1602009 (Refugee)

1602009 (Refugee) [2018] AATA 4644 (1 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602009
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Meena Sripathy
DATE:1 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 November 2018 at 9:45am
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – opposition to current government – potential whistle-blower – involvement in fraudulent transactions – association with senior government officials – fears reprisals from previous employment – no protection for whistle blowers – criminal record – credibility issues – inconsistencies related to her employment history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 on 1 February 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 on 30 November 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant feared harm for any of the reasons set out in s5J(1)(a) or that she faced a real risk of significant harm.
The issues in this review are whether there is a real chance, if the applicant returned to Fiji, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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 themselves 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age] year old woman of Fijian nationality. Information provided in her application form indicates she is divorced, and has a [child] who resides in Fiji. She is tertiary educated, with a [degree] from [University 1] in [year]. She held numerous jobs in Fiji prior to coming to Australia including volunteer positions at the [Organisation 1] and [Organisation 2] and most recently as a [Occupation 1] at [Organisation 3] until August 2015.
She indicates that she left her country because she felt threatened and insecure due to government policies. She wants to remain in Australia because Fiji is no longer a place where human rights are respected. She states she suffered mental harm due to 24/7 surveillance because of her work as a [Occupation 1] when she was asked to do certain things. She does not believe the authorities will protect her.
The applicant submitted various documents in support of her [application].
The applicant was interviewed by the delegate on 28 January 2015 and the Tribunal has listened to an audio recording of this interview.
On 29 January 2016 the delegate received an email from [Ms A] in support of the applicant’s case. The email stated the writer was a former colleague of the applicant at [Organisation 3] where she worked [in a specific role]. The [managers] of [Organisation 3] were [Ms B], now [working for the government] and [Mr C] who [is a senior government official]. The writer states she resigned from [Organisation 3] on grounds of ‘moral beliefs which may have contradicted certain transactions that she became involved in along with the applicant’. The writer states that she cannot provide further details because she remains in Fiji and there is no protection for whistle blowers.
Before the Tribunal
In August 2017, the Department forwarded to the Tribunal information relating to the applicant provided by [State 1] Police. A certificate under s 438 was placed on the document, on the basis that the information was given to the Department in confidence. The Tribunal is of the view that this is not a valid reason for the imposition of the certificate, as nothing in the material supports that the [State 1] Police gave the information to the Department in confidence. This was discussed with the applicant at the commencement of the hearing and the substance of the email was disclosed to her, which she also confirmed in her oral evidence.
On 21 August 2018 the applicant provided a Statutory Declaration dated 21 August 2018 in support of her application. The statutory declaration essentially reiterates claims made previously. She refers to her role in preparing documents relating to [transactions] which she knew to be inaccurate. She claims she was forced to prepare the documentation because she feared if she did not that she would be subject to threats and torture as the husband of the [manager] of [Organisation 3] had much influence in [a specific part of the government]. She claims [Ms B] was involved in these activities to further her [career] and that her (the applicant’s) political views and that of [Ms B] were at great divergence and she only did as she was told due to fear of being referred to her husband and the [government]. She refers to her suspicion that [control of the resources referred to in the transactions was] being assigned to [Government Section 1 so that they] could then be distributed by [a senior government official] as he saw fit. She provides a copy of [relevant legislation]. She refers to Bainimarama’s control of the government and military and his approval of beatings of civilians, giving as an example the case of [a particular individual], copies of articles attached. She fears return due to her knowledge of the [transactions]. She fears she will be charged and jailed on trumped up charges due to her political beliefs which are contrary to the regime on the issue of [the relevant resources]. She attaches copies of her own research in support of her claims relating to political opinion.
The following is a summary of the applicant’s evidence at the hearing. She lives in rental accommodation in [Australian City 1] with 3 other individuals, who contribute to the rental payments. She no longer lives with her former partner, [Mr D], in respect of whom she has a current AVO. She stated that she was in a relationship with [Mr D] prior to coming to Australia, since around 2013. He came to Australia after her in 2016. In Fiji, the applicant has a [age] year old [child], who for the past year has been in boarding school, and [number] siblings, who are all married and have their own families. The applicant financially supports her [child] by paying the boarding school fees.
