1602254 (Refugee)

1602254 (Refugee) [2018] AATA 2930 (15 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1602254
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Brendan Darcy
DATE:15 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 June 2018 at 4:15pm

CATCHWORDS

Refugee – Protection visa – Fiji – Particular social group – Participant of George Speight led coup – Member of Christian State or Ra Nation separatist movement – Political opinion – Anti-government – Ethnicity – Indigenous Fijian – Fear of harm from military – Embellished claims – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 5 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 the Republic of the Fiji Islands (Fiji), applied for the visa on 27 October 2015. The delegate refused to grant the visa on the basis that the claims were very limited.

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.

CONSIDERATION OF CLAIMS AND EVIDENCE

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background

The applicant was born on [date] in [a] district in Fiji’s [Province 1] and claimed to be a citizen of the Republic of the Fiji Islands.
A certified copy of the valid applicant’s Fijian passport in on departmental file ([number]) issued [in] 2015.
The applicant applied for a class XA subclass 866 protection visa on 27 October 2015,
His written claims for protection are contained in the submitted 866C application form and are summarised as follows:

The applicant claimed he departed Fiji because he fears harm from the military;
In 2000, the applicant claimed that he was part of the George Speight led coup and that he marched through Suva on that day as part of a large group that stormed the parliament with soldiers and held hostage the government members;
The applicant further claimed he escaped when soldiers shot at him while hunting;
The applicant also claimed that he was severely beaten and tortured by the military in 2006 and has been in hiding since. He claimed that he [was injured] due to the assault and torture;
In 2015, the applicant claimed he was involved with rebels to form a break away Christian state and the authorities are continuing to investigate this plot;
The applicant went to [Town 1] to hide and remained there for a year; and
Because Fiji is a small country, he will not be able to escape from the long arm of the law.

In the application form for protection, the applicant claimed to be able to speak, read and write in English and Fijian; that his religion is Seventh Day Adventist; that his ethnicity is Indigenous Fijian; and that he was married in [September] 1996. The applicant’s educational and employment histories in Fiji indicates that he did not graduated secondary college and that he has worked variously as a farmer; a [vendor]; a self-employed [occupation] and as a labourer for [a government] department; as well as being unemployed.
On 10 November 2015, the applicant was invited by letter to attend an interview to contact the department to arrange an interview; however the applicant did not respond and the delegate on behalf of the Minister proceeded to refuse to grant the applicant a protection visa on 5 February 2016.
On 24 February 2016, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal. The decision record was attached.
The applicant also attached with the review application a signed petition from village heads in the [named] district to support the applicant’s visa application. The petition is dated [in] February 2016. The signatories claim the applicant does not support Bainimarama Government and that he is one of the [members] of the ‘Christian State Movement’ in the district since 2015; and they also claimed the applicant was brutalised in 2006 in which he [was injured] for his support of George Speight and the Qarase government.
Also submitted was a letter from [an] Association date [in] March 2016 signed by its general secretary, [stating] that he was instrumental in stirring up genuine attempts in [Province 1] to support the Sovereign Christian State and claiming there is racial discrimination against the Taukei population.
On 29 March 2017, the applicant submitted a letter from a [member] from the Seventh Day Adventist church dated [in] February 2017 to testify that the applicant is a member of the church and that his a follower of [Mr A] (who faced trail in Lautoka High Court and was found guilty of [sedition] in August 2017).[1]

Oral Evidence at the Hearing

[1] Fiji judge finds 15 people guilty of sedition, RadioNZ online, 23 September 2017, type="1">

On 5 April 2017, the applicant appeared via video link between the Tribunal’s Melbourne offices and [a Magistrates’] Court [to] give evidence and present evidence that he is owed Australia’s protection obligations.

During the hearing, the applicant elaborate that he was originally married in 1996 to [Ms B] with whom he had [a number of] children and that she had previously been in a spousal relationship with another man back in Fiji, whom she had children. He further claimed that he was separated from his wife in 2000.

