English; the applicant did not request an interpreter. The Tribunal was satisfied that the applicant could understand English well and communicate well in the English language.
At the hearing the applicant produced his current passport issued in [Town 1] in Fiji in [2015]. A copy of the passport is placed on the Tribunal file.
The Tribunal spoke to the applicant about his background and his family in Fiji, his application for protection visa and his claims. He clarified for the Tribunal that the indication in his application that he did not re enter his country legally in March 2015, after returning to Fiji from his first trip to Australia, was a mistake as he was confused by the question in the form.
The applicant clarified for the Tribunal that he was never assaulted in Fiji by anyone, but he was harassed for money and he was afraid of, and threatened by, those who harassed him. The applicant told the Tribunal that the people who harassed him were village people who were not happy about his success with his business because he was Indian and he was getting more money; they thought he had more money because he had parties at his place. He did not go to the police because those who harassed and threatened him warned him that they would burn down his house with him inside if he did so; this was before he went to Australia the first time. Towards the end of the hearing the applicant told the Tribunal that the house he lived in in Fiji was broken into in 2016 and that there is a police report about that incident.
At the hearing, at the request of the applicant, the Tribunal allowed him three weeks, until 29 November 2017, to provide further documents/information in support of his claims; in particular he requested time to provide medical records from Fiji in support of his oral evidence that he tried to kill himself by drinking [a liquid] because of his depression brought on by the harassment and threats he faced in Fiji and also a police report in relation to a break in at his house in Fiji in 2016.
Following the hearing the Tribunal received a copy of a document headed [Town 2] Police Station dated [in] February 2016 stating that the applicant’s house was broken into and that the applicant rang the station to report that an unknown person broke into his house “sometimes last week when he was away overseas.” As at the date of decision the Tribunal has received no other documents or information from the applicant.
FINDINGS AND REASONS
Essentially the applicant claims that he left Fiji and cannot return there because he fears harm from native Fijian men/boys from his village/area who are harassing him, threatening him with harm and demanding money from him because he is a businessman from an Indo Fijian background. He claims that since he has been in Australia those people he fears in Fiji think/will think that he has more money because he has been in Australia and has relatives in Australia. He fears he will be killed like a bank manager who was staying alone in Fiji was killed; like the bank manager he himself lives/lived alone in Fiji. He clarified before the Tribunal that he was never punched or assaulted by anyone in Fiji but “they just harassed me”. He claims that he cannot get protection from the harm he fears in his country; he claims that the people who have harassed and threatened him warned him they would burn down his house with him inside if he reported them to the police and that he did not report the incidents of harassment and threats to the police for this reason. He also claims that he cannot relocate in Fiji to avoid harm there including because he has mental health issues which would deteriorate if he relocated. In submissions it is claimed that the applicant is the sole remaining family member in Fiji; because of his mental health and his attempt to commit suicide he may be considered a vulnerable person and hence he needs familial support which he does not have in Fiji.
The Tribunal accepts that there is independent country information available, including country information referred to by the applicant’s representative in submissions, which indicates that sometimes those of Indo Fijian ethnicity/race suffer some harassment and discrimination in Fiji; (see for example DFAT Country Information Report, Fiji, 27 September 2017, especially paragraphs 3.5 to 3.10). Clearly however the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, if he returns to Fiji, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicant will suffer significant harm.
The Tribunal accepts and finds that the applicant is who he claims to be; he produced his Fijian passport to the Tribunal at the hearing valid until [2025]. The Tribunal also accepts that the applicant was granted a [temporary] visa [for] Australia [in] December 2014 valid until [November] 2015. These details are set out in the Departmental file and also in the submissions dated 1 November 2017 to the Tribunal from the applicant’s representative.
The Tribunal accepts that the applicant’s mother is living in Australia and that his sister and brother are no longer living in Fiji. The Tribunal also accepts the applicant’s evidence at the Tribunal hearing that he has uncles and aunts who remain living in Fiji and that as a young person, until he was about [age] years old, he lived with his father’s brother, his uncle, who remains living in Fiji in [Town 1].
The Tribunal accepts the applicant’s evidence that he travelled to Australia on two occasions; he first entered Australia [in] December 2014, departed Australia [in] March 2015 and returned to Fiji. He then entered Australia again [in] August 2015 and applied for a protection visa in Australia in October 2015.
The Tribunal also accepts that from around end of August/beginning September 2012 the applicant set up and ran his own [business] in [City 1] and that business was doing well during the time he operated it in his country including before he travelled to Australia for the first time in December 2014 and also after he returned to Fiji from Australia until he travelled to Australia the last time in August 2015. The applicant told the Tribunal that his business was doing well before he visited Australia the first time and that when he returned to Fiji and ran the business prior to returning to Australia his business was doing ok and it was profitable, with his main clients being in [City 1]. Also the submission to the Tribunal from the applicant’s adviser dated 1 November 2017 attaches a copy of a document dated [in] August 2012 being an Application for Registration of a [business], [by] the applicant, with the principal place of business being noted as an address in [City 1]. The submission also attaches a copy of a document being a certificate of registration for that business dated [in] August 2012.