The Tribunal addressed the matter of a s 438 certificate provided by the Department to the Tribunal relating to an email correspondence. The Tribunal explained that, in its view, the stated reason for the certificate, being that the information was given in confidence, does not appear to be valid. In any event the Tribunal is inclined to disclose the information given that it relates her to and may be relevant to the issue of her credit. The information is an email from [State 1] Police to the Department relating to criminal charges laid against the applicant in August 2017. The applicant acknowledged that charges were laid and she has since been convicted of the charges against her and is serving a good behaviour bond. She confirmed her Bridging Visa was subsequently cancelled and she is separately appealing this decision.
The applicant confirmed her education and employment history. She has a [degree] from [University 1]. She commenced her tertiary education by doing a foundation course in [year], but then stopped her education, worked and got married. She returned to university in [year] and obtained her degree in [year]. In between this time she worked in several jobs, including volunteer outreach for the Peoples Charter in 2007-2009 and paid work for [Organisation 1] between 2012-2013. In 2014 she started working for [Organisation 3] . The Tribunal asked how she obtained this work given it did not appear to be in her area of study or field of expertise. She said she was asked to work there by the then [manager] of [Organisation 3], [Ms B] who she knew from her university days in [year]. [Ms B] was at that time also [seeking work in a government role]. The applicant stated that she was friendly with [Ms B] and [supported her efforts in advancing her career]. She confirmed that [Ms B] [secured a position] and subsequently [was promoted to a senior role]. She ceased being [manager] at [Organisation 3]. The new [manager] is [a named person]. When the applicant worked at [Organisation 3] there was only herself, [Ms A] and later the new [manager]. [Ms A] left [Organisation 3] before the applicant and after that it was only herself and the [manager]. She does not know who is there now.
The Tribunal asked the applicant why she did not provide the email she referred to at the Department interview from [Ms A]. It reminded her that she said at that interview that [Ms A] had emailed her around the time of Fiji Day to say that [Ms B] was looking for her, but the email received by the Department after the interview, a copy of which she has also provided to the Tribunal does not appear to be that email. The applicant agreed that it was not the email she referred to at the interview. She said she could not locate that email after the interview because it was sent to her work email address and she could no longer access it. She contacted [Ms A] and she agreed to provide the email she sent.
The Tribunal put to the applicant that a search of an internet site listing [Fijians working as Occupation 2] did not include [Ms A]. It asked her if she was aware of any other names used by this person. The applicant indicated she did not know of any other name she uses and reiterated that she is a [Occupation 2]. The applicant’s representative indicated that he has located a reference to the [employment as Occupation 2] of a [person with a full name similar to Ms A] in 2012 and he can provide a copy of [this] after the hearing.[1] The Tribunal indicated that it has seen reference to a [person with a full name similar to Ms A] on the list [referred to earlier] and therefore if this is her full name it accepts that she is a [Occupation 2] as claimed.
[1] [Source deleted]
The Tribunal asked the applicant why she fears return to Fiji now. She said she is afraid because of her knowledge about [transactions] conducted at [the organisation] she worked at in 2014 and 2015. The Tribunal asked the applicant to elaborate on this more – about the work she did and the knowledge she has. She said she was involved doing documentation for [[particular transactions]. When asked to provide further details, she could not. She said she was ‘facilitating agreements given to her by [Ms B] that she knew to be against the [relevant legislation].
The Tribunal asked who she is afraid of because of this. She said she is afraid of [the government]. When asked why she is afraid of [the government], she said because of the information she has.
The Tribunal put to the applicant its concerns about her case. She has not provided any documentary evidence to support her claimed employment at [Organisation 3] and this, together with her vague and non specific oral evidence, may lead the Tribunal to have doubts that she worked there at all. She has also not provided any evidence of the [management] or connection between [Ms B] and [Organisation 3] and this may lead the Tribunal to not accept that [Organisation 3] has any connection to [Ms B], even if she worked there. The Tribunal may also have a concern, if it accepts she worked [there] as claimed, about whether she will face serious or significant harm for this reason if she were to return. The Tribunal put to her that an issue arises about whether, given her oral evidence, she would be of interest to [the government] or anyone who would harm her upon return. It asked her if she wished to say anything further or comment on these concerns. The applicant repeated her claim that she was involved in the [transactions] and would be in danger for this reason. She offered no further details.
