1601597 (Refugee)

1601597 (Refugee) [2018] AATA 1420 (4 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601597
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christopher Smolicz
DATE:4 April 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 04 April 2018 at 3:01pm
CATCHWORDS
Refugee – Protection visa – Fiji – Religion – Methodist – Discrimination in employment – Political opinion – Fiji Democracy and Freedom Movement members – Opposition to 2006 coup – Failed asylum seekers – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES

State v Niudamu [2017] FJHC 725
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] HCATrans 323
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 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 6 September 2013 and the delegate refused to grant the visas on 28 January 2016.
The applicants appeared before the Tribunal on 28 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The Tribunal had previously attempted to conduct hearings on 6 September 2017, 7 November 2017 and 15 November 2017. These hearings were unable to proceed due to various issues related to sourcing an appropriate indigenous Fijian interpreter.
The applicants were represented in relation to the review by their registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
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 any country information assessment 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.
Issue
The first named applicant (the applicant) and the second named applicant have submitted their own claims for protection as well as each applying as members of the same family unit.
The issue raised by the applicants in this matter is whether they meet the refugee criteria or come within Australia’s complementary protection obligations because:
·     they are staunch Methodist
·     they were members of the Fiji Democracy and Freedom Movement (FDFM) in Australia
·     they have expressed their opposition to the 2006 coup in Fiji and the present government
·     they are failed asylum seekers who fear harm as a result of time spent in Australia.
The applicant also claims to fear harm from the Fijian government because of his past employment as a prison officer and Chief Steward working in [a certain industry] in Fiji.
It was also submitted that the second named applicant has suffered psychological harm resulting from her observing the ongoing mistreatment of her husband during his work as a prison officer in Fiji.
In considering the claims, the applicant’s representative submitted that it was more appropriate to deal with the applicant’s religious claims as based on his political opinion as a ‘staunch Methodist’.
As discussed below many of the claims advanced by the applicants are overlapping and the Tribunal has considered the claims individually and cumulatively.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is [age]. He was born in [Fiji]. The second named applicant is [age] and she was born in [Fiji]. They are from the indigenous Fijian ethnic group. The applicants are followers of the Methodist Church of Fiji. They married in [year] and have [children] who have remained in Fiji.
The applicants have travelled to Australia on a number of occasions as holders of [visas]. Specifically, the second named applicant commenced travelling to Australia in April 1995 to visit her [relatives] who are [in] Australia.
The applicants have travelled together to Australia on the following occasions:
·     arrived on 27 October 2010 and departed on 24 January 2011.
·     arrived on 11 March 2011 and departed 2 June 2011.
·     arrived on 18 August 2011.
Their [visas] ceased on 18 November 2011. On 15 November 2011 the applicants were granted further [visas] which ceased on 18 February 2012.
From 19 February 2012 the applicants remained in Australia unlawfully until they applied for the protection visas on 6 September 2013.
Summary of substantive claims
The applicant’s claims provided in support of his application were provided in a statement which was received by the Department on 16 September 2013.
The applicant claims he is an active member of the Methodist Church of Fiji. He described himself as a ‘staunch Methodist’. The Tribunal was provided with a reference from [Mr A] of [a] Church of Australia confirming that the applicant worked as a steward in Fiji.
The applicant is a retried prison officer in Fiji. The Tribunal was provided with a reference letter dated [November] 2013 from [a referee]. The letter confirms that in [year] the applicant commenced working for the Fiji Department of Correctional Service (DCS) as a prison officer. He has worked at various correction centres around Fiji and has lived with his family at [a] Compound in [City 1], since [year]. He retired [in] October 2010 at [age]. The letter confirms that the applicant was considered a ‘[details deleted].’ The letter also confirms that the applicant acted in the rank of [deleted] in the Fiji DCS.
The applicant specifically claimed that as a result of his involvement in the church he was overlooked in aspects of his career. He claims younger and less experienced officers were quickly promoted and military personnel with no experience in rehabilitation and community awareness of the prisoners.
The applicant states that from 2002 to 2010 he held the position of [Occupation 2] of [Prison 1] Compound Methodist Church.
He claims that after the 2006 coup d’état the illegal regime of Army Commander Voreqe (Frank) Bainimarama (‘Bainimarama’) kept a close watch banning all public and private meetings of the church in villages and nationally. He claims that the ‘legal’ Prime Minister (Laisenia Qarase) is an ordained member of the church and posed a threat to Bainimarama. As a consequence he believes that the military wants to cut off activities of the church.
He states that in 2008 he held the position of [deleted] for [a] Unit at the DCS, however, a military officer was brought in to head the unit and he was relegated to basic prison duties. The government imposed radical changes to the government institutions including the applicant’s workplace. The changes impacted on his position and he was psychologically affected. He claims his integrity and ego were hurt.
The applicant provided various documents in support of his claims (attachments A to W) which are located on the Department’s file. The Tribunal has had regard to these documents in considering the applicant’s claims.
The applicant claims that in September 2013 he became a member of the FDFM in Australia. He claims that [in] September 2013 he took part in a demonstration held in [City 2]. The applicant claims he attended monthly FDFM meetings in [City 3]. In support of his claim the applicant provided a letter date [November] 2013 from [an official] of the FDFM in Australia. The Tribunal was also provided with online FDFM blog posts depicting photos of the protest activity in Australia.
Second named applicant
The second named applicant declared in her protection visa application that the reason she was leaving Fiji was to accompany her husband after he retired from the DCS. She claims to have experienced psychological harm, daily difficulties with trying to make ends meet and going through hardship with the current, illegal political government of Fiji. She declared that she fears her rights as an individual are being overlooked by security officials and she fears facing a bleak future in Fiji.
