1601792 (Refugee)

1601792 (Refugee) [2016] AATA 4564 (17 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601792
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Chantal Bostock
DATE:17 October 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 October 2016 at 2:50pm

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 claims to be a citizen of Fiji, applied for the visa [in] March 2015. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person in respect of whom Australia had protection obligations as set out in s 36(2)(a) or s 36(2)(aa) of the Migration 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.
Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Visa Application
In his application for a protection visa, the applicant claimed that he left Fiji due to the fear of being constantly under the radar of the military. He was constantly threatened by an elite group in the military via text messages and anonymous phone calls. He feared for his life. He claimed that three weeks after the 2006 military coup, he participated in a protest march in [Town 1]. He was taken to an army camp in [Town 1] and beaten to near death. He sustained physical [injuries]. The applicant was vocal against the military and wrote [letters] to the editor of newspapers in Fiji. He was taken in for questioning in the military camp with a view to discourage him from writing to the newspapers. He was charged with two counts of public gathering, following which he was verbally abused and threatened. He was acquitted in 2010. Many people in Fiji have been physically tortured and abused by this elite group of army officers. None of them have been convicted. After he left Fiji, men in civilian clothing came looking for him at his previous address.
The applicant did not attend the Departmental interview. As noted in paragraph 2, the Departmental delegate refused the visa application on the basis that she was not satisfied that the applicant was a person in respect of whom Australia had protection obligations as set out in s 36(2) or s 36(2)(aa) of the Migration Act. She found that “significant changes in the political environment in Fiji” had occurred since the applicant’s claimed experiences, including “an increasing level of freedom of expression particularly in the criticism of the government and political discourse”, which indicated a “lowering of the risk for all citizens who are critical of the government”. Furthermore, she found that the applicant “did not possess a profile that would place him at high risk of negative attention from the military or Government”. The applicant had submitted no evidence of his acquittal following his charges of two counts of public gathering or of writing letters to the editor.
In terms of complementary protection, the delegate found that there was “no evidence to suggest that in the current or foreseeable future contextual environment that the applicant would be of interest to the Fijian Government or military and the lack of evidence that the applicant was or currently remains a high profile public figure in Fiji, does not support the applicant’s claims of facing a real risk of harm upon returning to Fiji”. The applicant submitted a copy of the delegate’s decision record to the Tribunal.
The Review Application
Prior to the hearing, the applicant submitted a lengthy letter of support and many supporting documents, such as media articles and NGO reports from [Person A], [a member] of [Organisation 1] and [Organisation 2], which the Tribunal considered. In brief, [Person A] explained in [his/her] letter that [Organisation 1] was originally set up to [details deleted] while the goal of [Organisation 2] was [details deleted]. In [that] letter, [Person A] claimed that the applicant feared harm upon his return on the grounds of his involvement with [Organisation 2], his religion and race. [Details deleted].[1] Furthermore, [Person A] claimed that members of [Organisation 2] were “people of interest to the thug-regime of Bainimarama” because of their “involvement with self-determination efforts in Fiji”.[2]
The Tribunal hearing
[1] Folio 47 of the Tribunal’s file.
[2] Ibid.
The applicant gave evidence at the hearing. He is a citizen of Fiji and no other country. He is currently living in [a suburb] with his [relative]. He works as [an occupation] in [City 1].
He first entered Australia in December 2011 on a [temporary] visa in order to visit family in Australia. He left in March 2012. He returned once again on a [temporary] visa in September 2014. He extended his [temporary] visa for another three months, in order to attend [an event] in mid-January in [city]. He lodged the protection visa application [in] March 2015.
The applicant comes from [Province 1] on Fiji’s main island. He lived with his parents and [siblings] in [location]. He completed his secondary studies [and] then completed a [a] course at [an educational institution] in [Suva]. He married in 2003 and has [number] children, who are [ages] respectively. His family lives in [a] small town close to Suva. His wife is [an occupation] and his [children] attend school. The family has lived there since 2011. Previously he and his family lived in quarters at his wife’s [workplace] in [town], where his wife worked while he worked at [Employer 1]. From 2003 until 2008, the applicant worked for [Employer 1] and he and his family lived in the [quarters] of [Employer 1] in [Town 1].
From 2010 until 2013, he completed a [course] majoring in [subject]. The applicant explained that he decided to study [this subject] following his conversion to [a Christian denomination] at the end of 2009. He converted because his [personal] problem had a bad effect on his marriage and family life. His wife was supportive of his conversion and converted herself. After his savings ran out in the second year of his course, his wife supported him financially while he was studying. Following his studies, he could not find full-time work. In 2014, with the support of the Church, he commenced a [course] in [another subject]. He came to Australia at the end of 2014. The applicant sends about $[amount] AUD per fortnight to his wife and children. His wife continues to work full time.
He stated that a family friend helped him to complete the protection visa application form, which was correct and contained all the necessary information.
The applicant explained that following the coup in 2006, one Friday night, in about March 2006, the applicant and his friends were drunkenly discussing what happened to the Fiji government and speaking out about Bainimarama. Officers heard them and called the military. He was taken to a military camp in [Town 1] on Saturday morning and released on Monday morning, following their complaints of no food. When detained and while still drunk, they were forced to run and crawl until they passed out. Officers stepped on their backs and heads and beat them with sticks and rods. The applicant was physically injured following his detention. He had [injuries]. Upon release, he went home, showered, got changed and went to the hospital. He was treated with medicines and given a medical certificate. The others were also treated in hospital.
Following his detention, he started writing to [Newspaper 1]. He wrote [number] letters to the editor, which were published. He stated that after the coup everyone was voicing their anger. The authorities randomly picked up people off the street. Undercover officers infiltrated the people’s discussions around the kava bowl and would inform the military. Throughout Fiji, there was no freedom of speech. It was then that the applicant decided to write the letters.
The Tribunal asked the applicant whether he had copies of the published letters. The applicant informed the Tribunal that he had contacted [Newspaper 1], seeking copies. He was told that after seven years, material was archived. He stated that it was hard to liaise with them. He had been trying to get evidence for a couple of months. Asked whether he had drafts of his letters, the applicant stated that the letters were on a computer which he no longer had.
The Tribunal asked the applicant why [Newspaper 1] published his letters, given the political climate, which included censorship, following the coup. He stated that the clamping down on freedom of speech was in relation to social gatherings. Furthermore, the applicant stated that the writings were not very critical and did not provoke the government. He was voicing his opinion in a “kind way”.
He was detained for a second time a few weeks after his first detention, questioned, threatened and advised to stop writing letters to the editor. The officers knew him well as they lived close by. Following this detention, he stopped writing letters as he feared for his family. The applicant stated that he has not been detained again. He was, however, still being followed and the family had to leave the island in fear.
The applicant stated that in 2006, about two weeks after his second and final detention, he was involved in two unofficial gatherings in [Town 1], during which the government was criticised. They were regular people, trying to voice an opinion and were randomly picked up. The police was concerned that something might happen. As a result, he and [others] were charged with two counts of unlawful gathering.
When asked why he was involved with public gatherings when he had decided to stop writing letters to the editor, the applicant stated that he was influenced by friends. He was called back to [Town 1] by the judge and acquitted in 2010. He spent the weekend in prison prior to the hearing on Monday morning as there was no other accommodation, which was not common in Fiji. He could have some documents relating to the charges in Fiji, which he could provide to the Tribunal.
At the final hearing in [Town 1] in 2010, some officers were present and threatened him. The applicant stated that he stopped receiving threats after the hearing in [Town 1]. The Tribunal referred him to his protection visa application form in which he stated he continued to receive threats and he feared for his life. He stated that his wife was friends with a lady who was married to a police officer and she informed him that people were still looking for him even after 2010. The Tribunal asked him why he did not seek protection in 2011 when he was in Australia. He stated that he did not think about it. He thought his faith would get him through and he had to return to his studies. The Tribunal referred the applicant to his protection visa application form, in which he stated that people were looking for him at his previous address. He said that his wife’s friend told him that they were looking for him in [Town 1] in 2006.
In addition, the applicant stated that he had not previously mentioned that he got into a brawl with a military officer outside a [venue] as he had not felt the need. He saw the man, who was in civilian clothes and recognised him from the military camp. He punched him several times and he fell to the ground. When asked whether he was not mindful of the consequences for his family’s safety, he said he was drunk. The applicant left the [venue] and went to a friend’s house. The applicant had difficulty remembering the timing of the fight but stated that it was at the end of 2007. He was fearful after the fight as he felt the man was going to get him. The man did not press charges. The applicant, however, was concerned that if the man saw him, he could do something. The Tribunal asked the applicant why the man would do something now, nearly 10 years later. The applicant stated that he just had that feeling, a gut feeling, that he would do something. He stated that the brawl was connected to the first incident in the camp. The officer did not press charges and did not want the police to be involved because he wanted to personally “get” the applicant.
