1601794 (Refugee)

[2017] AATA 1954

1601794 (Refugee) [2017] AATA 1954 (20 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601794

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:20 September 2017

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction in respect of the second- and third-named applicants.

Statement made on 20 September 2017 at 4:06pm

CATCHWORDS
Protection visa – Fiji – Political opinion – Social Democratic Liberal Party (SODELPA) – Former Prime Minister Qarase – Military detention – Physical and verbal abuse by armed forces - Pacific Indigenous Samaritan Association Inc (PISAI)

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 91R(3), 338, 347, 411, 412, 424AA, 499
Migration Regulations 1994 Schedule 2, r 4.02

Administrative Appeals Tribunal Act 1975, s 29

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The first-named applicant (‘the applicant’) is a man in his [age range] from Fiji. The second- and third-named applicants are his young sons, who are currently in [Country 1].  

2. The applicant arrived in Australia [in] September 2015, as the holder of a [temporary] Visa. He applied for a Protection (Class XA) visa [in] October 2015, and included his sons in his application. [In] January 2016, the delegate refused the application pursuant to s.65 of the Act in respect of the first-named applicant alone. The decision did not address the second- and third-named applicants.

3. This is an application for review of that decision. The applicant included his sons’ names in the review application.

4. The applicant attended a Tribunal hearing on 7 September 2017.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant claims to fear persecution or significant as a supporter of Fiji’s main opposition party. The Tribunal considers his claims and evidence to be vague, mainly unsubstantiated and in part unreliable. It accepts that he prefers the ethnic Fijian, Christian-based opposition, but that he has no significant political commitment or profile, in Fiji or more recently in Australia. It finds that the Fijian authorities will not consider him a person of interest, and he faces no real chance (real risk) of persecution or significant harm. 

6. The Tribunal finds that it has no jurisdiction in respect of the second- and third-named review applicants.

   Criteria for a protection visa

7. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

8. The applicant claims to fear that the Fijian authorities, in particularly the military, will prevent him from voicing his political opinion opposed to the current government of Prime Minister Bainimarama. Before the Tribunal, he also claimed that he has associated with the Fijian separatist Ms Mereoni Kirwin, and to have engaged in various political activities in Australia. The Fijian authorities have refused her entry into Fiji, and threatened to punish her and any supporters if they enter the country.

   Background

9. The applicant is [an age] year old man from Suva, Fiji. He gives his ethnicity as Fijian, his languages as Fijian and English, and his religion as Assemblies of God.

10. The applicant stated in his application that he had lived at one address in [Town 1 in] Suva. He lives in his own home there. His mother [and specified relatives] live in a different house.  

11. At the hearing, he said that he had also spent time in other parts of Fiji, such as [other specified towns]. He said that he typically visited these places for a few months, visiting friends and helping them with farm work, or undertaking church work. In response the Tribunal’s questions, the applicant said that he did not mention these visits in his protection visa application because he had been nervous.

12. The applicant studied in Suva up to Year [number], which he completed in [year]. He then worked [in an occupation] for several years, and later as a farmer. From March 2014 to September 2015, he worked as a volunteer missionary. The applicant intimated at the hearing that he had worked for the Assemblies of God for a longer period, in a private capacity. He gave as examples that he acted as a chaplain for [specified groups], and he had helped feed homeless children.

13. The applicant stated on his application form that he has never married or been in a de facto relationship. At the hearing, he said that the mother of his two sons left them shortly after the birth of the second son; she is now in a separate relationship. The primary application includes the two sons, aged [ages] at the time of this decision. They currently live in [Country 1].

14. The applicant holds a Fijian passport issued in [2009]. He attached a photocopy of the biodata page to his protection visa application form. He told the Tribunal that he had recently lost or misplaced it when moving home [between suburbs]. He has not reported it to the police or sought a replacement passport from the Fiji authorities. He explained that, after a period of unemployment, he recently started a position that involved night work. He had therefore not had an opportunity to follow up on the missing passport.