The Tribunal noted that she has also claimed that [Ms B]’s husband is [a senior government official] and it noted that this is confirmed in [information] available about [Mr C].[2] It put to her that if he is [a senior official] and had an interest in her, why would she have been able to depart the country without any problems. She said she was able to leave because they did not know she was leaving. The Tribunal put to her that it may be that she was able to leave without an issue because she is not of interest to [Mr C] or [Ms B] or anyone else in [government]. The applicant stated that she did not agree with this.
[2] [Source deleted]
The Tribunal asked the applicant if there is any other reason she fears harm in Fiji. She said there is not. She fears that [people working for the government] will take her away if she returns for the reasons she has stated. The Tribunal asked the applicant if she suffered any harm in the past from [the government], or anyone else. She said she has not.
The Tribunal invited the applicant’s representative to make submissions. He stated that [the webpage] of [Organisation 3] makes reference to the association between [it and Ms B] and he can provide this evidence to the Tribunal. With regard to the [stated transactions], he submitted that the applicant’s claim is that her knowledge about the [transactions] undertaken at [Organisation 3] place her at risk because the relevant people continue to be in positions of authority in Fiji. Regarding her claims about involvement in the Peoples Charter, it is likely she is referring to the consultations that were undertaken around the country at that time. The Tribunal clarified with the applicant whether she is claiming to fear harm on the basis of this past work on the Peoples Charter and she confirmed that she is not. The representative confirmed that her claims are solely based on her work at [Organisation 3]. He submitted that [this kind of] work in Fiji is largely done by clerks and therefore it is plausible that she was able to do this work despite not having [prior experience or] qualifications. He undertook to provide further evidence to support the applicant’s claims as indicated. The Tribunal indicated it will allow a period of one week after the hearing for further evidence.
On 19 September 2018 the Tribunal received further documentation in support of the applicant’s claims, including
·extracts from [a webpage] relating to [Ms B], referring to her as [title of position] at [Organisation 3], and [another named person] and the applicant, indicating their employment at [Organisation 3];
·Newspaper [article], [title deleted], referring to [Ms A’s full name] amongst [a group of new Occupation 2 employees].
·Photos and email correspondence evidencing the applicant at work.
Departmental file notes relating to the applicant’s [Visa] application indicate that the applicant claimed to be ‘[Occupation 3] for [Organisation 3] for the past 2 years’.
Independent information
Peoples Charter
In September 2007, the Interim Government of Fiji decided to launch a national initiative to Build a Better Fiji for All through a Peoples Charter for Change, Peace and Progress (PCCPP). Accordingly, the Interim Government recommended to His Excellency, the President, that a National Council be established for that purpose. The President officially launched the Peoples Charter initiative on October 10, 2007 and took steps to establish a 45 member National Council for Building a Better Fiji (NCBBF).
In the second step of the process, the NCBBF was to prepare a draft Peoples Charter. This was to be done by drawing upon the findings and recommendations contained in the SNE Report and also the feedback obtained through the NCBBF’s outreach activities and consultations undertaken throughout the country including the coverage of all urban centres and more than 1000 villages and settlements across the nation. The preparation of the SNE Report was to be undertaken through a process of extensive, countrywide consultation and participation. NCBBF finalised the draft document and submitted the Peoples Charter for Change, Peace and Progress to His Excellency, the President of Fiji on 15 December, 2008.[3]
[Government Section 1]
[3] National Council for Building a Better Fiji 2008, Fiji – Peoples Charter for Change, Peace & Progress, 15 December, pp.i-iii – Accessed 24 August 2009 – Attachment 1

[Paragraph deleted].[4] [5] [6]
[4] [Sources deleted]
[5] [Sources deleted]
[6] [Source deleted]
[Paragraph deleted].[7]
[7] [Source deleted]
[Paragraph deleted].[8] [9]
Political opinion
[8] [Source deleted]
[9] [Sources deleted]
The most recent Country Information Report of the Department of Foreign Affairs and Trade on Fiji states the following regarding to Political Opinion:
3.38 Fiji’s Constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
3.39 The Political Parties (Registration, Conduct, Funding and Disclosures) (Amendment) Decree 2013 and Electoral Decree 2014 provide the legislative framework for the registration and conduct of political parties. Some of the administrative processes for establishing a political party are restrictive: for example, there are harsh penalties for non-compliance, parties must gather 5,000 signatures to register and candidates can be barred from elections for any election-related offences.