The applicant stated that he may be on a blacklist as a result of the organisations he joined in Australia. The applicant stated that he was from [Province 1]. He joined the [group], [Organisation 2]. [Details deleted]. Members of the group were picked up by the Fijian military. [Number] people were charged. He was also a member of [Organisation 1], which supported the group held in custody in Fiji and imprisoned. He stated that the 2013 constitution took away rights from the Fijian people, such as land and sea ownership. It was taking away their rights and their identity. [Details deleted].
The applicant met [Person A] “plenty of times” as they live close to one [another]. He joined the groups in mid to late 2015. He paid the membership fee of $[amount] and often attended the meetings, held [in the] evening [in] [suburb]. At the meeting, members received updates on Fiji and Australia. [Person A] also attended the meetings. The groups had over [number] members. At the end of 2015, he attended a march in [one city] and in 2016, a march in [City 1]. During the marches, they voiced their opinions in relation to the rights of the indigenous and held placards. They were making proposals for the Fijian government. When asked what proposals were made, the applicant stated that they proposed what the government could do to minimise the 2013 constitution and made recommendations on where it was heading. [Organisation 1] and [Organisation 2] made no specific proposals as they were informative marches. The applicant stated that [Person A] had been at [an agency] [to] inform [them] of what was happening. The world saw Fiji as a democratic government but it was not the true picture.
In terms of the groups’ goals, the applicant stated that it was justice for the natives of Fiji, protection of their rights and identity. The land in Fiji was owned by natives but the constitution provided that if the land was not being used, the government could take it and sell it. However, it took away the land from the future generation, who needed it to build houses and make businesses. It was a big issue in Fiji. The applicant stated that he did not fear harm upon return to Fiji at an individual level. He was concerned about the race and identity of Fijians back home. He feared for his family, who lived in a communal society and had land and fishing grounds.
The groups were funding the legal defence of those imprisoned in Fiji, who had been charged with the illegal attempt to form government. A number of hearings had been held in their case but they were still imprisoned. He did not know whether a trial date had been set down. The groups had raised $[amount] in their defence. [The] groups were viewed as a threat. While he hoped that the government would not know about his activities in Australia, the Fijian government had knowledge of people in Australia.
The Tribunal noted that [Person A] not only claimed that the applicant feared persecution by reason of his membership of a particular social group, namely the two organisations in Australia but also on account of his religion and race. In relation to race, the applicant stated that the government was taking away his right to religion. In Parliament, one was not allowed to speak Jesus’ name. The Tribunal noted that the applicant had converted to [a Christian denomination], had undertaken a Bachelor degree majoring in [subject] and had looked for work under the umbrella of the church. He responded by saying that the rights were not being taken away on a personal level. In terms of race, he again referred to land and fishing rights being removed. His own land, owned jointly with his clan, had not yet been taken away.

After an adjournment, the Tribunal informed the applicant that it had concerns relating to the credibility of certain claims, in particular those relating to the letters published in [Newspaper 1] and the charges of unlawful gathering. It provided him with an additional two weeks to submit further evidence. It also raised with the applicant its concerns relating to the credibility of his claim relating to the brawl. In addition, the Tribunal noted that, in any event, the applicant had committed a criminal offence. It put to the applicant information contained in DFAT’s report, which stated that “for low-profile and non-political matters, the judicial system [was] generally capable of providing effective state protection”.[3] The applicant agreed that it was a criminal matter.
[3] [Details deleted].
The Tribunal put to him that Fiji was considered “generally stable and secure”.[4] The applicant stated the Fijian government gave that information to the Australian government but that circumstances contradicted that statement. People were still being picked up without being found guilty, beaten and sent to the military camp. The government was trying its best to normalise and improve the situation but the effect of the coup was ongoing. The rule of law was ignored. There was a long way to go.
[4] Ibid at [2.48].
The Tribunal put to the applicant that according to the DFAT report, Fiji was “religiously diverse” and that “the 2013 Constitution establishe[d] Fiji as a secular state and guarantee[d] freedom of religion”.[5] Furthermore;
The Constitution [was] non-discriminatory on the grounds of religion and provide[d] specifically for protection from religious discrimination. Religious freedom [was] observed in practice.[6]
[5] Ibid at [3.35].