15. The applicant travelled to [Country 1] on several occasions, each time for several months. The dates of his travel (as set out in the protection visa application form, and confirmed at the hearing) were: [between] March [and] June 2014; [February] [and] April 2015; and [May] to [September] 2015. The applicant said that he first went to [Country 1] to accompany a [group], but during that visit he undertook missionary work in remote villages, at the request of [an official] of the Assemblies of God in [Country 1]. This resulted in subsequent visits. On his last visit, he decided not to return to Fiji, because of his concerns about developments there, and his own past experiences. His two sons live with the [official], and go to school in [Country 1]. The applicant said that his hope was that they could join him in Australia.

16. The applicant said that he has not undertaken any other overseas travel apart from his trips to [Country 1] and Australia. He told the Tribunal that he travelled to Australia from [Country 1], as part of a missionary group.

    Evidence

17. The evidence before the Tribunal includes the following relevant material: -

    §  The protection visa application form, which includes the applicant’s handwritten reasons for seeking protection. The applicant confirmed at the Tribunal hearing that he prepared his claims personally.

    §  The applicant attached to the application form a photocopy of his Fijian passport (biodata page) and his birth certificate.

    §  The applicant attended an onshore protection interview (‘Department interview’) [in] November 2015, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of [January] 2016.

18. The applicant appeared before the Tribunal on 7 September 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant is not represented in this matter.

19. The applicant did not present any witnesses or documents at the hearing, although he had foreshadowed in the protection visa application form that he would provide documents later. He told the Tribunal that he would like to submit further evidence. Specifically: -

    §  During the course of the discussion, he said that Ms Mereoni Kirwin was travelling from [place] to Sydney during the day, and he would like the Tribunal to take oral evidence from her. The Tribunal noted that he had not nominated any witnesses, and that it did not propose to contact Ms Kirwin outside the hearing itself. However, it would consider any statement he wished to provide from her.

    §  The applicant also said that he had recently requested a statement from former Prime Minister Mr Qarase and others, and he believed that this was being prepared.

20. The Tribunal received a post-hearing submission on 15 September 2017. It contained two letters of support (but no further comments/response to the information given pursuant to s.424AA, or other material):

    §  A letter of support dated [in] September, in the name of Ms Oni Kirwin[1], Executive President of ‘Pacific Indigenous Samaritan Assoc. Inc;’ (PISAI) and ‘Advocate for Indigenous People, Pacific Forum Member States’ (signed by another person on her behalf).

    §  A letter dated [in] September 2017, signed by [Mr A], [a named official] of the Social Democratic Liberal Party.

    [1] This person is also known as Mereoni Kirwin, and her family name sometimes appears with minor spelling variations.

    Receiving country

21. The applicant claims that he is a Fiji national. He speaks Fijian, provided with his application form a partial copy of his Fiji passport a copy of his Fiji birth certificate with his application; and he is familiar with that country. In the absence of any suggestion to the contrary, the Tribunal finds that he is a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

22. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal notes the applicant’s evidence that he had been nervous at the Department interview, as he had never participated in such a process before. It also takes into account that he did not appear to be a confident speaker during the hearing itself.

23. Overall, the Tribunal found the applicant’s evidence to be vague and unsubstantiated. It accepts that this might reflect in part that he is not familiar with the migration process, and/or that he might not be a strong presenter. It formed the view that the applicant has some general interest in Fiji’s politics, but that he inflated and misrepresented the nature of his activities, in both Fiji and in Australia (both in relation to the Fijian opposition groups and the activities of the separatist activist) Mereoni Kirwin.

    Political opinion and activities

24. The applicant claims to support the Fijian opposition, namely the party of former Prime Minister Qarase, formerly known as the SDL (Soqosoqo Duavata ni Lewenivanua), and currently regrouped as SODELPA. In his protection visa application, he described his political activities in the following terms:

    [I was involved in] the youth movement in the SODELPA Party during the elections.

    I was also involved/member of [named] gang writing rude graffiti words against Bainimarama and his party/regime.