The applicant elaborated on his written claim that he had been involved in the establishment of the Christian State or Ra State movement prior to his departure to Australia in November 2015. He claimed that in June 2015, he attended a meeting in [Province 2]. He claimed it was similar to the meetings in [Province 3]. At the meeting, the boundaries regarding land and fishing rights were discussed as ‘the Muslim’, Aiyaz Sayed-Khaiyum, acting from the Prime Minister Bainimarama had made a controversial decree on fishing rights. As discussed in the hearing, Mr Sayed-Khaiyum has holds the Attorney-General and Finance portfolios and has been acting Prime Minister in the past. The applicant explained that he joined the movement when [Mr A] encouraged him after a March 2015 [meeting]. [Mr A] knew that the applicant opposed the Bainimarama government because knew that was involved in the George Speight coup in 2000.

The Tribunal enquired of the applicant to describe the aims of the Christian or Ra State movement; to which the applicant responded that like the government to stop interfering with the Indigenous communal land rights and said that while the opposition SODELPA party supported indigenous rights and restoring the constitutional role of the chiefs, it has not been effective. The Tribunal enquired whether he thought the Christian or Ra State movement was a political movement; he said that it was an idea supported by representatives from different villages to rescind the secular Fijian Republic and restore Christian and Taukei (or Indigenous) rights that have been negatively impacted upon by taking their authority over communal resources. He elaborated that the government has curbed the rights to cut wood and harvest the forests and require traditional Indigenous people to obtain fishing licences over their own fishing grounds. The applicant also added the opposition party has been too weak in fighting for Indigenous rights. Asked whether the applicant could name any of the leaders of this separatist movement, he was able to mention a number of meetings.

Asked whether anything notable happened at the June 2015 meeting, the applicant mentioned that the police were present at the meeting to listen. He claimed the police informed the government of the meeting’s radical and provocative agenda about forming another government or state. The applicant claimed that later a number of participants were arrested and then accused of sedition by the authorities between June and September 2015, with as many as sixty people arrested and sixteen had been charged with sedition. While the applicant did not claim that he was among the detained, as he escaped He claimed he was a person of interest to the authorities because [Mr A] who had been tortured, provided his name to the authorities under duress. He claimed that friends in his village had informed him the authorities were looking for him. The Tribunal enquired into the reasons the applicant was able to depart from Fiji later in the year given he was a person of interest to the authorities due to his role in the separatist movement; however he was unable to provide an explanation – although he suggested later in the hearing that the authorities were late to add his name to a stop list for persons of interest when they were departing or entering Fiji.

The applicant claimed that he was involved in the dramatic incidents in the year 2000 when George Speight led rebel soldiers into Suva’s parliamentary precinct, kidnapped the then Prime Minister Mahendra Chaudhry and other parliamentarians. The applicant claimed he was one of the participants involved in the hostage but he managed to escape and hide [and] so was never detained. He further claimed that the authorities had a photograph of him and found him in 2006, when he was detained and then beaten and tortured (which included [a specific injury]). He claimed he was not arrested between 2000 and 2006 because the investigation had died down. He claimed that he did not have any medical reports from 2006 and he did not seek out any legal or non-government assistance because the military’s control over Fiji was so deep.

Since leaving for Australia, the applicant claimed that the military personnel initially visited his wife who told the soldiers that the applicant was in Australia soon after he left to ask about his whereabouts. He also claimed that asked a second time when the applicant was intending to return and claimed there did not want the applicant to be involved in any anti-government activities. However the applicant was unable to explain the reasons he was not on the stop list prior to his departure, given his claim he was detained as a person of interest during the 2006 coup, except to mention that the interest was heightened in 2015 because of his involvement in a Ra State meeting prior to his departure.

The applicant further outlined during the hearing that since residing in Australia he has posted comments on social [media], under the alias of ‘[name]’ for the last year. He claimed that he has not been involved in public demonstrations or protests against the Bainimarama government ; that he has not met anyone from the Christian State or Ra Movement in Australia or been a formal member of the anti-government pro-democratic Fiji Democracy and Freedom Movement (or FDFM), although he participates on the FDFM [social media] page.

The applicant was provided a post hearing opportunity to submit further documents to substantiate his claims by 18 April 2017.

Post Hearing Submission

On 18 April 2017, the applicant submitted a number of comments that were posted about the 2014 Fijian parliamentary election and current affairs; and a Radio NZ online report dated 4 April 2017 about the control of social media in Fiji; and a number of other media and NGO reports about the human rights situation in Fiji.
Also submitted were a number of registrations of the births related to the applicant. These include:
·     The applicant’s first wife, [Ms B] born [date];
·     The applicant’s son, [born] [date];
·     The applicant’s daughter, [born] [date];
·     The applicant’s son, [born] [date];
·     The applicant’s second wife, [born] [date];
·     The son of his second wife, [born] [date];
·     The applicant’s son, [born] [date];
·     The applicant’s son, [born] [date];
On 17 October 2017, the applicant provided a typed note addressed to the Tribunal. In summary it stated that he left behind his second wife who was then [number of] months pregnant and it was the most difficult decision of his life. He departed because he is anti-Bainimarama and they left on him a scare so painful. He fears being arrested again and brutally beaten by the military as they still have much control over Fiji. He further stated that he loves his family and he doesn’t want to them to see him dead. Fiji does not care about his family or the lives of those who talk against the government.

ASSESSEMENT OF CLAIMS AND FINDINGS

Country of Reference

The applicant provided a copy of her Fijian passport which in on departmental file and; the passport was issued by an authority in the Republic of Fiji (Fiji).[2]
[2] DIPB Folio 39
Based on these documents and without evidence to the contrary, the Tribunal finds that the applicant is a citizen of the Republic of Fiji, that the Republic of Fiji is the first and second applicants’ country of nationality for the purposes of the Refugees Convention, and that Fiji is their receiving country for the purposes of complementary protection.

Third Country Protection

With no evidence to the contrary, the Tribunal finds that the applicant has no a right to enter or reside, either temporarily or permanently, any safe third country for the purposes of s.36(3) in the Act.

Assessment of Claims

Overall, the Tribunal found a thread of consistency and detail in his written and oral claims for protection supported by third party letters. It has accepted many elements of the applicant’s claims about his political opinion and activities to be reliable and credible. However, as outlined below, it has made some adverse findings about the credibility of some of those claims and that they had been embroidered, understandably, to augment his otherwise credible claims that he is owed Australia’s protection obligations.

Limited Accepted Personal Circumstances

The Tribunal accepts that the applicant was born in Fiji in [year] from [Province 1]; that he is ethically Indigenous Fijian (or Taukei) and that he can speak, read and write English and Fijian; and that his religion is Christian belonging to the Seventh Day Adventist denomination.
Regarding his family composition, the Tribunal accepts that the applicant has adult children from another marriage and that the applicant’s current wife resides in Fiji and that he has [number] children.
It accepts the applicant has limited education and has worked variously in a number of low skilled jobs and has experienced periods of unemployment prior to departing for Australia in 2015.