The second named applicant has had no active part in political activities apart from her involvement in the FDFM protests in Australia on [a] [day].
She also claims her reason for seeking protection was because she had already been to Australia three times and she likes the life and peace in Australia.
Delegate
The Tribunal was provided with a copy of the delegate’s decision. The decision sets out the applicants’ migration history, a summary of their protection interview and a list of documents provided in support of the claims.
The delegate accepted that the applicants are members of the Methodist Church and are low level members of the FDFM and that the applicant worked as a prison officer and Chief Steward in Fiji. The delegate accepted that the applicants are well respected in the community and engage in church activity and community service.
The delegate had regard to country information which is set out in the decision record and did not accept the applicants are at risk of serious harm in Fiji from the government due to belonging to the Methodist church, being FDFM members or due to the applicant’s role as a prison officer and Chief Steward.
The delegate accepted that the applicant may have been subjected to some discrimination during his employment because of his religious affiliation and role as [Occupation 2], but found that this would not amount to persecution. The delegate noted that the applicant had retired from his job with the DCS in 2010 and would not be subject to the same treatment if he returned to Fiji in the future.
The delegate found the applicant did not have a political profile that would put him within a category of people who were likely to be of adverse interest to the government.
The delegate found that while the applicants were not supportive of the Fijian government, they had not been actively outspoken or public about their political beliefs since 2013. The delegate noted that the applicants did not continue with their activities with the FDFM after they moved to [City 4] in 2013.
The delegate found that the applicants have a number of family members in Fiji who have not suffered any significant harm, which is further evidence that the applicants do not have a political or public profile of interest to the government.
Response to delegate’s findings
The applicants provided the Tribunal with declarations in which they respond to the delegate’s findings.
The applicant claims he faced oppressive conduct every day of his working life. He was denied a promotion [during] his working life. He claims this was because of his church commitments. He claims he was continuously verbally and physically harassed in his job. He was constantly moved within the prison from section to section and had no ongoing position. He was promised a higher rank for short periods and then it was stripped. He claims it was difficult working with non-Christian co-workers because of his belief in handling every situation with love and words of encouragement compared to those who reacted with force. His co-workers did not agree with his beliefs and threatened him and physically pushed him around to intimidate him.
He claims to have been threatened to stop holding church meetings and if he continued he would be arrested by the military. He claims he was first called to the office of his superior and told this message soon after the coup in about 2006 or 2007. He was reminded of it up until his retirement in 2010. He could not consider stopping because it was God who wanted him to tell the people.
He claims that included in the message he was sharing with the people at work was that what the government and military were doing was wrong. He claims that after the coup the military personnel were to be feared.
Other prison officers would beat prisoners. He did not agree with the way his colleagues treated the prisoners. He could not consider stopping because he strongly believes it was what God wanted him to do. He wanted to effect real change on people by telling them the truth. He knew that people were arrested and tortured by the military and he was worried that this would happen to him.
His feelings of being unsafe continued until he retired. He could not sleep properly and lost weight. Even when he retired he was warned to ‘keep his mouth shut’.
He claims there is a network of military personnel that can keep a watch on him. He claims he would come to their attention because of his past action and what he would do in the future. If he goes back to Fiji he ‘cannot be expected to be quiet and not to say and do the things that God wants from me. I will keep speaking the truth of the Bible as it relates to reaching peace, love, truth and joy in our country.’
The applicant said that he agrees that DFAT’s report[1] provided accurate information on the political background to the situation in Fiji, but the applicant claims not to agree with the conclusion it makes about the current situation in the country. The applicant claims that the political situation remains unstable and is insecure for those citizens who do not agree with the government. The applicant noted that the DFAT report confirms that the police and military are still monitoring those who speak against the government, being opposition leaders and some church leaders. He claims the report does not address how this same risk exists for those who are not necessarily opposition leaders, but who oppose the government like himself. The applicant claims these are the people who are not considered by the report to have a high profile. He claims that the risk which exists for people who have a high profile is the same as the risk which exists for ordinary people like him.
[1] DFAT Country Information Report Fiji, 14 April 2015
He claims to have spoken to people in Fiji who know about the situation and would support him in writing but all refused because they are afraid to speak out.
The applicant acknowledged that he may not be known for having a profile in his church and in his former work place, he claims to be well known to have taken the position that he has. He claims that people with lower profiles are also at risk.
The applicant submitted that the only reason he and his wife did not continue with their engagement with the FDFM was because they relocated to [State 1] and they have since disbanded.
The applicants claim that they participated in a protest in [City 3] in 2016. The Tribunal was provided with photographs of the protest activity.
The applicant claims he follows what is happening in Fiji because he speaks to [Relative 1] who is employed as a prison officer. He claims [Relative 1] is experiencing the same issues in his employment and is being shifted around and denied a promotion.
The applicant claims that he has told his [children] to remain silent about the political situation in Fiji and do what is best for their family.
Tribunal hearing
The Tribunal questioned the applicant about his employment history in Fiji and how it is relevant to his claims for protection.
The applicant said that he commenced travelling to Australia in 2010 after he retired from the Fiji Corrections Services where he worked as a prison officer for [a number of] years. He tried to fulfil his duties to the best of his ability. He worked closely with the Methodist church in [City 1]. He claims that his work in the church had an impact on his career.
The Tribunal questioned the applicant about how he was able to financially support himself after he retired from the DCS in Fiji. The applicant said that he has access to his superannuation fund which was paid in a lump sum after he retired in 2010.