    I was also a volunteer at our local polling station and witnessed vote rigging done by officials. I voiced my concerns publicly.

    I also publicly announc[ed] in [Country 1] during my missionary work that the Bainimarama government is unconstitutional and  extreme corrupt values. 

25. At the Tribunal hearing, the applicant clarified that he had been politically active in the lead-up to the May 2006 elections. Country information indicates that Qarase’s SDL Party narrowly won the May 2006 elections, and he began his second term. In December 2006, military leader Commodore Josaia Voreqe (Frank) Bainimarama seized power in a military coup, dismissing Qarase and establishing himself as the country’s sole leader.

26. The applicant said that, around this period, he joined [a local youth] Organisation ([deleted] whose leader was [named]). He was involved in this group for only a short period. In the lead-up to the elections, the group held a protest march, used foul language against the government, and spray-painted messages against corruption. The applicant mentioned that he supported the party in other ways, too, like making donations if asked.

27. The applicant claimed that the Fiji Army once took him and his political friends from the youth group to a military camp, and mistreated them (see below). His experience deeply affected him, although he did not discuss this with anyone. He lost contact with his local political friends. The applicant indicated that, from this time, he had been biding his time to leave Fiji and seek a better future for his children.

28. As a consequence, from around 2006, the applicant had minimal engagement in Fijian politics. He told the Tribunal that after his experience in the military camp, he did not want to join any political movement. He was also concerned about his sons’ futures. His only political activities had been to attend some village meetings, on occasions when Mr Qarase had appeared in person., and to make some donations from time to time. During the 2014 elections, he said that he voted for SODELPA, but he was in [a different town] at the time and did not engage in any other activities.

29. Asked about his political activities in [Country 1], during his visits there in 2014 and 2015, the applicant said that he met some Fijian people there who shared his views. He and they were emboldened to speak their minds, and encourage each other.    

    Mistreatment in 2006

30. The applicant claims that around 2006, the army took him to the military camp, where he was physically beaten and verbally abused. At hearing, he said that the mistreatment included being forced to do physical exercises, and then being kicked in the torso and punched in the face. The applicant said that he did not talk about this incident with others.

31. The Tribunal noted that there had been numerous reports of the army and police seizing political activists around 2005 and 2006, and mistreating them in the army barracks. However, some ten years had now passed. Country information indicated that many people who had witnessed or suffered under past abuses were now able to support opposition parties, such as SODELPA, the SDL’s successor. The applicant replied briefly that his experiences in the military camp had affected him personally. The Tribunal understands him to have been suggesting that the psychological impact of these experiences was to inhibit him from engaging in any political activities, such as expressing his views or joining like-minded people.

    Activities in Australia

32. The applicant told the Tribunal that a few months after coming to Australia, he heard about a group called PISAI (the Pacific Indigenous Samaritan Association Inc) which is led by Ms Mereoni Kirwin. The initial attraction was the applicant’s commitment to missionary work. The applicant said that she is also the leader of the Ra Native Group, and she is banned from returning to Fiji. The applicant said that, since arriving in Australia, he has focused on his work with Ms Kirwin’s group, and has not been following developments involving SODELPA in Fiji.

33. The applicant said that his activities with the group include attending monthly meetings in [Suburb 1], on Thursdays, although he has not gone recently due to his work commitments. He has also attended other political activities, such as a protest march in [City 1] – he said that these took place during PM Bainimarama’s visit to Australia [October 2016], which coincided with Fiji Day. The applicant doubted that there would be any evidence (such as photographs) to show his involvement in these activities, although he later thought that he might be included in some of the photographs that Ms Kirwin had posted to her social media pages. The applicant said that he has a [social media] page, but he does not put any political content on his page.

34. The applicant presented a letter from Ms Oni Kirwin, who confirmed that the applicant became ‘a registered member of [her] charity organisation [PISAI]’ in February 2016. She gives background information about PISAI. She stated that the applicant has remained a supporter of the organisation; that he has made ‘financial contribution[s]’ that go towards a legal defence fund; and that he ‘openly associate[s] himself’ with her.

35. According to the applicant’s evidence, the letter from Ms Kirwin and general country information, PISAI  is a charity that supports indigenous communities, particularly Aboriginal people in northern Queensland. Ms Kirwin presents herself as the Director at Pacific Indigenous Samarian Association Inc’, based in Townsville.[2] PISAI is described on its Facebook page as ‘[a] community organisation with a mission to share the Gospel and the principles of love, faith and hope to empower those in need.’[3] Among the many press reports about Ms Kirwin’s activities in Australia, a report from the Fiji Sun, dated 27 August 2015, stated that she  was ‘alleged to be involved in attempts to form a so-called Christian State in Ra and Nadroga and supporting some now in custody.’[4] The report also stated that:

    Ms Kiriwin [sic] now resides in an unknown address in Sydney, Australia. She has been posting articles in her facebook [sic] about the rebel group and the support of the Pacific Indigenous Samaritan Association which she claims to have formed it.

    [2] LinkedIn, Oni Kirwin

    [3] Pacific Indigenous Samaritan Association Inc. n.d., About Pacific Indigenous Samaritan Association Inc., Facebook

    [4] Bolatiki, M 2015, ‘No Support For Kirwin, Says Chief Of Matuku’, Fiji Sun, 27 August

36. Reports confirm the applicant’s claim that the Fijian Government formally banned Ms Kirwin from travelling to Fiji. For instance, A Fiji Sun report, dated 29 August 2015[5], stated that Ms Kirwin had ‘been banned from entering Fiji’ and quotes the Director Fiji Immigration Nemani Vuniwaqa: “She is on our blacklist because of her involvement with the late Ratu Osea Gavidi in the so-called Christian state in Nadroga and Ra as their legal adviser,”

    [5] Koroi, N, Vakasukawaqa, A and Naidu, S 2015, ‘Kirwin Banned’, Fiji Sun, 29 August, see: ; CXBD6A0DE17588

    Tribunal’s assessment and findings

37. The Tribunal considers that the applicant’s written claims, as presented in his protection visa application, were exaggerated – for instance, his statement that in Fiji his ‘life was in danger, miserable, shameful, extreme suffering’.

38. The applicant has made brief, vague claims about his political interests and his experiences at the hands of the Fiji authorities. He has produced no contemporaneous, independent evidence, such as photographs, correspondence or other materials relating to his activities in Fiji. Even by his own account, the applicant had some association with a political youth group in his local area up to about 2006, and yet had no contact with these people or knowledge of their activities after that. The Tribunal notes that the applicant produced a letter from [Mr A], [an official] of SODELPA dated [in] September 2017. This letter provides background on the applicant’s personal and family circumstances, his travel history, and a range of country information about human rights in Fiji. The author briefly refers to the applicant as a ‘supporter of the [DL] in [Town 1]’ and ‘a known staunch supporter of the SDL’. The text is very similar to the applicant’s written claims, and contains details about the applicant that he appears to have provided to the author. Overall, the Tribunal considers that this letter was prepared for the purpose of assisting the applicant with this application, rather than based on the author’s personal knowledge. It accepts that [Mr A] is sympathetic to the applicant, but it places very little weight on the letter as independent corroboration of either the applicant’s past political activities; the alleged detention and assault in 2006; or the applicant’s reasons for leaving Fiji.  

1. The Tribunal accepts that the applicant prefers the SDL/SODELPA, in light of his consistent evidence about his political preferences, and taking also into account that ethnic Fijians and Christian groups form the mainstay for this political group. The Tribunal considers it possible that the applicant associated with young politically active men in his local area around 2005/2006, and that he may have been caught up in the crackdown on dissidents.