The Tribunal does not accept as true however that the applicant left his country and cannot return there for the reasons that he claims. The Tribunal does not accept as true that the applicant fears, or feared at any time, harm in his country for the reasons that he claims. The reason that the Tribunal finds against the applicant in relation to these claims is that it does not accept that he has given/provided truthful evidence to the Tribunal in relation to his claims.
In the Tribunal’s view if the very serious claims that the applicant makes about what happened to him in his country to cause him to leave there were true he would have remembered at the Tribunal hearing the time that these events first arose. When the Tribunal asked him when his problems first arose in Fiji he said that it was in 2014 “the same year I applied for the [temporary] visa to come to Australia”. When the Tribunal reminded him that he had had previously claimed in his statutory declaration made 9 October 2017, which was provided to the Tribunal in support of his application for review, that his problems first arose in his country in 2012 he said that he was confused about the dates and that the problems first arose after he opened the business in 2012 because people were not happy with his success and that he was getting more money. When the Tribunal asked the applicant about one of the incidents of harassment that he claims occurred in Fiji, namely an incident in a shop when he gave $[amount] to a person who demanded money from him because he was afraid that person would assault him, the applicant said that incident happened in 2013 or 2014. When the Tribunal reminded the applicant that in his statutory declaration declared [in] October 2017 he had said that this event happened in 2012 he said that he cannot remember dates. The Tribunal does not accept that the applicant gave a reasonable explanation for why he would not recall the year that he first started to have the problems he describes in Fiji.
Further, in the Tribunal’s view, it is not consistent with the applicant’s claims, namely that he left his country and cannot return there because he has been, and will be, harassed and threatened by local village Fijians, that he returned to Fiji from Australia in March 2015 and then remained living in his/his mother’s home where he had lived for many years, and he continued running his successful business in [City 1], for about five months before departing Fiji again and coming to Australia in August 2015 where he claimed protection in October 2015. The applicant told the Tribunal that before he came to Australia the first time, that is in December 2014, he was harassed for money over the telephone many times and threatened that he would be “bashed” if he did not give these people money. He said that he received several calls a day and calls during the night; he could not concentrate at work because of the harassment and threats. He explained that these people got his number through his work. When the Tribunal asked him why he did not change the number and tell his business clients about the change he said he could not do that because he had a lot of clients and his number was famous; he could not get to his clients. When the Tribunal asked him why he could not block the numbers from which he received these calls he said that these people called from different numbers. He told the Tribunal that he was also followed by these people who drank around where he caught the bus sometimes; they followed him on the road and when he went to work they met him; they threatened to bash him. He told the Tribunal that he did not report these incidents to the police however because he was afraid of these people as he was staying by himself. They said they would burn down his house and this was sometime between 2013 and 2014.
When the Tribunal asked the applicant why he left his country and came to Australia the first time, in 2014, he said that his mother asked him to come and spend time in Australia. He said that he had troubles in Fiji which he told his mother about and his mother told him to come to Australia to relax from work and his problems. He said that he came to Australia because he wanted to spend time with friends, have a break from his work and he thought his problems would go away because he was taking a long break in Australia, around three months. He said that when he came to Australia the first time it was to have a holiday with his mother. He had no intention of staying in Australia at that time.
The applicant then told the Tribunal that when he returned to Fiji he returned to live in the family home where he had been living previously for many years and continued to run his business in [City 1] successfully until he left there to come to Australia the second time, in August 2015. The applicant told the Tribunal that the same harassment and threats resumed one or two weeks after he returned to Fiji from Australia. He told the Tribunal that in fact the problems worsened because those people who threatened him thought he had money. He received even more calls and those who harassed him met him on the street and asked for money. They threw bottles on his roof. He said the fear continued for five months and things became so bad that he tried to kill himself in 2015 by drinking [a liquid]. He said he was admitted to [a] Hospital and saw a private doctor after that for one day; he was on a drip. He said that he could get a medical report about this incident. He said that the police were called because this was an attempted suicide but he denied to the police that he drank the [liquid] deliberately. He told the Tribunal that he did not tell the police at that time, or any other time, about the harassment and threats that he claims drove him to his attempted suicide.
In the Tribunal’s view if the applicant’s evidence about the very serious incidents that happened to him in Fiji were true he would not have returned to Fiji from Australia and continued living in the same place in the same family home for five months, and remained working in his same business in [City 1], to which he travelled each day according to his evidence to the Tribunal, especially given that he had a visa and passport to return to Australia. Also when the Tribunal asked him why he did not move away from his area to avoid harm, for example go to live with his paternal uncle in [Town 1] in Fiji, with whom he had lived as a young person and with whom he told the Tribunal he had stayed and visited, he said that he could not do so because from there it is a one hour drive to work. The Tribunal does not consider that this is a reasonable explanation given the very serious claims the applicant is making about what happened to him in his country and also given that he told the Tribunal that in any event he drove back and forth to work from his own home each day, 5 to 6 days a week, and that took about 30 minutes. The applicant later told the Tribunal that he could not move from his area because he needed support from his family in [Town 2] due to his mental health issues but for the reasons outlined at paragraphs 58 and 59 below the Tribunal does not accept that the applicant suffered or suffers mental health issues as he claims for the reason that he claims.