Political Claims

The applicant has provided written and oral claims in some detail about his involvement in the Nadroga Navosa Sovereign Christian State or Ra Nation separatist movement. These have been complemented by a number of letters and petitions from third parties that the applicant was a member. His own testimony indicated that he was attended a meeting in June 2015 in [Province 2] and he is described as a founder member or a supporter driving for the movement to have a presence in the applicant’s home [province]. The applicant also provided oral testimony about his political opinion about the infringements of the Indigenous or Taukei communal rights by the Bainimarama government through licencing and commercialisation, about the SOLELPA being ineffective in fighting for Taukei rights and about his objections that non-Christians like the Attorney General has played a role in diluting communal land rights. The Tribunal found the oral evidence to be detailed and reasonably articulate commensurate with Indigenous ethnicity and background where he was raised on communal land but more that was more than commensurate to his limited education. It accepts that the applicant has long held these political opinions and that these views would have aligned with views of George Speight and his failed coup plotters in 2000 and that, in 2006, he did support the deposed pro-Indigenous Qarase government and did oppose the Bainimarama military coup. It is also accepted that the applicant was invited to join this movement by one of its leaders, [Mr A], who is a person of interest to the authorities and has been [arrested] for breaching Fiji’s seditious laws.
Based on the weight of the credible evidence, the Tribunal accepts the applicant’s past and ongoing political opinion is in favour of greater Indigenous rights, the restoration of traditional chiefs in the constitution and Taukei nationalism and that he opposes the Bainimarama government who has promoted a non-discriminatory constitution and more economically diverse Fiji following the 2006 coup. It accepts that the same leaders of the 2006 coup, now rule Fiji through the FijiFirst party having parliamentary majority since the 2014 election and that this does not allay the applicant’s personally held fears that the government and the military has the capacity to act arbitrarily and that effective protection measures are not satisfactorily or necessarily accessible, durable or impartial.

Accordingly, the Tribunal accepts that the applicant has genuine personally-held or subjective fears of being persecuted by the authorities in his country based on his actual anti-government political opinions. if he were to return to Fiji.
However, the Tribunal is not satisfied the applicant has a well-founded fear of persecution based on his political opinion, imputed or otherwise, as it is not satisfied that the applicant’s association with the Christian State or Ra Nation separatism amounts to him being a person of interest to the authorities, either on arrival or in the wider Fijian community.
Firstly, as discussed in the scheduled hearing, the applicant was able to depart from Fiji in November 2015 without being arrested, questioned or detained by the authorities, indicating that his name was not on a black or ‘Stop Watch’ list. According to the DFAT report, all inbound and outbound passengers (including Fijians) are checked against the Oracle system, which includes a ‘Stop Watch’ List (including, for example, entries based on court orders to stop departure, or alerts from Customs if the passenger has outstanding tax debts). The applicant provided the explanation that the authorities had been tardy in adding his name to the list. However, this seems unlikely given the authorities had arrested about 16 Ra Nation separatists, including [Mr A], between July and September 2015. Had the applicant been a person of interest arising from his limited involvement in the Christian State or Ra Nation separatist movement, it would have been reasonable that his name was placed on the Stop Watch list prior to his departure.
Secondly, the Tribunal is not satisfied the applicant is a person of interest based on his claimed activities prior to 2015. During the hearing, the applicant elaborated on his involvement in the 2000 coup and hostage event and that he had been detained and seriously physically harmed and tortured in 2006 for his pro-George Speight/pro-Qarase government political opinion. He also submitted letters from third parties to attest to 2006 incident of past harm. However, the applicant provided oral testimony that he had applied for and was granted a passport in 2002 for work purposes but did not used it as he kept a low profile and was focused on his family. The Tribunal accepts this but, as raised during the hearing, the applicant had the opportunity to depart from Fiji to a safe country given he had claimed earlier that he hid in [Town 1] to avoid the authorities in 2000 and that he had been tortured in 2006. Neither was the applicant able to explain the reasons his name was not on the Stop Watch list in 2015 that given he claimed to be known and was detained to the authorities in 2006. This strongly indicated to the Tribunla that not only did the applicant not have a sufficiently heightened profile with the either Bainimarama’s military or the current democratically elected government and these claimed activities, including by third parties, were submitted to augment the applicant’s otherwise genuine political opinion claims.
Thirdly, as discussed in the scheduled hearing, the applicant’s sur place activities since arriving in Australia have been very limited. The applicant admitted that he has never been involved in any anti-government protests or activities or holds any pro-democratic memberships with organisations such as the Fiji Democracy and Freedom Movement (FDFM) or those associated with the Christian State or Ra Nation separatism. In this regard, the Tribunal has also considered the country information that the current Prime Minister stated that ‘We Will Track You Down’ as reported in the Fiji Sun on 30 August 2015. Country information indicates these comments were not directed to the FDFM as a whole but specifically towards the punishing dissents in the secessionist movement known as the Nadroga Navosa Sovereign Christian State or Ra Nation separatist movement.[3] Country information indicates that the authorities have arrested around 60 to 76 persons for charges of sedition or related to sedition.[4] The Fijian Government has also formally banned Ms Oni Kirwin from travelling to Fiji. A Fiji Sun report stated that Ms Kirwin 'is believed to spend time in Sydney to work with the so-called Fiji Democracy and Freedom Movement to raise funds for those accused in the alleged sedition.[5] No further reports were located linking the FDFM to Kirwin. The Tribunal accepts there is a connection between Ms Oni Kirwin who has involvement in both FDFM and the Nadroga Navosa Sovereign Christian State or Ra Nation secessionist movement. However, based on the country information, the Tribunal finds that this overlapping association between Ms Kirwin and the FDFM, the authorities will not assume or impute that the applicant has been active in supporting the same secessionist movement but virtue of being in Australia, as the applicant has not been active in the FDFM movement by his own admission.
[3] ‘We Will Track You Down: PM’ FijiSun online, 30 August 2015, Fiji: CI160414113158909 Nadroga Navosa Sovereign Christian State / Ra Nation – Sedition
[5] Bolatiki, M and Pratibha, J 2015, 'Exposed', Fiji Sun, 26 August <>
With regard to the applicant’s sur place social media activities, the Tribunal notes that the applicant has provided printed copies of anti-government comments he has uploaded online. While the Tribunal accepts that the authorities do monitor online activities, including for ‘hate speech’, the applicant has admitted to and provided evidence that he has used an alias, indicating that the authorities are not aware of the applicant’s anti-government views. The Tribunal also notes that he under the alias the applicant’s comments were not in favour of Christian State or Ra Nation separatism, although the comments are politically provocative. Based on the comments being anonymous, the Tribunal assesses that the government will not be aware of the full range of the applicant’s anti-government views and does not place any weight on these sur place social media activities in favour of finding the applicant is a person of interest to the authorities.
The applicant has also made a claim that the Seventh Day Adventist [Mr A] or others have provided his name to the authorities when they were questioned under duress. As discussed in the hearing, the applicant appears to be speculating that his and other names were provided to the military. Furthermore the country information indicates that no serious harm through torture or maltreatment has been claimed. For this reason, in the context of the applicant’s being able to depart without being apprehended as a person of interest, the Tribunal does not accept the authorities are aware of the applicant’s political opinions in favour of Christian State or Ra Nation separatism.
In cumulatively considering the Tribunal’s concerns about the applicant being a person of interest based on his political opinion, the Tribunal finds it cannot provide the applicant the benefit of the doubt that he was and remains a perrons of interest to the authorities for the reasons claimed. The Tribunal finds that the applicant’s role in the Nadroga Navosa Sovereign Christian State or Ra Nation separatist movement was limited to holding similar views and to attending a meeting and that this limited involvement and membership did not extend being a person of interest as he was never questioned or arrested prior to his departure in 2015. The Tribunal finds that the applicant has significantly embellished his otherwise genuine political opinions and very limited past involvement with a pro-Indigenous separatist movement so as to augment his claims that he is a person of ongoing interest to the Fijian authorities. The applicant contrived his activities in the past in Fiji whereby he was involved in the George Speight’s abortive 2000 coup and whereby he was tortured in 2006 by the military led by the current Prime Minister Bainimarama. The applicant has speculated that his name was given up to the authorities by [Mr A] who is now sentenced for sedition and that third parties that assisted in the applicant by repeating the applicant’s embellished claims based on his request to remain in Australia, for the same reasons.
In this regard, the Tribunal makes a further finding that while the applicant does have genuine personally held fear of persecution based on his political views, both actual and imputed; the fears are not deeply or urgently held either at the time of his application for protection, now or into the foreseeable future.
For these reasons and given the applicant’s lack of conspicuous sur place activities, the Tribunal has found the applicant will not return to Fiji to undertake ongoing anti-regime activities as this indicates a lack of overall commitment to acting on his political views and there is no there is no real risk of the applicant facing serious harm of being harmed for any imputed association with the any breakaway or secessionist movement within Fiji, either on arrival or in the community, based on his sur place activities or his very limited activities, as accepted by the Tribunal, prior to 2015 departure from Fiji.
In this review application, the Tribunal has accepted that the applicant does have genuine anti-government political opinions in favour of greater Indigenous rights. It has accepted that his involvement in the Christian State or Ra State separatist movement but the involvement was considerably limited. Furthermore it does not accept that the applicant is a person of interest to the authorities as outlined above, either based on the applicant’s actual or imputed political opinions. Accordingly, while the applicant has a chance of serious harm arising from his political claims, the Tribunal does not accept the applicant has a chance of harm based on his political opinion, imputed or otherwise, that is more than a remote or insubstantial or far-fetched chance.
Based on this ‘real chance’ finding, the applicant accordingly does not have a well-founded person of persecution based on his actual or imputed political opinion that will satisfy s.36(2)(a), if he were to return to Fiji in the reasonable foreseeable future.
As the 'real risk' test is the same as the ‘real chance’ standard: MIAC v SZQRB [2013] FCAFC 33, it follows that the Tribunal does not accept that there are substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk of significant harm, including the torture, being subjected to cruel or inhuman treatment or punishment or being subjected to degrading, for reasons based on the applicant's political opinion, imputed or otherwise.
Based on the Tribunal's findings about the applicant’s claims, both individually and cumulatively, and its assessment of the available evidence and country information, the Tribunal is not satisfied that the applicant will face a real chance of serious harm of serious harm for any reasons mentioned in s.5J(1)(a), either on arrival or in the wider community, if the applicant were to return to the Republic of the Fiji Islands, now or into the foreseeable future.

Residual Claims

For completeness, the Tribunal has also considered the claim made by the applicant and on his behalf by [an] Association that Fijian authorities discriminates against Indigenous or Taukei Fijian. In this regard the Tribunal notes that the 2015 DFAT report and the most recent 2017 DFAT report assesses there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians. The continued existence of the indigenous Fijian administration (provincial councils and the iTaukei affairs ministry) is a minor form of positive discrimination towards indigenous Fijians. And the overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. Based on this country information and the applicant’s ethnicity as an Indigenous Fijian, the Tribunal finds that the applicant will not face a real chance of serious harm arising from his race or ethnicity or in combination with any other reasons mentioned in paragraph 5J(1)(a) or there are substantial reasons to believe that the applicant will face real risk of significant harm based on his race or ethnicity, if he were to be removed from Australia to his country of reference.

Cumulative Findings

At no stage did the applicant advance that he will face a real chance of serious harm or a real risk of significant harm based on his religion or any other factor. There are no more residual claims to be assessed in this review application.
Based on the Tribunal's findings about the applicant’s claims, both individually and cumulatively, and its assessment of the available evidence and country information, the Tribunal is not satisfied that the applicant will face a real chance of serious harm of serious harm for any reasons mentioned in s.5J(1)(a), either on arrival or in the wider community, if the applicant were to return to the Republic of the Fiji Islands, now or into the foreseeable future.
The Tribunal accordingly finds that the applicant does not have a well-founded fear of persecution that satisfies 5J(1)(a),(b) or (c) and that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or within the meaning of refugee as required by s.5H(1).
Accordingly based on all available information and evidence, 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 of significant harm. The Tribunal does not accept that the applicant will suffer harm by way of him being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).

Conclusions

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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a Protection visa.

Brendan Darcy
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

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.
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.
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.
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.

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.
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

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.
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.
…

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Procedural Fairness
Natural Justice
Standing
Statutory Construction
Jurisdiction

[2018] AATA 2930

15 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Jurisdiction