2. The applicant claims to have been detained and abused by the military in around 2006. The Tribunal acknowledges that there were reported instances of detention and abuses in military camps during that period, and accepts that the applicant would almost certainly be unable to substantiate this if this had happened to him. [Mr A] mentions this in his letter, although for the reasons given above, the Tribunal places little weight on this letter as independent corroboration of the applicant’s claims. [Mr A] goes on to state that ‘His relatives in [Location 1] also retaliated and had burnt the [landmark] in [Town 2]’. The applicant mentioned at the hearing that he had stayed with friends, church fellows and/or relatives in different parts of Fiji, including [Town 2], which is the largest town [in Location 1]. He did not mention any conflict involving relatives. The Tribunal has found reference to an arson attack on the [landmark] in [Town 2]during political riots in 2000, but based on the applicant’s written and oral evidence, it detects no link with his personal circumstances or his protection claims.

3. The applicant claims that his detention and mistreatment in the military camp had a lasting effect on him, and explains why – together with the general lack of political freedom in Fiji – he did not engage in politics over the past ten years or so. [Mr A] did not allude to this directly that the applicant ‘feared that if he spoke out about what the current government stood for he would be severely punished and even to the extent of being killed […]. This fear has remained in him today.’ There is no evidence to indicate that the applicant suffers any psychological or other effects from any incident in 2006. Nor is there any suggestion that the applicant’s experiences in 2005 or 2006 affected other aspects of his life. And, as the Tribunal noted at hearing, the Fijian opposition engages in a wide range of activities that would have afforded him a chance to at least have some political contacts or engagement.

4. In light of the above assessment, the Tribunal makes the following findings of fact:

   §  The applicant supports SODELPA and its predecessor party, the SDL, including as an ethnic Fijian and a Christian. During the political unrest in 2006, the applicant joined some other young men in protesting and putting up graffiti opposing the government. The Tribunal is not satisfied that he has engaged in any other political activities.

   §  In 2006, the applicant and his friends were caught disturbing the peace. He was taken to the military barracks and subject to some physical abuse. The Tribunal accepts that he has lost contact with these young men, but it finds this is because their activities – protesting, swearing and painting graffiti – are no longer of interest to the applicant. The Tribunal does not accept that this resulted in any last physical or psychological damage.

   §  The Tribunal does not accept that the applicant has any political interests or engagement beyond his general support for SODELPA, which may involve occasional donations and voting for that party during elections.  Nor does it accept that the applicant has deliberately avoided political activities over the past decade, due to the effect of his past encounters with the Fiji authorities and/or out of any fear of what harm might come his way. Instead, the Tribunal finds that the applicant has placed priority on bringing up his boys as a single father, on doing paid work, and on continuing his volunteer work as a missionary.

   §  The applicant suggested that he remains politically active. In his written claims, he wrote that even in [Country 1], he publicly announced that the Bainimarama Government is ‘unconstitutional and extreme corrupt values’. Asked about this at the hearing, the applicant said that he felt emboldened to discuss politics with some Fijians there, and they shared the same values. The Tribunal finds that the applicant has exaggerated the extent of his political engagement, and does not accept that he has any interest in public exchanges, advocacy or other work that may give him a political profile.

5. As noted above, the applicant – and [Mr A] in his letter – stated that he left Fiji because he opposes the government, and he cannot speak out freely, for fear of being punished. However, for the reasons stated above, the Tribunal does not accept that the applicant had any greater political interests or involvement in Fiji, beyond general support for SODELPA.

6. The applicant noted that his two sons are in [Country 1], currently in the care of the [official] of the Assemblies of God in [Country 1], and attended school. He stated that he does not want them to return to Fiji, due to the ‘mishaps’ and ‘what is happening there’. The Tribunal understood the applicant to be referring to his own experiences (having been detained and mistreated in the military camp, and then reluctant to engage in political activism), and the general political and economic conditions.