The Tribunal also does not consider that the applicant gave a reasonable explanation for why he returned to Fiji from Australia in March 2015 given the very serious claims that he makes about what happened to him in Fiji before he left there for the first time in December 2014. He said that he was on a three month holiday in Australia and that he returned to Fiji because he thought the incidents of harassment and threats would stop if he stayed away for a while but he also claims that these incidents had been continuing since 2012. When the Tribunal asked him why he thought the incidents would stop he said that he thought the people demanding money from him might go to work and get the money they needed but he agreed with the Tribunal that according to his claims they had not done that previously, for a number of years.
The Tribunal does not accept as true that the applicant was threatened or harassed in his country at any time for the reasons that he claims and/or that he left his country and cannot return there for the reasons he claims.
It follows from the above that the Tribunal does not accept that the applicant tried to kill himself in 2015 by drinking [a liquid] because harassment and threats suffered by him in his country affected his mental health. The applicant told the Tribunal at the hearing that he first made this claim in his statutory declaration in October 2017. When the Tribunal asked him why he did not make this claim earlier he said that he did not think this information would be useful for his protection visa application. He told the Tribunal that he did not tell the doctor or the police the reason he drank the [liquid] and tried to kill himself. The Tribunal queried with the applicant why he did not think this information would be useful for his protection visa application given that he now claims the attempt to commit suicide was a direct result of the threats and harassment he received in Fiji. The Tribunal told the applicant that the fact that he did not make the claim about taking [the liquid] to kill himself, because he was harassed and threatened in Fiji, until October 2017 causes it to doubt this claim is true. The Tribunal allowed the applicant three weeks following the hearing to provide further evidence in support of his claims about his attempted suicide and his hospital/medical treatment in Fiji but the Tribunal received no further documents or information from the applicant about this claim following the hearing.
In the Tribunal’s view there is no persuasive or plausible evidence before it that supports the applicant’s claims that he has, or had mental health issues or problems. When the Tribunal asked the applicant if he had any counselling or treatment in Fiji for mental health issues/depression he said that he takes pills to relax. When the Tribunal asked him about the pills he said that he just takes painkillers. He also told the Tribunal that he does not get treatment for mental health in Australia as he does not have any money.
The Tribunal also does not accept as true that the applicant’s house in Fiji was broken into as he claims in 2016. Given that the applicant did not mention this claim in his statutory declaration declared [in] October 2017, and also given that country information in relation to Fiji, which was discussed generally with the applicant at the hearing, (for example see DFAT Country Information Report Fiji, September 2017, paras. 5.47 to 49) indicates that document fraud is prevalent in Fiji, and also given that the Tribunal considers that the applicant has given untruthful evidence to it, the Tribunal considers that the copy of the document dated [in] February 2016 described as from the [Police] Station is not reliable evidence of the facts in it. The Tribunal also notes that the applicant told the Tribunal that he did not call police about the break in at his house, that it was his neighbour who went to police about the break in and then e mailed the applicant the police report document. The document itself states however that it was the applicant (who is named) who rang the police station about the break in. The Tribunal considers that the claim about the break in is a recent invention of a claim by the applicant to give him a better chance to get a visa to remain in Australia. Given the findings made by the Tribunal about the document, and the country information about document fraud in Fiji, and given that the Tribunal could not ascertain with certainty to whom it would be speaking, the Tribunal did not contact the telephone contact number on the document about “queries” arising.

The Tribunal considered the letter from the applicant’s mother dated [in] October 2015 provided in support of his application for visa. The letter refers to the fact that the applicant is facing “a lot of problems” in Fiji, that those problems are continuing and that she can support the applicant in Australia. The letter does not state what the applicant’s problems were or are in Fiji and does not state how she knows about his problems. The applicant told the Tribunal however that he told his mother about his problems in Fiji but the Tribunal does not accept that the applicant has been truthful in his evidence about his problems/his claims. The Tribunal places no weight on the letter from the applicant’s mother provided in support of his claims.
For the purposes of the ‘refugee’ criterion, the Tribunal finds that the applicant does not have a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to Fiji.
Further the Tribunal finds that, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicant will suffer significant harm.
CONCLUSION
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).
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).
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.
Ms Christine Long
Member

ATTACHMENT - 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.
…

[2018] AATA 216

5 January 2018

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Immigration

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