3.40 A range of decrees in place prior to the 2013 Constitution limits these rights in practice. In particular, The Public Order (Amendment) Decree 2012 permits the Commissioner of Police to prohibit or subject to such conditions as he/she sees fit any procession, meeting or assembly on the grounds of public safety or public order. Under this decree, from June 2012 until late 2014, NGOs, political parties and others were required to seek permits to hold public meetings. At times these permits were withheld (further detail is provided below at relevant sub-sections). The implementation of this policy gradually became less strict, and by late 2014 political groups did not generally need to seek permission to hold public meetings. The new Public Order Amendment Act 2017 removes the requirement for a permit for a meeting in a public place; a permit is still required for a meeting organised or convened in a public park or on a public road.
3.41 Credible sources reported an increase in self-censorship by members of civil society on political issues. 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 high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention[10].
[10] DFAT Country Information Report 27 September 2017, p16
The 2017 US Department of State Human Rights Report provides the following summary:
Fiji is a constitutional republic. The country held general elections in 2014, which international observers deemed credible and “broadly reflected the will of the Fijian people.” Josaia Voreqe (Frank) Bainimarama’s Fiji First party won 32 of the 50 seats, and he was sworn in as prime minister.
Civilian authorities maintained effective control over the security forces.
The most significant human rights issues included: abuse of persons in custody; government restrictions on freedoms of expression and on the press and media; forced exile of government opponents; restrictions on the formation and operation of political parties; government corruption; and forced labor (including of children).
The government investigated some security forces officials who committed abuses, and prosecuted or punished officials who committed abuses elsewhere in the government; however, impunity was a problem.[11]
[11] US Department of State, Country Reports on Human Rights Practices for 2017 – Fiji, 20 April 2018.
FINDINGS AND REASONS
Nationality
On the basis of her evidence to the Tribunal, and copy of her Fijian passport on the Department file, the Tribunal accepts the applicant is a national of the Republic of Fiji and considers Fiji is her country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
In the present case the applicant’s claims are that she fears harm upon return to Fiji because of her knowledge about [transactions] obtained while she was working at [Organisation 3], [which was] previously [managed] by [Ms B] who is presently [working for] the Fijian government. She fears harm from [Ms B] and/or her husband Mr [C] who was [previously employed] in [a specific part of the government] and now [is a senior official in another government role]. She fears [harm] because she fears she may be blamed as a scapegoat for unlawful [transactions] if this matter were to come to light. She claims her political views are in opposition to the Fijian Government and she is at risk of harm from them.
Claimed employment at [Organisation 3]
The applicant claims she was employed at [Organisation 3] in 2014 and 2015. The Tribunal had some doubts about the veracity of this claim, given the limited evidence provided by the applicant in support and inconsistencies in the evidence she has provided. For example, she has provided no documentary evidence such as an employment contract, business card or correspondence on letterhead before the Tribunal that substantiates her claim regarding her employment. Also, the Tribunal observes information contained in the email from [Ms A] is not consistent with what the applicant told the delegate at the interview, where she said she worked at [Organisation 3] after [Ms A] resigned, and that they did not work there at the same time. The Tribunal observes she gave different evidence to the Tribunal, stating that she and [Ms A] did work there at the same time, but [Ms A] left before she did. On the other hand the Tribunal notes that department file records indicate she claimed to be working as [Occupation 3] at [Organisation 3] in her [visa] application. It has also considered the evidence provided following the hearing from [a webpage] and screen shots of work related email correspondence. Having considered all of the evidence now before it, the Tribunal has decided to give the applicant the benefit of its doubts and has proceeded to consider her claims on the basis that it accepts she worked at [Organisation 3] as claimed.