7. The applicant implied that the Tribunal should give some weight to his decision to leave his sons in [Country 1], as evidence of his fears in relation to Fiji. The Tribunal notes, however, that the applicant is a single father, and that he travelled to [Country 1] on several occasions in relation to his missionary. There is no evidence of him having previously tried to seek protection previously, or explore other options. It appears that, on his last trip to [Country 1], he took the opportunity to join an Assembly of God missionary team visiting Australia. The Tribunal accepts that it must be difficult for the applicant to be separated from his young sons, although church members are now looking after them in [Country 1]. In the Tribunal’s view, it is understandable that the applicant has sought to obtain permanent residency in Australia, and that he is keen for his sons to join him here. However, it places little weight on this as evidence that the applicant genuinely fears serious harm amounting to persecution, or significant harm, if he goes back to Fiji.

8. The Tribunal finds that the applicant went to [Country 1] – on the third of his missionary visits there – a joined a group travelling to Australia. It does not accept that he left Fiji fearing for his safety, or frustrated that he cannot express his political opinion there without risking serious harm or significant harm.

9. The Tribunal accepts on the limited available evidence that the applicant has attended Fijian functions in Australia, such as some PISAI gatherings in [Suburb 1] and, perhaps, a protest in [City 1]. The Tribunal noted the applicant’s statement to the Department delegate at interview that he had not been politically active in Australia, and put this to him pursuant to the procedure in s.424AA of the Act. The applicant opted to comment/respond orally, on the spot, and said that he was uncertain what to do in relation to his protection visa application. The Tribunal notes, however, that Ms Kirwin’s recent letter records that he joined PISAI as a member in February 2016. If correct, this means that the applicant had not, at the time of the delegate’s decision, become associated with PISAI, but that he did only later.

10. In relation to the nature and duration of the applicant’s contacts with PISAI, the Tribunal notes his own evidence that he recently stopped attending the meetings in [Suburb 1] due to work commitments. Despite Ms Kirwin’s mention that he is a ‘strong supporter’ of PISAI and ‘openly associat[es] with her, the applicant was vague about his participation and offered no independent corroboration. These factors – together with the applicant’s low level of political interest in Fiji, his location in Sydney and the lack of any demonstrated interest in issues like the establishment of Christian States in certain parts of Fiji – lead the Tribunal to conclude that his association with PISAI and any Fijian protest activities has been infrequent and low-key.

11. The Tribunal has considered whether the applicant engaged in his conduct in Australia, such as presence at one or more political gatherings, and at PISAI meetings in [Suburb 1], for the sole purpose of strengthening his claims to be a refugee, such as the Tribunal is required to disregard it when assessing whether he has a well-founded fear of persecution for one or more of the reasons in s.5J(1). Strikingly, the applicant placed emphasis on his political activities in Australia and, in particular, his association with Ms Kirwin, as a reason why he should be granted refugee status. Nonetheless, the Tribunal is satisfied that he also gained some social contacts through these activities. It is therefore satisfied that the conduct does not fall within the scope of s.91R(3) of the Act.

    Summary of findings

12. In sum, the Tribunal finds that the applicant has had very little political interest in Fiji It accepts that he joined some local youth in political protests in 2006 (for instance, swearing and posting graffiti), and that he may have been taken to the military camp and assaulted. However, the Tribunal finds that the applicant does not have a strong political opinion, but rather has placed priority on his children, the church and his work. The Tribunal finds that he left Fiji for [Country 1] for missionary work, and not to flee serious harm or significant harm, or to seek greater freedom to engage in politics. The Tribunal accepts that the applicant has joined Fijians in Australia in some meetings, for both social and political reasons. However, it finds that his involvement has been low-key and infrequent. It is not satisfied that the Fijian authorities or anyone considers him to have a political profile or motivation; that he has ‘openly associated’ himself with Ms Kirwin in person; or that he is perceived to be linked with dissident or secessionist activities.    

    ASSESSMENT: REFUGEE CRITERION

13. The Tribunal now assesses whether the applicant has a well-founded fear of persecution for a reason set out in s.5J(1), having regard to the above findings of fact, his future conduct, and relevant country information. Having concluded that the applicant engaged in some activities with the Fijian community in Australia, for both social and political reasons, the Tribunal also has regard to this in its assessment (as s.91R(3) does not apply).

14. The Tribunal considers that, if he returns to Fiji, the applicant will continue to favour SODELPA, as in the past. It does not accept that he has any political opinion that will motivate him to seek opportunities to become active, or that he will have to refrain from such activities, only to avoid persecutory harm. The Tribunal finds instead that the applicant will focus, as he has in the past, on his sons, his church and his work.

15. The Tribunal accepts that his local community and friends may learn that he has socialised and attended meetings with Fijians in Australia, some of which were political in nature. But it does not accept on the available evidence that the Fijian authorities, or even members of the applicant’s local or church communities, will perceive him to have been politically active or influential, in relation either to opposition politics (namely the SODELPA) or Ms Kirwin’s pro-Christian secessionist agenda.

16. Country information discussed with the applicant indicates that there is nothing to suggest mere supporters of SODELPA or other opposition political parties – such as people who favour or vote for the party, or attend occasional meetings with high profile politicians or visitors, or who make local donations – are at risk of persecution. The Tribunal alerted the applicant, for instance, to the Department of Foreign Affairs and Trade’s view that it is public figures and persons with influence who may be at risk of being targeted, not supporters:

    3.73 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 Fiji First and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.

    3.74 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. […]

17. The Tribunal notes that the Fijian authorities have spoken harshly about Ms Kirwin, prohibited her re-entry into Fiji and signalled their intention to prosecute those advocating secession. The Tribunal does not accept that the applicant ‘openly associates’ with her, or that the Fijian authorities will perceive him as such. It finds that his contact and involvement with PISAI have been very limited, and have not generated any documentation or publicity. It finds the chance that the Fijian authorities will become aware of, or even enquire about any such contacts, to be remote. Accordingly, it finds no real chance that they will discover his contacts with Ms Kirwin, her associates and/or PISAI, and inflict serious harm on him for that reason.

18. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It has taken into account, among other things, that he prefers SODELPA and similar groups who promote Fijian rights and Christian values; that he had a run-in with the Fijian military in 2006, which led to his detention and mistreatment, but which had no further consequences; that he has had  minimal political interest or activities since then (mainly due to other personal and family priorities); and that he has had only a low-level, intermittent contacts with Fijian groups in Australia who have voiced opposition views.

19. In sum, the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution for reason of his political opinion, actual or perceived. There is nothing to suggest that he has a well-founded fear of persecution for any other reason set out in s.5J(1).

20. The Tribunal is therefore not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Fiji. It follows that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

21. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.

22. The Tribunal takes into account the above findings of fact, its view of the applicant’s future conduct and country information discussed at hearing It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm, for any reason, if he returns to Fiji.     

23. The Tribunal appreciates that the applicant has concerns about Fiji’s political system, human rights shortcomings and its uncertain economic outlook. These have undoubtedly added to his hope of being able to settle in Australia with his two sons. However, the Tribunal is not satisfied that these conditions involve the risk of him or his sons being subjected to ‘significant harm’. Also, under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that these general conditions affect all Fijians, and not the applicant personally. Accordingly, the Tribunal finds that there is no real risk that the applicant will suffer significant harm in Fiji as a result of general political or economic conditions.

24. Accordingly the Tribunal is not satisfied that 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: s.36(2)(aa).

    THE SECOND- AND THIRD-NAMED APPLICANTS

25. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions.

26. In the present case, the delegate did not include the second- and third-named applicants in the decision under review. The review application as it relates to the second- and third-named applicants was therefore not properly made and the Tribunal does not have jurisdiction in respect to them.

    CONCLUSION

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

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

29. 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).

30. The Tribunal has no jurisdiction in relation to the second- and third-named applicants, as they are not subject to a reviewable decision.

    DECISION

31. The Tribunal affirms the decision not to grant the first-named applicant a protection visa. The Tribunal has no jurisdiction in respect of the second- and third-named applicants.

    James Silva

    Member
    CRITERIA FOR A PROTECTION VISA

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.