He claims that as a prison officer he had responsibility over political prisoners and military personnel and he treated the prisoners well. The Tribunal invited the applicant to expand on his evidence. The applicant said he was a steward in the Methodist church in Fiji. He had knowledge of the Bible. He tried to say and do things according to the teachings of the Bible. The Tribunal asked the applicant to explain how his religious beliefs conflicted with his work. The applicant claimed that there was a contradiction between the teachings of the Bible and working as a prison officer. The applicant did not provide further detail.
The Tribunal noted that he had worked as a prison officer for over [number] years and invited the applicant to provide further evidence about the conflicts. The applicant said that he would be doing his duties and was regularly transferred to different departments. The Tribunal again prompted the applicant and asked if he could provide further detail about the conflicts he encountered.
The applicant said that before he commenced work in the church he carried out his duties as was expected. He spoke harshly to the prisoners when he gave his orders. He commenced studying the Bible in 2000. There was no other male person in the prison and he took on the role of steward. After he studied the Bible teachings, he began to speak in a more humble manner to the prisoners.
The Tribunal found the applicant’s evidence at the hearing vague and lacking in detail. For example, in response to the Tribunal’s questions the applicant did not claim at the hearing that his co-workers threatened him and physically pushed him around to intimidate him or that he was threatened to stop holding church meetings and if he continued he would be arrested by the military after the coup in about 2006 or 2007. The Tribunal finds that the applicant’s written claims in response to the delegate’s findings are exaggerated and embellished and not consistent with his evidence at the hearing.

The Tribunal referred the applicant to current online information from Fijian Corrections which confirms that there is a prison chaplain assigned to work with the prisoners. The Tribunal questioned the applicant about religious practice in [Prison 1]. The applicant said that prisoners were able to attend mass every Sunday. Other religious groups were able to practice their religion outside the church. The applicant said that as a steward he would assist the chaplain. It is clear from the applicant’s evidence that his role was that of steward and that he was not a minister working in the prison.
The Tribunal referred the applicant to the reference letter dated [September] 2013 written by [a referee]. The Tribunal noted that the letter described the applicant as a ‘reliable, hardworking, and dedicated officer who always sacrifices his time to his work.’ The Tribunal finds that the letter is not consistent with the applicant’s claims that he was considered a threat by the prison authorities and that he was denied promotion. For example the Tribunal notes that in 2005 and 2006 he was promoted to act in the rank of [deleted] in the Fiji Corrections Service. The Tribunal told the applicant it would appear from the letter that he had a lengthy good career and was a valued employee working as a prison officer. The applicant maintained that he was denied promotions and was only acting in the position of [deleted] for [short] periods.
The Tribunal explained to the applicant that it must assess his claims looking to the reasonably foreseeable future. The Tribunal noted that he retired as a prison officer in October 2010 and has not been working for over seven years. The Tribunal questioned the applicant what he fears will happen to him if he returns to Fiji in the future.
The applicant claims he used to work with political prisoners and therefore he has a profile which will put his life in danger if he returns to Fiji. The applicant referred the Tribunal to reference letters from former work colleges ([Person 1] and [Person 2]) and letters from political prisoners ([Person 3] and [Person 4]) in Fiji. The applicant claims that according to the information in the letters if he goes back he can be imprisoned tortured and killed.
The Tribunal questioned the applicant about the letters sent from the prisoners at the hearing. The Tribunal told the applicant it had concerns about the authenticity and reliability of the letters. For example, the Tribunal told the applicant it was surprised how high profile political prisoners would be permitted to send typed letters from prison making political statements against the government of Fiji in support of his protection visa application in Australia. For example the Tribunal notes that the government in Fiji reviews all prisoner letters and, in most cases, has the authority to seize them.[2]
[2] US Department of State, Fiji 2016 Human Rights Report, p.3, <>
The applicant said that [Relative 1] works in the prison system in Fiji and secretly smuggled the letters out of prison. The applicant conceded that [Relative 1] had prepared the letters but claimed they were signed by the prisoners.
The Tribunal notes [Person 3]’s letter claims that the applicant was an advocate against the coups and became a member of the FDFM in Australia. The letter claims the applicants’ names are on a ‘Black List’ and they will be arrested if they return to Fiji.
The Tribunal notes that [Person 4]’s letter also states that the applicant was a member of the FDFM. The letter claims that the applicant’s involvement with the Methodist church in upholding the faith of Christianity in and outside prison saw him as a ‘Threat to the Security of Correctional Department and also the government of the day’.
The Tribunal told the applicant that it seems very unusual that a prisoner in a Fijian prison would know anything about his actions in Australia or that he was a member of the FDFM especially since he (the applicant) had retired from the work at the prison in 2010 and ceased his involvement in the FDFM in 2013.
The Tribunal also told the applicant it was concerned how the prisoner [Person 4] knew the applicant’s name was on a ‘Black List’ and that he would be arrested and tortured if he returned to Fiji. The applicant claimed people still got information in prison.
The Tribunal finds that the claim that the applicant was an advocate against the coups in Fiji is also not supported by the applicant’s evidence at the hearing. For example, the Tribunal notes that when questioned at the hearing the applicant conceded that he had no involvement in the 2006 coup in Fiji and did not take part in any political protest activity in Fiji. The Tribunal does not accept the applicant was politically active and opposed to the government in Fiji and is a person of interest to the authorities in Fiji.
The Tribunal find that the letters are self-serving, lacking objectivity and have been prepared by [Relative 1]. The Tribunal does not accept the letters were written by the authors or represent their evidence. The Tribunal has given the letters little weight in assessing the application.
In assessing the applicant’s political profile the Tribunal also notes that the applicant had provided the Department with a copy of an identity card issued by the Republic of Fiji that indicated he was a ‘Counting Clerk’ in the 2006 General Election. The applicant confirmed that he was a counting clerk during the 2006 election because he worked outside the government. The Tribunal finds that the applicant’s involvement in the 2006 election suggests that he was a trusted employee and does not support the claim that he has the profile of a political activist who was a threat to the government. The Tribunal also notes that the applicant continued in his employment with the DCS after the 2006 coup which would suggest he was not considered a threat to Bainimarama’s new government at the time.
The Tribunal has also had regard to the supporting letters provided by the applicant’s former colleges who worked with him at [Prison 1]. The Tribunal had regard to the content of the letters and did not consider it necessary to take evidence from the witnesses at the hearing. The Tribunal accepts that [Person 1] and [Person 2] worked with the applicant when he was a prison officer in Fiji. The Tribunal however, finds their evidence of limited assistance in supporting the applicant’s claims.
For example, [Person 1] states that the applicant preached to the prisoners. He states that some of the prisoners were rebels who were members of the Counter Revolutionary Warfare unit (CRW) in Fiji. He claims that Bainimarama hates those who are against him, including the rebels. He claims that the applicant would be at risk in Fiji because he ‘ministered’ to the rebels and is openly against the current government. The rest of the statement relates to [Person 1]’s own personal experience and has limited relevance to the applicant’s claims. As discussed above the Tribunal questioned the applicant about his employment as a prison officer and does not accept that he openly spoke out against the government at the time.
[Person 2] claims to have worked with the applicant for [number] years. He claims the applicant worked as a steward and minister to the prisoners as well as parishioners of the church. He claims it was the applicant’s duty to tell non-believers about the faith. He states that ‘Bainimarama is against ministers of our church’ and he did not want prisoners being ministered to. He states that some of the prisoners the applicant ministered to were rebels against the government. He states that in his view the applicant would be at risk if he returns to Fiji because he spoke out against the government. The Tribunal accepts the applicant was a staunch Methodist who worked as a steward in [Prison 1]. He did not work as a minister. The Tribunal does not accept the applicant’s role as steward or his religious beliefs brought him into conflict with the prison authorities.
The Tribunal has also had regard to correspondence provided by [Mr A], [who] confirms that the applicant was a steward of the church. The Tribunal has also had regard to the correspondence issued by [a named person], a [person] in the [Prison 1] Methodist Church. The letter makes no reference to the applicant’s political activism within the [Church] or the prison system in Fiji.
The Tribunal finds that the applicant held the position of [Occupation 2] of the [Prison 1] Prison Compound Methodist Church from 2002 to 2010. The Tribunal finds the applicant was invited to work in the position by the DCS until he retired. The Tribunal finds that if the applicant was a threat to the Bainimarama government the applicant would not have been permitted to continue in this role after the coup in 2006.
As detailed above the Tribunal questioned the applicant about his work as a prison officer and steward and how it was relevant to his claims. The Tribunal found his evidence at the hearing in this regard to be unremarkable. The Tribunal accepts that when the applicant commenced studying the Bible he became more absorbed in his religious beliefs and he started to treat the prisoners (including political prisoners) with greater compassion and respect and did not want to use harsh language.
The Tribunal accepts that the applicant’s Christian beliefs may have been at odds with some aspects of his work as a prison officer and the harsh reality of prison culture. The Tribunal also accepts the applicant may have taken an interest in the religious welfare of the prisoners, including political prisoners, in his role as steward at [Prison 1].
The Tribunal does not accept the claim that the applicant was a threat to the security of the DCS or the government of the day. The Tribunal does not accept the applicant was viewed as anti-government when he worked as a prison officer and steward and this now puts his life in danger. There is no evidence that he was a threat to the government or faced serious harm/significant harm during his period of employment in Fiji or at any other time. As stated above the applicant retired at [age] [with] full superannuation entitlements. The applicant has now been retired from the DCS for over seven years. His career was not prematurely ended due to his political or religious profile after Bainimarama came to power in 2006.
The Tribunal does not accept that the applicant’s work as a steward working with political prisoners has brought him to the adverse attention of the Fiji authorities and placed his life in danger should he return to Fiji. The Tribunal does not accept the applicant’s conduct imputed him with an anti-government political opinion.
Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm because of his religious beliefs and his work with political prisoners (rebels) when he was employed as a prison officer and steward at [Prison 1] in Fiji. The Tribunal finds that the applicant’s fear of persecution because of his imputed political opinion and religious beliefs as a staunch Methodist is not well-founded.
As a consequence the Tribunal is also not satisfied that if the second named applicant were to return to Fiji in the foreseeable future there is a real chance that she would face serious harm because of the applicant’s past employment as a prison officer and steward.
Next, the Tribunal has considered the applicants’ claims having regard to their conduct since they arrived in Australia in August 2011.
The Tribunal questioned the applicant about his political involvement in Australia. The Tribunal found the applicants’ evidence vague and lacking in detail. The Tribunal had to prompt the applicant in order to elicit his claims.
The applicant claimed when he was in [City 3] he joined an organisation for Fijians in Australia. He said Mereoni Kirwin assisted him to apply for the protection visa. He could not recall the name of the organisation. After further questioning the applicant said he joined the FDFM in 2012 and was a member until 2013. He paid a $20 fee. The applicant provided the Department with a $20 cash receipt dated [September] 2013 issued to him by the FDFM in support of his membership.
The Tribunal questioned the applicant about his involvement in the organisation. The applicant said he attended four or five meetings however since he left [City 3] and travelled to [City 4] in 2013 he has had no more contact with the organisation. The Tribunal finds that the applicant joined the FDFM so that he could obtain assistance with the protection visa application.
When asked about his protest activity in Australia the applicant said he was protesting against the Fijian constitution. He could not recall the date. After further questioning he said it was 2013. The applicant was unable to recall other protest activity he had taken part in, in Australia. After further questioning the applicant said he took part in a protest activity in [City 2] in 2012. He said it was to do with rights of citizens to speak out and land issues.
After further questioning the Tribunal had to prompt the applicant and refer him to his statement where he claims he took part in protest activity in 2016 in [City 3]. The applicant could not provide further evidence and claimed it may have been a mistake. The Tribunal finds that the applicant’s evidence about his political activism in Australia was vague and not consistent with his claims.
According to the delegate’s decision the applicants claimed that they participated in [a protest] [in] September 2013 in [City 2] where they marched and held up banners. The applicant claims to have attended monthly FDFM meetings in [City 3]. The second named applicant claims not to have taken any active part in political activity apart from attending [a protest] [in] September 2013.
During the hearing the Tribunal referred the applicant to various photographs of alleged protest activity in Australia which he had provided in support of the application. The applicant claimed they were taken in [City 3] in 2013 in front of [offices].
The Tribunal asked the applicant to explain the purpose of the photos. The applicant said that Mereoni Kirwin told them to take the photos as evidence that they participated in protests and use them in support of his claim.
The Tribunal referred the applicant to one of the photos which depicted a banner which stated ‘[deleted].’ The Tribunal observed that the protest could not have occurred in 2013 because the banner was referring to a 2015 report.
The Tribunal questioned the applicant about the banners appearing in the photos. The applicant was unable to provide any information about the purpose of the banners or what motivated him to take part in the protest activity. After further questioning the applicant said they were told to take part in the protest.
The second named applicant said that she and her husband took part in a protest march and held up banners. The second named applicant said she did not create the banners but was present. She was told by her lawyer that she needed to show evidence that they participated in the protest and she got the photos from other people. She claimed the protest was against the changes to the constitution. The second named applicant said that they were told by Mereoni Kiriwin that afer Fiji was granted independence and colonisation ended that they would be given back their land.
The second named applicant said they also took part in a protest in front of [a building] in [City 2] in 2014. When asked to explain what was the purpose of the protest the applicant was only able to say that someone came to speak to them. There were about 180 to 200 people and they were only participants.

100. The Tribunal also found the applicants’ claims that they took part in protests in [City 2] in 2013 vague. For example, when questioned at the hearing the applicants knew very little about the protest activity or the date of the protest.
101. The Tribunal does not accept that their involvement in the FDFM or protest activity would bring them to the attention of the authorities in Fiji.
102. The Tribunal explained to the applicants that it had concerns about their motivation for taking part in anti-Fijian government protest activity in Australia in 2016. The Tribunal told the applicants that it would appear the photos were taken after their visa was refused by the Department.[3] The Tribunal told the applicant that it would seem strange that they would be protesting against the new Fijian constitution in front of [a certain building] in [City 3]. The Tribunal finds that the sole purpose for taking part in the protest in 2016 and providing the photos was to strengthen their claims. The Tribunal has had regard to s.91R(3) and disregarded this evidence in assessing the applicants’ claims.
[3] The applicant’s migration agent submitted that the protest occurred on [date].
103. The Tribunal notes that the applicant has claimed in his statement that while he may not be known for having a political profile in his church and in his former workplace he claims to be well known for having taken the position that he has.
104. The Tribunal has had regard to the applicants’ profiles and political and religious activity since they arrived in Australia. DFAT assess that high profile figures, including leaders of organisations who may seem to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention such as arrest or detention. A DFAT country information report also states ‘that senior members of opposition political parties (those running for office in Fiji are at moderate risk of being monitored and intimidated by security services. They are low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at moderate risk of being harassed and monitored, especially in the lead up to elections.’[4]
[4] DFAT Country Information Report Fiji, 27 September 2017, at [3.41] and [3.46]
105. The Tribunal accepts that the applicants may not be supporters of Bainimarama or his government. The Tribunal finds however, that neither of the applicants has a political profile which would bring them to the adverse attention of the Fijian authorities. They are not political activists, they are not members of any political party in Fiji and they have not taken part in protest activity in Fiji.
106. In assessing the applicants’ political profile the Tribunal has also considered their association with Mereoni Kirwin and the FDFM in Australia. In particular the Tribunal notes that the applicant claims he and his wife would be arrested because they gave Mereoni Kirwin money to send to Fiji to fund legal costs of supporters. The Tribunal asked the applicant if there was any evidence to support his claims. The applicant said he had no evidence and would give some money during a collection held at meetings in [City 3]. He said that he and his wife gave $20 each in total.
107. The Tribunal notes that prior to the hearing the applicant’s agent referred the Tribunal to a recent criminal prosecution of a number of Fijians who were found guilty by Fiji High Court of sedition.[5] It was submitted that the applicants consider the trial to be evidence of the type of proceeding which could ensure upon their return to Fiji because of their past criticism of the government or any future actions that could arise. It was also submitted that the applicants’ lives are in danger because of their connection to Mereoni Kirwin.
[5] State v Niudamu [2017] FJHC 725
108. The Tribunal questioned the applicant about how the sedition charges were relevant to his claims. The applicant had difficulty responding to the Tribunal’s question. After further questioning he said that the prosecution was to secure control of the western division of Fiji which is the source of resources which generate revenue for the government. He could not provide further evidence about the sedition charges or how they were relevant to his claims.

109. The Tribunal notes that according to the Fiji High Court judgment sedition charges stem from a Unilateral Declaration of Independence (UDI) to form a sovereign Christian state within the territorial boundaries of Fiji (Ra Province). The judgment states that Mereoni Kirwin promoted the plan from Australia.
110. The Tribunal notes that those who were convicted of sedition had signed the UDI and/or were to serve as Cabinet Ministers in the ‘Ra Christian State Government’. There is no evidence that the applicants had any involvement in promoting the UDI in Australia or have any association with those who were charged in Fiji.
111. The Tribunal also notes that those who were convicted of sedition signed the UDI in late 2014 which was after the applicants had ceased their involvement with the FDFM in 2013. The timing would suggest that the applicants could not have donated money in support of this legal action. The Tribunal also notes that correspondence provided by FDFM makes no mention of the fundraising. The Tribunal finds that the applicant has manufactured this evidence in support of his claim and has disregarded the new claim.
112. The Tribunal finds that the applicants only became members of the FDFM to obtain support for their protection visa application and does not accept the applicant or his wife donated money which was to be sent to Fiji to fund legal proceedings associated with the sedition charges.
113. The Tribunal accepts the applicants met Mereoni Kirwin in [City 3] in 2012-2013 and she may have provided them with some migration assistance. Ms Kirwin has not provided any statement or evidence in support of the applicants’ protection visa applications. The Tribunal finds the applicants had no involvement in the UDI, secessionist movement or sedition charges. The Tribunal finds that the applicants have not continued their involvement with Ms Kirwin and the FDFM since they left [City 3] in 2013.
114. In assessing the applicants claims the Tribunal has also had regard to the following country information prepared by DFAT regarding the treatment of FDFM members in Fiji:
3.51 The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody.
3.52 In August 2015, several media outlets reported around 40 indigenous ‘rebels’ had been arrested for conducting ‘military-style training’ in Ra province in the north of Fiji’s main island, Viti Levu. Police officers were deployed to the province in search of alleged firearms used, but none were reportedly found. On 16 August 2015, 16 people were reportedly arrested in Nadroga-Navosa province for causing communal antagonism and sedition for signing the ‘Provincial Institutions of Self Government’ of the Nadroga Navosa Christian State. During the week of 10-15 August, a further 37 individuals associated with the Ra Sovereign Christian State were arrested. The pro-government Fiji Sun was particularly vocal when reporting on the issue, often conflating the incidents and alleging links to the main opposition political party, SODELPA. Credible sources agree that the government sensationalised the situation for political gain.
3.53 Provincial councils in Ra, Ba and Nadroga-Navosa provinces and chiefs have distanced themselves from the groups involved and pledged their allegiance to the Bainimarama government. The SODELPA opposition party officially denied any links to the groups involved.
3.54 At the time of writing, 16 individuals from Ra province remain on bail on sedition charges for allegedly attempting to form a separate Christian state in their province. They appeared in Lautoka High Court on 16 March 2017, pleaded not guilty to the charges and bail was extended. The trial began on 14 August.
3.55 A separate sedition trial involving 14 remaining individuals from Nadroga province, charged with two counts of sedition for their alleged involvement in attempting to establish a separate Christian state, will also take place at Lautoka High Court. The group appeared in court on 29 March 2017 and pleaded not guilty to the charges. The trial will reportedly proceed on 20 October 2017.
3.56 Overall, DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.

115. As stated above the applicant described himself as an ordinary person in Fiji. As detailed above both applicants confirmed at the hearing that they were not involved in politics or protest activity in Fiji.
116. Having considered the country information and the applicants’ profiles the Tribunal is not satisfied that there is a real chance that the applicants will face serious harm if they return to Fiji in the reasonably foreseeable future because they took part in protest activity in Australia, because they were members of the FDFM and were associated with Mereoni Kirwin at the time they lodged their protection visa applications. The Tribunal finds that the applicants’ claim that they will face persecution in Fiji because of their imputed political opinion is not well-founded.
Religion
117. The Tribunal has regard to the following current information provided by DFAT regarding the Fiji government treatment of Methodists in Fiji:
The Methodist church in Fiji claims 200,000 members. Historically, it has been Fiji’s most politically influential religious organisation. Members are overwhelmingly indigenous Fijian, though the Church also has approximately 8,000 Indo-Fijian members. Separate services are held in Fijian, Hindi and English according to the needs of particular congregations.
…
At times in recent years the interim government has restricted the Church’s public meetings. The Church was required to apply for permits to hold public meetings, under the provisions of the Public Order (Amendment) Decree 2011, and permits were frequently withheld or issued with strict conditions. Generally, restrictions on the Methodist church began in 2009 and were gradually loosened thereafter. As of 2017, there are no remaining restrictions on the Church’s ability to hold public meetings.
Overall, DFAT assesses that there is now little to no official or societal discrimination against members of the Methodist church based on their religion.

118. The Tribunal accepts that the applicant and his wife are staunch members of the [Church] and have been active volunteers in the church since they arrived in Australia. This is evident from the numerous reference letters and photographs provided by members of the church community in [State 1], including [Rev A], [of the] Congregation. The Tribunal accepts the applicants are likely to continue their involvement and volunteer work with the Methodist church in Fiji.
119. The Tribunal finds however, that there is no evidence to support the claims made by [Rev A] that while living in Fiji the applicants have voiced their concern about the practices of the ruling government (political opinion). There is no evidence to support the claim that because of their devotion to their Christina faith they have spoken out against injustice towards others in Fiji.
120. The applicant has now retired from the DCS. He is no longer employed by the government of Fiji. The Tribunal finds that the applicants are now free to practice their Methodist religion in Fiji and volunteer in community activities organised by the church in the future.
121. Having considered the country information and the applicants’ profiles the Tribunal is not satisfied that there is a real chance that the applicants will face serious harm because of their religious beliefs if they return to Fiji in the reasonably foreseeable future. The Tribunal finds that the applicants’ fear of persecution because of their religion is not well-founded.
Delay
122. In assessing the applicants’ claims the Tribunal has also had regard to the delay and timing of the protection visa applications since both applicants first travelled to Australia.
123. The applicant said that they were not sure of the procedure for applying for the visa. He said that when he first arrived in Australia he did not appreciate how serious the situation was in Fiji. The second named applicant confirmed that when they arrived in Australia (18 August 2011) their three month visa expired and they applied for a second visa (15 November 2011) and they went to see a lawyer to obtain advice and were told about the costs of putting papers together. They did not have the money and went to the ‘Fiji association’ and asked for advice and completed the application.
124. The Tribunal finds that the applicants waited nearly three years before they applied for a protection visa. Tribunal would have expected that the applicants would have applied for protection as soon as they arrived in Australia rather than wait for their visas to expire and remain unlawfully in Australia for over one and a half years before applying for protection.
125. The Tribunal finds that the delay and timing of the protection visa applications is relevant in assessing the applicants claims that they fear harm in Fiji.
126. The Tribunal also finds the applicant and his wife were able to obtain Fijian passports and travel to Australia on a number of occasions. They first arrived in Australia together in October 2010 soon after the applicant retired from the DCS. They returned to Fiji in January 2011. They arrived in Australia a second time in March 2011 and voluntarily returned in June 2011.
127. The Tribunal also finds that the applicants’ decision to voluntarily return to Fiji needs to be assessed against the political unrest which was present in the country at that time. Specifically the Tribunal notes that political instability and religious tension was at a high level in late 2009[6] and in the circumstances it would seem inconsistent that the applicants would voluntarily seek to return to Fiji in 2010 and 2011. The Tribunal further finds that the applicants have not claimed that they experienced any adverse attention from the authorities when they returned to Fiji.
[6] DFAT Country Information Report Fiji, 27 September 2017, at [3.20]
Failed asylum seeker – membership of a particular social group
128. The applicants claim that they will be questioned by the Fijian authorities about the length of time they have spent in Australia in circumstances where they were holders of [temporary] visas. The applicants claim that if the Fijian authorities find out they have tried to seek asylum in Australia this will put them at further risk.
129. The Tribunal notes that in July 2013 DFAT advised that asylum seekers who were high-profile activist or anti-regime campaigners would draw attention from the regime which could result in intimidation or harassment. DFAT was not aware of cases where ordinary failed asylum seekers or citizens returning from periods abroad were subject to harm by the government.[7]
[7] DFAT Country Information Report No. 13/25 – Fiji: RRT Country Information Request FJI42283 (Sourced from DFAT Advice of 1 July 2013), 1 July 2013, <CISNET: FIJI:CX310444>
130. One example was located of a high profile union official, who had engaged in activities against the interim government overseas, being arrested on arrival at Nadi International Airport after their return to Fiji. In October 2011, the President of the Fiji Trade Union Congress (FTUC), Daniel Urai, was arrested on arrival at Nadi Airport after he had returned on a flight from Australia. While in Australia, Urai had attended a ‘workers’ rights’ meeting in which he had called upon people not to holiday in Fiji or buy clothes made in that country.[8] He was subsequently charged with sedition and released on bail.[9]
[8] ‘Union leader arrested on return to Fiji’, ABC Radio Australia, 31 October 2011, <
[9] ‘Fiji unionist calls sedition charge a joke’, ABC Radio Australia, 2011, <
131. In addition, information was located which refers to a Fijian-born foreign citizen who was married to an opponent of the interim government being refused entry into Fiji and deported. The US Department of State, in its 2010 Country Report on Human Rights Practices for Fiji, stated that in January 2010 ‘Fijian-born foreign citizen Padma Lal, wife of Fijian-born foreign citizen and regime critic Brij Lal, who was deported in November 2009, was refused entry into Fiji and deported.’[10]
[10] US Department of State, Country Reports on Human Rights Practices 2010 – Fiji, 8 April 2011, Section 2.d, <
132. High profile opponents of the interim government have been allowed to re-enter Fiji without incident despite their having engaged in anti-government activities overseas. A report from ABC Radio Australia, published on 1 August 2011, makes reference to the return of FTUC General Secretary Felix Anthony after he had travelled to Australia, New Zealand and Europe to seek support from overseas unions to fight ‘draconian new laws restricting union rights’. During his absence from Fiji, Anthony had reportedly been accused by the interim attorney-general, Aiyaz Sayed-Khaiyum, ‘of disloyalty to the country, and potentially endangering Fiji’s economy and threatening jobs’. However, Anthony stated that ‘everything was quite normal’ on his return to Fiji and that there were ‘no incidents’ following his arrival at Nadi International Airport.[11] Anthony was, however, detained and questioned around the time that Daniel Urai was arrested at Nadi Airport, although he was subsequently released.[12]
[11] ‘Fiji union boss back home safely’, ABC Radio Australia, 1 August 2011, < ‘Fiji unionist calls sedition charge a joke’, ABC Radio Australia, 2011, < The Tribunal also notes that applications for protection visas are confidential. The Tribunal also notes that it’s not uncommon for people travelling to Australia on [other] visas to overstay their visa so they can work or remain with family in Australia.[13]
[13] ‘More than 64,000 people overstaying visas in Australia’, 19 July 2017, <
134. As detailed above, the Tribunal finds that the applicants do not have a profile in Fiji which would bring them to the adverse attention of the authorities. They are not political activists and have not participated in politics or political protests in Fiji. The Tribunal finds that their membership of the FDFM and their association with Mereoni Kirwin is limited and their membership in the FDFM ceased in 2013.
135. Having considered the country information and the applicants’ profiles the Tribunal is not satisfied there is a real chance that the applicants would face persecution in Fiji in the reasonably foreseeable future because they would be returning as failed asylum seekers who have remained in Australia for six years after the [temporary] visa ceased.
Cumulative assessment of claims
136. As stated above the Tribunal notes that the applicants’ claims are overlapping and has considered the claims individually and cumulatively.
137. In particular the Tribunal has had regard to the applicant’s staunch Methodist religious beliefs and his involvement in the Methodist church in Australia. In this regard the Tribunal accepts that the applicant is likely to continue to be involved in the church community and engage in volunteer work with the church in Fiji. The Tribunal has also considered the applicant’s former employment as a prison officer and his interaction with political prisoners as [Occupation 2]. As detailed above the Tribunal was not satisfied that the applicant’s work as a prison officer and steward brought him to the attention of the authorities in Fiji. The Tribunal has also had regard to the applicant’s membership of the FDFM, his involvement with Mereoni Kirwin and his protest activity in Australia. The Tribunal finds that in the absence of a more significant profile, such as being a known political activist the chance of the applicant being targeted is too remote to amount to a real chance. The Tribunal has also considered the time the applicant has spent in Australia. The Tribunal does not accept that the authorities would know the applicant would be returning as a failed asylum seeker.
138. Looking at the claims cumulatively and having regard to the applicant’s profile and the county information the Tribunal is not satisfied that there is a real chance the applicant would face persecution if he returns to Fiji in the foreseeable future because of his religion or his actual or imputed political opinion or because of his membership of a particular social group.
139. The Tribunal has also assessed the second named applicant’s claims cumulatively. In particular the Tribunal has had regard to the second named applicant’s religious beliefs, her involvement in the Methodist church in Australia, her involvement with the FDFM and Mereoni Kirwin, her protest activity in Australia and the time she has spent in Australia after her visa ceased and that she would be returning as a failed asylum seeker.
140. Looking at the claims cumulatively and having regard to the second named applicant’s profile and the county information the Tribunal is not satisfied that there is a real chance the second named applicant would face persecution if she returns to Fiji in the foreseeable future because of her religion or her actual or imputed political opinion or because of her membership of a particular social group.
Complementary protection criteria
141. The Tribunal has also considered the application of s.36(2)(aa) to the applicants’ circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk they will suffer significant harm.
142. The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[14]
[14] MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013)
143. ‘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.
144. In summary the applicants’ central claims are that they left Fiji because of the (a) illegal military government supressing the rights of individuals, particularly staunch Methodists such as themselves and (b) because of the unethical and unfair treatment of the applicant at his workplace. They also claim they will come to the attention of the authorities at the airport because of the length of time they have spent in Australia.

145. The applicant’s claims have expanded since he lodged his original protections. He now claims he is on a government watch list and will be arrested and tortured if he returns to Fiji due to his involvement with political prisoners in Fiji, his association with the FDFM and involvement in anti-Fijian government protest activity in Australia.
146. As detailed above the applicants confirmed at the hearing that they have not been politically active in Fiji. They were not members of any political party in Fiji. They did not take part in the 2006 coup and have not come to the attention of the authorities. In 2010, the applicant retired as a prison officer and is no longer employed by the Fiji DCS.
147. Since 2010 the applicants travelled to Australia on three occasions to visit the second named applicant’s family in [City 3]. They subsequently remained unlawfully in Australia for one and half years before applying for a protection visa. They have now been living in Australia for over six and half years having initially arrived on a [visa] in August 2011. The Tribunal finds that the applicants have remained in Australia for family reasons and not because they fear persecution.
148. The Tribunal finds that the applicants are not high-profile public figures or leaders of organisations who may be seen as a threat to the government of Fiji. Their evidence about the protest activity in Australia was vague and inconsistent. They ceased their involvement with the FDFM in 2013. They had no involvement in the September 2014 Fijian general elections. Although the Tribunal finds their protest activity in 2016 was solely to provide evidence in support of their application the Tribunal has considered this evidence in assessing the complementary protection claims.
149. In assessing the claims the Tribunal has had regard to country information which confirms that there is a more open environment for public expression of political beliefs in Fiji since the 2014 elections[15] and on this basis, given their political profile and religious beliefs, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji there is a real risk they will suffer significant harm.
[15] DFAT Country Information Report Fiji, 14 April 2015, at [3.73]
150. The Tribunal has also taken into account the second named applicant’s claim that she suffered psychological harm resulting from observing the ongoing mistreatment of her husband during his work as a prison officer in Fiji. As detailed above the applicant retired from the DCS in 2010. The second named applicant has provided no psychological reports or details about her psychological health if she was to return to Fiji in the foreseeable future.
151. Looking to the reasonably foreseeable future, the Tribunal does not accept that the applicants will suffer significant harm from authorities in Fiji because of their Methodist religion, their anti-government imputed political opinion or because of the applicant’s past employment as a prison officer or any other reason.
152. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
153. The Tribunal affirms the decision not to grant the applicants protection visas.
Christopher Smolicz
Member

[2018] AATA 1420

4 April 2018

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