[6] Ibid at [3.35].
The applicant stated that the mentality of the owners of the land was Christianity and therefore they expected the state religion to be Christianity.
It put to the applicant that “overall DFAT assesses there is no official discrimination against Indigenous Fijians”.[7] The applicant referred once again to the issue of land rights and fishing grounds being taken away.
[7] Ibid at [3.30].
The Tribunal put to the applicant that “in general, DFAT assesse[d] that those at risk [were] high profile public figures, including the leaders of organisations which [could] be seen to challenge the government’s authority or undermine its legitimacy”,[8] to which he replied that he had no comment.
[8] Ibid at [3.74].
The Tribunal gave the applicant the opportunity to provide further information in support of his application. He explained that he feared returning to Fiji because of the Church’s policy in relation to failed asylum seekers. He claimed that the [Church] knew he had applied for protection in Australia and would not give him a job in Fiji essentially on character grounds. He had no evidence that the Church had such a policy but knew of examples of Church pastors who had the same problem. When asked why he could not obtain alternative employment, the applicant stated that he only wanted to work for the Church. The Tribunal noted that his wife was working and could support him financially.
Although given time to provide additional material after the hearing, the applicant did not provide further information to the Tribunal.
Country Information
As required by the abovementioned Ministerial Direction, the Tribunal had regard to DFAT’s country report on Fiji, published in 2015. While there is no doubt that Fiji has experienced recent political turmoil, the report indicates that it is “now generally stable and secure”:[9] Furthermore, the report provides that:
The 2006 coup was non-violent and did not affect the country’s overall security. Elections in 2014 were calm and free of violence…[10] Bainimarama resigned as Commander of the RFMF in 2014. His new political party, FijiFirst, won elections in September 2014 and holds a substantial majority in Parliament. Bainimarama is now Fiji’s Prime Minister.[11]
[9] Ibid at [2.48].
[10] Ibid.
[11] Ibid at [2.10].
Prior to the holding of the 2014 elections, “the interim Bainimarama Fijian Government drafted its own Constitution which was passed in September 2013.”[12] The Constitution “contains a comprehensive Bill of Rights”, which “specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief.”[13] The report acknowledges, however, that “key rights” may be “restricted by law and during the state of emergency.”[14] The report provides further explanation as follows:
In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example, to discuss the outcomes of the 2014 election. At times such gatherings include robust political criticism of FijiFirst and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.
However, some uncertainty remains about the permissible limits on public commentary. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy.[15]
[12] Ibid at [2.8].
[13] Ibid at [2.23].
[14] Ibid at [2.24].
[15] Ibid at [3.70 - 3.74].
The Tribunal also considered recent responses to recent country information requests relating to [Organisation 1] and the [Organisation 2]. [Details deleted].[16] The report acknowledged that “the Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji”.[17] Furthermore, “in the case a person returning to Fiji was accused of or suspected to have been involved in such activities, it is possible that they would be arrested and prosecuted for such activities”.[18]
[16] Ibid.
[17] [Information deleted].
[18] Ibid.
The Tribunal also considered other independent reports regarding the situation in Fiji, including the report from Freedom House, published in 2015.
FINDINGS AND REASONS
The Tribunal sighted the applicant’s passport at the hearing. Based on the material before it including his passport and his oral evidence at the hearing, the Tribunal is satisfied that the applicant is a citizen of Fiji. For the purposes of s 36(2)(aa), the Tribunal accepts that Fiji is the receiving country. The Tribunal further finds that the applicant is outside his country of origin. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality.
Does the applicant have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion?
As stated earlier, the Tribunal must consider whether the applicant has a well-founded fear of persecution for one of the stipulated reasons. If the Tribunal finds that the applicant does not have a well-founded fear of persecution for one or more reasons set out in the law, the Tribunal must then consider whether he meets the Complementary Protection criteria, which are set out earlier in the decision.
The Tribunal considered all the material before it, including the applicant’s oral and written evidence and country information. The applicant made various claims relating to his fear of returning to Fiji, each of which is considered by the Tribunal. When assessing the credibility of the applicant’s claims, the Tribunal had regard to the Tribunal’s Guidelines on the Assessment of Credibility, dated July 2015.
Claim relating to criticism of government following the 2006 coup
The applicant claimed that while drunk, he and others criticised the government following the 2006 coup and were consequently detained and maltreated during the course of a weekend. He, along with others, was released on the Monday morning following their complaints of lack of food, whereupon he sought medical treatment in hospital.
The Tribunal accepts the applicant’s account of these events. The Tribunal notes, however, that this event took place approximately 10 years ago. Given the change in the civil and political environment in Fiji, which is now considered “generally stable and secure”, it finds that the applicant does not have a well-founded fear of persecution on account of this event.
Claim relating to the publication of the applicant’s letters in [Newspaper 1]
The applicant claimed that he wrote letters to the editor of [Newspaper 1] following his abovementioned detention. He claimed that they were published and as a result, he was detained on a second and final occasion, where he was questioned, threatened and advised to stop writing the letters. Thereafter, he and his family fled the island in fear.
The Tribunal does not accept this claim. There is no evidence of the applicant’s draft letters or publication of these letters in [Newspaper 1]. Given that [Newspaper 1] is a [newspaper] with presumably appropriate archiving mechanisms, the Tribunal would have expected the applicant to be able to access copies of his letters, had they been published. The Tribunal found the applicant’s evidence in relation to his attempts at retrieving copies of these published letters unconvincing. In addition, the Tribunal found the applicant’s account of these events implausible. For example, it is not clear why [Newspaper 1] would publish his letters, given the applicant’s evidence that there was no freedom of speech following the 2006 coup. The applicant’s evidence in relation to the content of the letters was also vague and unconvincing. It is again not clear why he would be detained, questioned and threatened in relation to letters, which were not “very critical”, “did not provoke the government” and were written “in a kind way”.
Claim relating to his unofficial gatherings
The applicant claimed that in 2006, he was involved in two unlawful gatherings, during which the government was criticised and in relation to which he was acquitted in 2010. The Tribunal does not accept this claim as there was no documentary evidence relating to his charges or acquittal. The Tribunal would expect the applicant to be able to provide a document, such as a summons to appear in court or evidence of the acquittal such as a court judgment, in support of these claims, particularly given the serious nature of the charges. The applicant provided no reasonable explanation for the lack of official, documentary evidence relating to these matters.
Claim of being “under the radar of the military”
In his protection visa application form, the applicant claimed that he was under the radar of the military and that he continued to receive threats from the military, a claim which the Tribunal does not accept for the following reasons. The applicant’s evidence in relation to this claim before the Tribunal was vague, unclear and inconsistent with information he had previously provided. For example, during the hearing, he claimed that the threats ceased following his acquittal in 2010 while in his protection visa application form, he claimed that he was “constantly threatened” via text messages and anonymous telephone calls and that the military came looking for him at his previous address, after he had left Fiji. Furthermore, if the applicant had continuously been threatened by the military, the Tribunal would have expected him to seek protection in Australia during his visit in 2011 rather than returning to Fiji several months later. The Tribunal discussed this issue with the applicant at the hearing, who stated, amongst other things, that he returned to Fiji to resume his studies, an explanation which does not appear to be consistent with a stated fear of harm upon return to Fiji.
Claim relating to the brawl outside the [venue]
The applicant claimed that he feared harm upon return to Fiji as a result of an altercation outside a [venue] with a military officer in 2007, who he recognised from the military camp in [Town 1]. He punched the officer several times in the head, causing him to fall to the ground. He claimed that he punched the officer because he was drunk. He was not prosecuted because the officer wanted to personally “get him”.
The Tribunal is prepared to give the applicant the benefit of the doubt and to accept that this event occurred. It finds, however, that almost 10 years has elapsed since the event and there is no evidence that the officer has pursued the applicant and will pursue him upon his return to Fiji. In any event, lawful prosecution of the applicant for an assault would be legitimate and the country information provides that the likelihood of prisoners receiving violent treatment has “diminished”.[19] The Tribunal is not satisfied that the applicant has a well-founded fear of harm upon his return as a result of this claimed brawl.
Claim arising out of his activities in Australia
[19] DFAT Country Report Fiji, 14 April 2015 at [4.8 – 4.12]. While acknowledging “credible allegations of violent treatment of prisoners by the military”, the authors of the report note that “the frequency of such incidents has diminished in recent years” and that “overall, DFAT assesses that the likelihood of any individual being subject to cruel, inhuman or degrading treatment or punishment is low”.
The applicant claimed that he is on a black list in Fiji as a result of his activities in [Organisation 2] and [Organisation 1] in Australia. The Tribunal found that while the applicant had knowledge of [Organisation 2] and [Organisation 1], it lacked depth. For example, he was unable to state the trial date of the members of the group or the group’s [proposals]. Nevertheless, the Tribunal is again prepared to give the applicant the benefit of the doubt and to accept that he is involved in [Organisation 2] and [Organisation 1] in Australia. It is prepared to accept that he attends meetings and attended two marches in Australia.
However, the Tribunal is not prepared to accept that the applicant is a high profile public figure. There is no evidence that the Fijian government is aware of his activities in Australia. While the applicant gave evidence that the Fijian government had “knowledge of activities in Australia”, he was unable to provide any further detail.
Furthermore, even if the Fijian government were aware of the applicant’s activities in Australia, there is no evidence that it would take action against the applicant upon his return to Fiji. The country information noted earlier indicated that the Fijian Constitution guaranteed freedom of speech, expression and publication, assembly and association and that there is more open public expression, including public gatherings, during which the government is criticised. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on account of his involvement with [Organisation 1] and [Organisation 2] in Australia.
Claim as a result of his race
In [the] letter of support, [Person A] stated that the applicant feared harm upon return on account of being an indigenous Fijian. During the hearing, the applicant claimed that he was concerned about land and sea rights. He claimed that he did not fear harm upon return to Fiji at an individual level but was concerned about the race and identity of Fijians back home. He feared for his family, who lived in a communal society and had land and fishing grounds but acknowledged during the hearing that their land had not been taken away.
As noted earlier, the country information indicates that the Fijian Constitution outlaws discrimination on the basis of race and official discrimination has ended. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on account of his race.
Claim as result of his religion
[Person A] also claimed that the applicant feared harm on account of his religion. When the Tribunal discussed this claim with the applicant at the hearing, he acknowledged that his religious rights were not being taken away on a personal level. However, he stated that the government was taking away his right to a religion and one was not allowed to utter Jesus’ name in Parliament. The mentality of the owners of the land was Christianity and therefore they expected the state religion to be Christianity.
As noted above, the country information indicates that Fiji is a secular and religiously diverse state, which bans religious discrimination and where religious freedom is observed in practice. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on account of his religion.
Claim relating to the church’s policy on failed asylum seekers
The applicant claimed that he feared returning to Fiji because of the Church’s policy in relation to failed asylum seekers. He claimed that the [Church] knew he had applied for protection in Australia and would not give him a job in Fiji on character grounds.
The Tribunal is not prepared to accept this claim as there is no evidence that such a policy exists. In any event, even if such a policy existed or discrimination occurred in practice, the Tribunal finds that the applicant could be supported by his wife, a qualified, working [occupation], who has supported him in the past.
Claim relating to the general civil and political situation in Fiji
The applicant made general claims relating to the civil and political conditions in Fiji. He stated that there was no freedom of speech, people continued to be “picked up without being found guilty, beaten and sent to the military camp” and the rule of law was ignored. In his words, “there was a long way to go”.
The Tribunal has taken into account the country information relating to the improved general civil and political conditions in Fiji. It has also considered country information, which provides that “the likelihood of any individual being subject to cruel, inhuman or degrading treatment or punishment is low”, although “someone who is seen to have embarrassed the government or the security services would have a higher risk profile”.[20]
[20] Ibid at [4.12].
For the reasons provided earlier, the Tribunal does not accept that the applicant is a high profile public figure. It is not satisfied that the applicant has a well-founded fear of persecution as a result of the general civil and political situation in Fiji.
Is there a real risk that the applicant will suffer significant harm?
The Tribunal also considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Migration Act.
The Tribunal accepted that the applicant was detained following the 2006 coup and was prepared to accept that he was involved in an altercation with a military officer in 2007. However, given the changed country conditions and the passage of time, the Tribunal does not have 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 the applicant will suffer significant harm.
While the Tribunal was also prepared to accept that the applicant was involved in [Organisation 1] and [Organisation 2] in Australia, it was not prepared to accept that he was a high profile public figure for the reasons provided earlier. In light of the generally improved civil and political conditions, in which there is greater freedom of speech, the Tribunal does not have 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 the applicant will suffer significant harm. The Tribunal did not accept the applicant’s other claims.

The Tribunal has considered the applicant’s circumstances individually and cumulatively. 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).
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.
Chantal Bostock
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.
…

[2016] AATA 4564

17 October 2016

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