It also accepts her claims that [Ms B] was the previous [manager] of [Organisation 3] and is now a [senior government official]. Independent information confirms that [Ms B] has held positions [in various governmental roles]. The Tribunal also accepts that her husband, [Mr C] holds the position of [a senior official].
However, despite the above findings, the Tribunal does not accept the applicant’s claims about the nature of the work undertaken at [Organisation 3] and risk of harm to her on this basis. It found her evidence about the work she did there was vague and lacking in convincing detail. She referred to ‘preparing documents relating to [transactions]’ in written statements, but was unable to provide any further convincing detail when asked to elaborate on this at the hearing. When asked who her clients were and details of her specific role, she was unable to provide detail that would support her claim that she played any significant role in this work. She referred to having [clients from a certain ethnic background] but could not describe in any detail what [transactions] she was undertaking for them. On the basis of the oral evidence she has given, and absence of any other substantiating material to support knowledge she has of specific matters, the Tribunal finds that at most her involvement in the work undertaken at [Organisation 3] was of a clerical or administrative nature. Therefore, while prepared to accept that she worked at [Organisation 3] the Tribunal does not accept that she has information or knowledge from her work there which would bring her to the adverse attention of the authorities, or her former employer, [either Ms B or Mr C] or anyone else in Fiji. It does not accept that there is a real chance she will be blamed as a scapegoat for unlawful [transactions] if any matters relating to the work that [Organisation 3] was involved in came to light. There is also no evidence before the Tribunal to support a finding that any wrongdoing was taking place in the context of transactions undertaken in [Organisation 3]. The Tribunal also does not accept that the applicant was monitored or under surveillance while working at [Organisation 3] in the past, or that she is likely to be under surveillance for this or any reason in future.
The applicant has also claimed to fear harm on the basis of having political views in opposition of the Fijian Government. The Tribunal is prepared to accept that the applicant may have a political opinion in opposition to the government of the day, as evidenced by the document she prepared in support of her application and her oral evidence (although it also notes that she also told the Tribunal she [supported Ms B's efforts to secure a position in government] in 2014.) In any event, she has made no claims of involvement or activity in any political party or organisation, either in Fiji in the past or in Australia. She also stated that she did not suffer any harm for her political opinions or any other reason in the past in Fiji.
Country information before the Tribunal indicates that freedom of expression is guaranteed in the Fijian Constitution, although it is noted that the government has authority to restrict those rights for an array of reasons and there is a degree of self censorship by members of civil society on political issues. Elections were held in 2014, which were deemed credible and broadly reflected the will of the Fijian people. Following these elections, in late 2014 DFAT assessed that the environment for public expression of political opinion was more open than in previous years.[12] The Tribunal notes that the most recent DFAT report states that 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. DFAT assesses that [H]igh profile public figures including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.[13] The Tribunal does not, however, consider that the applicant falls within this category.
[12] DFAT Country Report Fiji, 14 April 2015, para 3.73
[13] DFAT Country Report Fiji, 17 September 2017, para 3.41
While the Tribunal accepts the applicant may not be in agreement with all of the government’s actions and/or decisions, given the country information before it and findings above relating to the applicant’s background, past experiences and profile, it is not satisfied that there is a real risk she will face serious harm for reasons of her political opinion, knowledge or involvement in any past employment, or any other reason upon return to Fiji.
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).
Complementary Protection
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 has 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 she will suffer significant harm as defined in s36(2A) of the Act: that she will be arbitrarily deprived of his life; or the death penalty will be carried out on her; or she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Fiji.
Having rejected above the applicant’s claim that she possesses information or knowledge from her past employment at [Organisation 3] that places her at risk of harm from her previous employer or the authorities, and given its findings about her political profile and past experiences above, the Tribunal is not satisfied there are substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Fiji for any reason.
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.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 4644

1 November 2018

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Immigration

Statutory Interpretation

Legal Concepts

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Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction