1603798 (Refugee)

1603798 (Refugee) [2018] AATA 5139 (21 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603798
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:21 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 21 November 2018 at 2:25pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – Social Democratic Liberal Party – credibility issues – inconsistent evidence – applicant does not have well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424, 438
Migration Regulations 1994 (Cth) Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 24 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 6 October 2015. The relevant law is set out in Annexure A.
Departmental file
The agent submitted documents including protection visa application forms, personal particular forms and a copy of the stamps in his passport, showing the following background information:
·     The applicant was born in [City 1], Fiji. He speaks, reads and writes in both English and Fijian. His religion is Christian, his ethnicity is Fijian and his occupation is [Occupation 1]. He had a single address in [City 1] from his birth until he went to Australia in June 2010.
·     [Details deleted]
·     He only worked in Fiji from January 2009 until June 2010 (as a [Occupation 2]).
·     His first entry to Australia was when he was holding a [temporary] visa valid from [date] July 2010 until [date] August 2010.
·     His second visit was [from] January to April 2012.
·     His third visit was [in] November 2012 holding a [temporary] visa. That same day, he commenced a de facto relationship in [City 2], and he remained in Australia.
·     He and his partner separated on [in] June 2014 in [City 2].
·     He departed Australia [in] December 2014 to go to Fiji to visit his relatives and siblings with the full knowledge of the Fijian authorities, as a [temporary] visa holder after having lodged a partner visa application onshore, returning to Australia [in] January 2015 (his last arrival in Australia).
·     When asked if he had ever had an Australian immigration visa refused or cancelled he responded yes, and said that sponsorship for his partner visa application was withdrawn by his de facto partner due to domestic altercations.
·     He did not work in Australia from his first arrival in June 2010 until November 2012 nor when he was present from July 2015 until (as at the date of) signing his protection visa on 6 October 2015.
·     From November 2012 until July 2015 he worked in [Occupation 3] in Australia.
·     His parents and [siblings] are all in Fiji. He is in contact with his relatives by telephone once a week to see how they are doing, because of the political, social and economic instability in Fiji.
His claims include the following:
·     He left Fiji to come to Australia to live with his then girlfriend to raise a family with her and to settle in Australia away from the political and social instability in Fiji.
·     He has not suffered past harm in Fiji. He was not well informed or politically active when he was in Fiji or when he left Fiji for the first time, so he did not seek help because he did not pose a threat to the government at the time. He did not need to move to another part of Fiji when he lived there because he did not understand much of the political affairs of the country until he moved to Australia.
·     He has always been aware of political persecution of “people like myself who are against the current government treatment of those who speak out against human rights abuses”. Since his arrival in Australia he has become very politically aware of the human rights abuses perpetrated by the military in Fiji on citizens who oppose the government, and the fear instilled in Fijian society for speaking out against the government. The police are subservient to the military and will not protect him if he is in trouble with the government.
·     As he has become very politically aware, this makes him fearful to return to Fiji for fear of his life. He believes he will not be able to sit quietly without voicing his opposition and denounce the government’s military personnel’s aggressive approach in arresting and beating people who stand up against government persecution of its own people.
·     On 29 August 2015, 34 people in Fiji were falsely accused of plotting sedition for speaking out against the government. This made him fearful for his safety.
·     He believes that there is no political freedom or freedom of speech allowed in Fiji that will allow him to exercise his political freedom or political opinion without being persecuted by the government. There is an imminent danger to his life because he will not keep silent if he returns to Fiji.
·     Fiji is a small island with a military-backed government, so intelligence officers can find him no matter where he may relocate. He cannot relocate in Fiji.
Interview with the delegate and decision record
The applicant attended an interview with the delegate on 30 November 2015. The Tribunal has listened to the recording of the interview. The applicant’s claims included the following:
·     He has not been politically persecuted in Fiji.
·     When asked if he is politically active in Australia he said that he followed a [social media] page of the Fiji Forum party, to see what is happening in Fiji. He is also a member of SODELPA but he has not attended any of their meetings nor is he a financial member. The delegate noted there are movements in Australia and asked if he was a member of them and he said no. He has seen that here there is freedom of speech and he believes in democracy and if he goes back he will practise what he has seen here.
·     If he returns, he is afraid of speaking out against the government. When the delegate said that he has not been active in Australia against the current Fiji government, so why did he think he would be vocal if he returns to Fiji, he said that he will do this because he sees the difference now that he is in Australia. The delegate again noted that he had not been active here and asked why he thought he would be vocal on return and he said that he could go join a group because he disagrees with what’s happening in Fiji.
·     Because it is a very small community and everyone knows each other, he will be targeted because of his involvement in social media. His comment on social media was that he disagreed with the government and how it has been run. He knows that there were 39 people imprisoned, not given the due process of law. They were charged with trying to form another government.
·     The delegate asked if he had any evidence of his activity on social media; he was given seven days to produce this.
·     He went back home for a trip to Fiji and when he was there they were drinking kava and he said that he disagreed with some things, and then a few days later his uncle came to him and said that he should be protecting himself and to be careful about what he said.
The delegate refused the application on 24 February 2016. The delegate said he was prepared to accept that the applicant had a profile on [social media] (on the basis of the evidence of one comment posted on [social media]) and that he follows the Fiji Forum page and that he is an unpaid member of SODELPA. It was also accepted that while drinking kava he spoke about Fijian politics in a group in his last holiday to Fiji. Reference was made to country information in the Department of Foreign Affairs and Trade (DFAT) report of 2015, after the 2014 elections, noting that there was a more open environment for people to express their political opinion. The delegate did not accept that the applicant would be subjected to harm as an opposition supporter if he returned to Fiji, noting that he has not taken part in any anti-military or anti-government activities, is not currently involved in any opposition movements aside from being an unpaid member of SODELPA, has not taken part in any protests or rallies in Australia and has not attended any meetings of SODELPA Australia. He gave no evidence of expressing his criticism or being involved in activities countering the government, and since his 2012 arrival in Australia, his only comment was “[comment]” (in November 2014). Concerning the kava incident (February 2015) he raised no claims of harassment, he was not questioned about this directly and nothing untoward happened as a result of his discussions about the government. The delegate noted that sources indicate that the interim military government maintained a watch list and as the applicant was able to depart for Australia, it suggests he was not on the watch list at the time of his departure.
The applicant had indicated in his protection visa application form that he would later provide media excerpts and country reports on Fiji; this did not occur (as noted in the delegate’s decision record).
Certificate: The Tribunal notes that there was a s.438(1) certificate placed on some pages[1] of a Departmental file by the Department. It is appropriate to address the validity of the s.438(1) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in a document or information would be contrary to the public interest must be capable of forming “the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence”. The only reason stated in the certificate is that the folios “contain information relating to an internal working document and business affairs”. That is neither a necessary nor a sufficient basis for public interest immunity. At best, it is only a reason that could form part of the basis for a claim, not the basis, and does not communicate to the Tribunal any reason which meets the description in s.438(1). Since the certificate is not valid it does not trigger the operation of s.438(3)(a) and (b) in relation to how the documents or information can be dealt with, and the Tribunal has proceeded to treat the documents in the usual way as if there was no certificate. The documents are internal administrative documents and are not relevant to the matters in issue in this case. The Tribunal raised the certificate at the hearing, and the applicant did not seek to make submissions in this regard.
[1] Folios 76, 107.
The Tribunal
The applicant provided to the Tribunal an application for review form with no other documents or submissions. The applicant was invited to attend the hearing; his agent indicated in advance that he would not be attending. The applicant attended a hearing on 19 September 2018 to give evidence and present arguments. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision. The applicant’s witness/partner, [name], attended the hearing. It was initially stated that she was attending as a witness; after discussions the applicant said that he wanted her as his support person only. For some of the evidence she was outside the room.
The applicant’s evidence at hearing included the following:
·     His parents and siblings live in [City 1], however his parents stay in their village and do village life. They do not work; they survive through gardening and plantations and fishing. He has [a number of siblings]. His brother is a [Occupation 3]. He is in touch with his siblings and parents every week. They are not involved in any other activities. When he talks with his family, they just talk about everyday life: what is happening with their life, how it is going with the kids and family.
·     After finishing school he worked as a [Occupation 4] and as a [Occupation 2] until he came to Australia. The reason he came back to Australia for his third visit (end 2012) was that he had met a girl. He arrived on a [temporary] visa. He later lodged a partner visa application (in 2013) however she withdrew her sponsorship.
·     Whenever he has returned to Fiji he has not had any problems.
·     The Tribunal asked whether the applicant had a concern about going back to Fiji. He said that life in Fiji after the 2006 takeover is not the same, there is no freedom of speech, no democracy and people can’t talk about the government. The Tribunal put to the applicant that the country information indicates that the situation has improved since the coup, to the extent that it is not how he has described it.[2] In response he said that the government runs the media and the information that comes out of the country. The Tribunal noted however that there are independent reports and the situation is much better since the 2006 coup, especially since the 2014 elections.
·     He said that he is concerned there are no human rights for citizens and they can beat people up and arrest them and they can die. The government doesn’t care about ordinary citizens and can do what it wants. The Tribunal put to the applicant that his family appear on his evidence to be ordinary citizens and nothing has happened to them; nothing happened to him either and he was there for years after the coup. The Tribunal said it does not understand why he thinks something would happen to him now, and asked if he wanted to comment on this and he said no.
·     The Tribunal asked whether he had any other concerns or worries about going back and he said that he has a general concern about elections in November 2018.[3] When asked what caused him concern, he said it is just like 2000. The Tribunal put to him that it is now 2018, the Prime Minister won the elections in a manner considered to be fair in 2014, and it does not understand why the 2018 elections would be like 2000. He said that there are rumours that this government will lose and then they will stage a coup. However, when the Tribunal asked if he thought the government was running a clean campaign, he said no. The Tribunal noted that if it was rigged for the government to win, then ther e would not be a coup. The Tribunal asked how would the election result cause him problems and he did not respond except to say that they would have to wait and see. The Tribunal noted that it could not make a decision on that basis, and it was trying to understand how he thinks he would be affected. The Tribunal asked if he wanted to say anything and he said no.
·     The Tribunal asked what does he actually think would happen to him if he went back to Fiji, and he said that if he expresses his own view or disagrees with what is happening in Fiji he will probably get arrested. He doesn’t agree with what the government is doing. The Tribunal asked what are they doing and he said the way they are running the country. The Tribunal asked how are they running the country and he was silent. The Tribunal prompted him and asked whether he wanted to tell the Tribunal anything about how they are running the country and he said no.
·     The Tribunal asked whether he had ever expressed his own view back in Fiji and he said no. The Tribunal asked why not and he said because he would get arrested.
· The Tribunal then asked if he had ever expressed his view while in Australia and he said yes, on social media. The Tribunal asked if he could explain and he said just commenting on photos on social media. The Tribunal explored this with the applicant, asking if he could tell the Tribunal the last time he did this. He said that he can’t recall when it was. When prompted, he then said that it was about one year ago [2017]. There was a video of someone being beaten up and it was posted on [social media] by a random person he didn’t know. The applicant could not however recall what his comment was. When asked where it was posted, he also could not recall, stating that it was a group, “[name]”, perhaps “[name]”, but he is unsure; it is a group on [social media] that is against the government.
·     The Tribunal asked the applicant whether he had made any other comments on social media and he said no, just that once.
·     The applicant told the Tribunal there was no other reason for the authorities to target him, and there was no other reason for him to fear or have concerns about returning.
·     The Tribunal asked whether it was the case that he had made no comments on his own social media accounts, only on someone else’s and he said yes. The Tribunal put to him that it doesn’t really seem like there would be a reason for the authorities to target him. In response he said he doesn’t know; then he said that his only concern, if he is now sent back, is that from 2016 until now he has a (new) partner and family consisting of [a number of] children that he looks after. They had their first child in 2016, their second child is [age], and she had [children] from a previous marriage. He said that he has made a partner visa application on that basis. The applicant is not married.
·     The applicant was given an opportunity to give further evidence but he said that he had nothing further to say.
[2] Country information is referred to later.
[3] The Tribunal notes that the elections took place on 14 November 2018. The Fiji First Party retained power and although the opposition were unhappy with the results, “International observers concluded on Friday, when releasing their interim report, that the electoral processes ‘to date have been transparent and credible’ and that the people of Fiji were able to ‘vote freely’. The Multinational Observer Group, co-led by Australia, congratulated the people of Fiji for taking a ‘significant step’ towards embedding democracy” ( The applicant did not provide any country information either before or after the hearing in relation to the elections.
While noting that it had not made up its mind, the Tribunal put to the applicant concerns with the credibility of his claims, as well as country information sourced from the relevant DFAT Report on conditions in Fiji.
Further relevant evidence and information put to the applicant pursuant to s.424AA of the Act are set out below.
FINDINGS AND REASONS
Country of reference
The applicant produced his passport to the Tribunal. The Tribunal finds that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Fiji.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence. The Tribunal’s concerns are set out below.
Firstly, the Tribunal was concerned that the applicant provided inconsistent evidence as to his previous political expression in Fiji. In this regard, he told the delegate at interview on 30 November 2015 that when he returned to Fiji in 2015 to have a family holiday, he had drunk kava in a group and discussed his opinions on the current situation in Fiji. He was later told by his uncle to be careful about expressing his opinions in public which led to people in the group discussing his disagreement with the government. However, when asked by the Tribunal about whether he had previously expressed his views in Fiji, he claimed that he had not done so because he had been fearful that if he did so he would be arrested. The Tribunal put this inconsistency to the applicant pursuant to s.424AA of the Act, noting that his claim to have expressed his political opinion was undermined by his evidence to the Tribunal, suggesting that the claim was not true, that he had not discussed his political views in Fiji and he does not seek to discuss political views. In response he said “no comment”. The Tribunal considers that his evidence and his failure to comment undermine his credibility and his claims relating to his political expression or claimed fear to do so.
Secondly, the Tribunal was concerned that the applicant claimed at hearing that he could not recall representations he had made in previous proceedings where he was attempting to remain in Australia. According to the Migration Review Tribunal (MRT) decision record of 17 September 2015, the applicant made a claim of family violence against his former partner (namely that she had committed family violence against him shortly before he appeared at his hearing before the MRT). However, when the Tribunal in the current hearing asked him about those proceedings, he told the Tribunal that his relationship with that partner had broken down when he was at the MRT hearing, but he maintained his claim for a partner visa at that hearing. When the Tribunal asked what he had told the MRT in order to maintain the application, he claimed that he could not recall what he claimed to the MRT at the hearing.
The Tribunal put this information to the applicant pursuant to s.424AA of the Act, suggesting that he would recall that he had accused his former partner of abusing him which was the reason why (after the relationship had broken down) he had maintained an ongoing application for review against a decision to refuse to grant his partner visa application. The Tribunal put to the applicant that his inability to recall this undermines the claim that he made to the MRT. The applicant said that he did not seek to comment. The Tribunal was concerned that his evidence and his failure to comment undermine his credibility and indicate that he is prepared to make untrue claims in order to remain in Australia.
Thirdly, the Tribunal had a concern about the applicant’s claims as to his political involvement, in particular his claims of comments on social media.
In this regard, the applicant told the delegate at interview on 30 November 2015 that he had made comments on social media especially as some people had been falsely imprisoned in Nadroga Navosa province after they were charged with sedition. A further instance of commenting on social media was referred to, when he provided to the delegate after the interview, one comment on [social media] where he wrote “[comment]” in response to an article [details deleted] in November 2014.
Although these were his claims to the delegate in 2015, this was inconsistent with his claim to the Tribunal that he had only made one comment on social media in about 2017 (thus, after the delegate’s interview) where he commented on a video of people being beaten up. When asked, however, he couldn’t recall that comment. The Tribunal put to the applicant pursuant to s.424AA of the Act that his different evidence as to his social media comments in Australia undermined his claims. The Tribunal would think that if he had been making political comments on social media (which were done for political reasons and which would place him in danger), he would have given fairly consistent evidence in this regard. The Tribunal put its concern to the applicant that this indicated that he was not politically active, and that even if he had previously made one or two comments, he did not consider this to be significant to the extent that the government would be aware of, or target, him. The applicant in response said “no comment”. The Tribunal considers that his evidence and his failure to comment undermine his credibility and his claims to be politically aware and active.
Further, the Tribunal was concerned generally about his evidence at hearing concerning his claimed political activism. Initially at the hearing, when asked what he had been doing in Australia, he said only work, playing rugby, nothing else. He did not mention any political involvement or activities, which the Tribunal would expect he would mention if he had been genuinely engaging in activities which would lead to him requiring protection.
Later in the hearing, it was his claim that his political expression was a single comment which he could not recall the details of.
The Tribunal noted at hearing its concerns that his claims of being a political activist who would seek to express himself politically may not be true, and put to the applicant that it did not appear that he was the type of person claimed, noting for example his claim at hearing that his only claimed political expression in Australia (where it was safe to do so, unlike his claim about it being unsafe to do so in Fiji) was to make one comment on social media one year previously (having been here for many years), and it would seem unlikely that anyone would seek to pursue him for such a comment.
Further, the Tribunal noted that the applicant speaks to his family regularly and he did not tell the Tribunal that anyone in Fiji has shown an adverse interest in him, or even made inquiries about him or his activities. When the Tribunal put to the applicant that it did not appear that on his claims and having regard to the country situation, he faces a real chance of serious harm or a real risk of significant harm, he said that he had no comment. The Tribunal was also concerned with the applicant’s written claims where he characterised himself as an activist against the current government in that he speaks out against human rights abuses, and that if he returns he will not be able to restrain from voicing his opposition and denouncing the government. The Tribunal noted at hearing that he could not be considered to be such an activist in Australia or to have taken such steps here. The Tribunal considers that his oral evidence undermines his written claims, which seek to elevate the applicant’s political motivations and activities higher than he himself claimed to the Tribunal, and his claims generally relating to political involvement and fearing harm. Further, the Tribunal considers that even if his evidence at hearing was accepted as true, this did not appear to indicate that he was a political activist or a person interested in speaking out in Fiji. The Tribunal considers that the above undermines his credibility and claims.
Fourthly, the Tribunal was concerned that the applicant gave inconsistent evidence about his involvement in political organisations. While he told the delegate at interview that he was a non-financial member of SODELPA, when the Tribunal asked whether he had ever been a member of a political organisation, he said no. The Tribunal put this to the applicant under s.424AA of the Act, noting that this inconsistency undermined his claims to have been in the past, or currently, politically involved. In response he said “no comment”. The Tribunal considers that his evidence and his failure to comment undermine his credibility and his claims.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth when claiming political activism, political intentions or awareness or desires or fear of harm.
Other matters
While the Tribunal accepts that a person can be nervous when giving evidence, the Tribunal does not consider that this can explain the difficulties with the applicant’s claims and evidence.
While the Tribunal accepts that the applicant was able to give some examples of difficulties arising from the coup and the Bainimarama-led government in Fiji, the Tribunal is not prepared to find that this supports his claims of interest in politics and country conditions or his claimed fears or concerns in that regard.
Credibility summary
Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth when claiming to hold fears upon which he has based his protection claims.
Findings on the applicant’s claims
On the basis of the adverse credibility finding, the Tribunal does not accept the applicant’s claims relating to political matters. It does not accept that the applicant considered that he needed to escape instability or any concerns in Fiji. The Tribunal does not accept the applicant’s claim that he expressed political views against the government in a group discussion and was warned against this by an uncle. It does not accept that he expressed any anti-government views in Fiji, or that he restrained himself from doing so out of fear, or that he had an interest in doing so in Fiji. It also does not accept that he has any desire, whether in Australia or Fiji, to speak out politically or be politically active, or that he holds views adverse to the government. The Tribunal does not accept that the applicant was a member of SODELPA.
The Tribunal is not prepared to accept the applicant’s changing assertions of social media activity or any other activity which could be seen as adverse other than the evidence referred to by the delegate in the decision record of the applicant making the comment “[comment]” on a [social media] forum post back in 2014. The Tribunal does not however accept that the applicant has political motivations, noting that he has had plenty of opportunity to be politically active and involved in Australia, yet he has not done so. Given the applicant does not have such motivation, the Tribunal considers it likely that the comment he made may have arisen from the encouragement or influence of friends, on a one-off basis, but given that the applicant himself told the Tribunal that his only concern about returning to Fiji is his family in Australia, and that he forgot that he had even made this comment when giving evidence at hearing, the Tribunal considers that the applicant himself did not consider this significant or a source of any possible harm to himself. The Tribunal is not prepared to ascribe a political motivation to the comment. The Tribunal does not consider that there is a real chance or real risk that the applicant will seek to express any political views in any manner, for reason of a lack of interest.
The Tribunal is also not prepared to accept that this comment has led or could lead to the applicant facing a real chance of serious harm or a real risk of significant harm at the hands of the authorities in Fiji (or from any other source). The Tribunal recalls that it was the applicant’s evidence that he had returned to Fiji after this comment had been made (in 2015), and that he had no trouble in Fiji. Further, as noted above, the applicant was given an opportunity at hearing to explain why he would think any social media comment he had made would lead to a real chance or real risk of him being targeted or harmed and he had no comment. Further, on the evidence before it, and considering the country information[4] from the DFAT report of 27 September 2017, the Tribunal is not prepared to accept that there is a real chance or a real risk of this single comment coming to the adverse attention of the authorities leading to the applicant facing a real chance of serious harm or a real risk of significant harm:
·     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;
·     Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections;
·     Overall, DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.[5]
[4] Referred to in the delegate’s decision record, p7, as DFAT reporting in 2015 that the Fijian government had continued to monitor, harass and intimidate senior political opponents, human rights activists, trade union leaders and journalists; their advice did not indicate that low-level campaign supporters of opposition parties faced a real chance of being targeted for serious harm.
[5] 3.41, 3.46, 3.56, DFAT Report, 27 September 2017.
Taking into account his lack of political involvement previously in Fiji, and accepting a one-off comment made in Australia but that otherwise he has had no political involvement in Australia and has no interest in political matters, the Tribunal is not prepared to accept that the applicant holds an anti-government view. The Tribunal is not satisfied that there is a real chance or real risk of the applicant being imputed by the Fijian authorities of having been involved with political matters in Australia, or of him becoming involved in any way in political matters in Fiji in the future (not because of any fear, but because of a lack of interest) or of being imputed with an adverse or anti-government political opinion in the future.
Although it was the applicant’s written claims that he was in regular contact with his family because of the political, social and economic instability, this was not his evidence to the Tribunal. While it accepts that there are people targeted by the military and government who may face harm, the Tribunal does not accept that the applicant has such a profile, and that generally, it did not appear that he would be of interest to the authorities such that he would face a real chance of serious harm or real risk of significant harm.
The Tribunal does not accept that the applicant has concerns about the situation generally in Fiji to the extent that he is in contact with his family for that reason. The applicant was unable to provide any specific detail as to why he would face a real chance of serious harm or a real risk of significant harm (for example, not offering any comment when the Tribunal asked him to explain why he thinks something would happen to him). He also did not produce any country information in support of his assertion that the elections may lead to him suffering a real chance of serious harm or a real risk of significant harm, and when asked to discuss this in detail, he was unable to explain how the elections would affect him in such a manner. Although he later claimed that he would be arrested if he expressed a political view, the Tribunal has found that he does not and will not seek to express such a view. As put to the applicant at hearing, if it did not accept his claims to have the political involvement or views claimed, it did not appear that, having regard to the country information as set out in the DFAT report, that he faces a real chance of serious harm or a real risk of significant harm for any reason. The applicant said that he had no comment.[6] The Tribunal accepts that Fiji is generally stable and secure; the 2006 coup was non-violent and did not affect the country’s overall security; and elections in 2014 were calm and free of violence (DFAT Report paragraph 2.48), and there is no evidence before the Tribunal suggesting that the 2018 election results would lead to the applicant facing a real chance of serious harm or a real risk of significant harm.
[6] DFAT Report, including: “5.1 Fiji has had a long history of functional democratic rule. However, the last 30 years have been peppered with periods of political instability – including four coups, the imposition of martial law and multiple instances of the Constitution being abrogated. 5.4: As of late 2014, following the elections, and as a result of the return to constitutional government, the rule of law in Fiji has generally improved in comparison to the situation prior to the elections. For most ordinary citizens, the police and military are effective and impartial; 2.43: Security situation: Fiji is generally stable and secure. The 2006 coup did not affect the country’s overall crime rate. Elections in 2014 were calm and free of violence. Security services, including police and military, are well resourced and maintain effective control of the country.”
The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason including the general security situation or his profile as a man who came to Australia, had partners, stayed, made one comment on social media in 2014, and would be returning to Fiji with no desire to speak out against the government. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm from the authorities or as a result of the political situation, the recent elections, human rights concerns or the general security situation in Fiji.
The Tribunal discussed with the applicant the issue of his partner and children, and separation from them if he returns to Fiji. The Tribunal noted the definitions of refugee and complementary protection. It noted that his circumstances did not appear to lead to a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or particular social group. He did not disagree. Concerning complementary protection, the Tribunal noted that it did not appear that he would suffer any harm that was intentionally inflicted or that he would otherwise fall within the relevant definition. The Tribunal asked the applicant if he wished to comment and he said that his partner is an Australian citizen and he is just worried about who will look after her and the children in Australia. The Tribunal suggested that he seek legal advice in this regard. The Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for one or more of the five reasons or that he faces a real risk of significant harm as defined (death penalty, arbitrary deprivation of life, intentionally inflicted torture, cruel or inhuman or degrading treatment or punishment) by returning to Fiji as a result of separation from his partner and children.

The Tribunal finds that the applicant did not make any claim that he faced harm on the basis of his religion as a Christian. Further, although in his written claims he referred to “economic instability” in Fiji, he did not suggest that he was unable to work in Fiji when giving his oral evidence nor that he faced a real chance of serious harm or a real risk of significant harm on the basis of economic or employment issues, and the Tribunal is not satisfied that he faces a real chance of serious harm or a real risk of significant harm for any of these reasons.
The Tribunal is not satisfied that the applicant came to Australia to escape any harm or adverse interest in Fiji nor does it accept that there is a real chance or real risk of this upon return. The Tribunal is not satisfied that the applicant faces a real chance or real risk of requiring access to state protection.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, other than those claims accepted above. The Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him or on his behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicant has experienced any adverse interest as claimed or that he has the political profile or opinion as claimed. While accepting a one-off comment on social media in 2014, the Tribunal is not satisfied that there is a real risk that this has or will come to the authorities’ attention, nor is it satisfied that the applicant seeks to or would like to engage in expression of political views. The Tribunal has found that the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The applicant has worked in Fiji and in Australia and does not suggest that he will not be able to work in Fiji. While the Tribunal accepts that he faces being separated from his partner and children, these circumstances do not fall within the definition of significant harm.
The Tribunal is not satisfied that the applicant faces a real risk of experiencing significant harm for any reason.
On the evidence presently before it, 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 a receiving country, in this case Fiji, there is a real risk that he will suffer significant harm for the purposes of s.36(2)(aa) of the Act. 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) of the Act 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.
Christine Cody

Member
ANNEXURE A - 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 below.
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 below.
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.
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.
…
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.
…
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.
…
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.
..
36 Protection 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 5139

21 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction