1605469 (Refugee)

[2018] AATA 4589

1605469 (Refugee) [2018] AATA 4589 (4 October 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605469

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:4 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 October 2018 at 6:20pm

CATCHWORDS

REFUGEE – protection visa – Fiji – particular social group – person with a past criminal history – failed asylum seeker – harassed and assaulted by police and military – delay in departing Fiji – ongoing medical conditions – cost of medical treatment – credibility issues – false claims presented in original application – new protection claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 437, 438, 499, 501

Migration Regulations 1994 (Cth), Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are a married couple from Fiji, a man in his late [age bracket deleted] and [an age] year old woman.

2. The first-named applicant (‘the applicant’ or ‘the applicant husband’) first visited Australia in July 2005. He most recently entered on 25 September 2015, as the holder of a [temporary] visa. The second-named applicant (‘the applicant wife’) arrived in Australia on 15 October 2015, holding the same visa. The applicants applied for Protection (Class XA) visas on 21 December 2015. On 1 April 2016, the Minister’s delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicants attended a Tribunal hearing on 20 September 2018.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

6. In brief, the applicant husband claims that the local police seriously assaulted him in the period to about 2000, when he was involved in criminal activities. They continued to target and mistreat him even after he stopped his criminal activities and worked as a preacher. He fears this will resume if he returns to Fiji. The Tribunal accepts that he suffered some injuries prior to 2000, at the hands of the police or in other violent activity, and that the police continued to question him for some years afterwards. However, it does not accept that he has a genuine or well-founded fear of persecution or significant harm at the hands of the police or others, in the future.

7. The applicant has also raised claims that the Fiji authorities restrict his ability to practice as an independent preacher; that he will be unable to afford necessary medications on his return to Fiji; and that the local authorities may punish him if they suspect that he sought asylum in Australia (and made claims based on their actions). The Tribunal finds that Australia does not have protection obligations with respect to the applicants arising from any of these circumstances.

8. The applicants made a range of earlier claims to the Department, based on religion, which they have now withdrawn.

   Criteria for a protection visa

9. The issue in this case is whether either of the applicants meets the refugee criterion, and if not, whether one or more is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

10. The applicant husband currently claims that the Fiji military and police have harassed and assaulted him in the past, ‘due to his profile as a person with a past criminal history’. He fears that they will again target him if he returns to Fiji, and that he faces the prospect of harm amounting to persecution or significant harm.

11. In his original application and at the Department interview, the applicant claimed to fear harm from the Fiji military and police, on the grounds of his religion. He claimed that, as [a Church 1] pastor who administered to the Indo-Fijian community, the authorities assaulted and threatened him on three occasions in the past, and he fears that they will harm him if he returns to Fiji. The applicant wife presented her own protection claims, essentially reflecting those of her husband. The applicants have now withdrawn these claims, although the applicant husband voiced some concerns about the extent of religious freedom in Fiji.

12. The applicants expressed some other concerns about their prospects if they return to Fiji, relating to their status as asylum seekers and the poor affordability in Fiji of medications that the applicant husband requires.

    Background

13. The first-named applicant is a [age] year old man from [Town 1]. He is an ethnic Fijian, whose languages are Fijian and English, and spoken ‘Indian’ (Hindi). He was raised in [Church 2], and in 1996 joined [Church 1].

14. The applicant attended school in [Town 1] and later [Town 2], up to Year 10, in [year]. He gave no details of subsequent employment on his application form, but at hearing he said that he did casual labour and other itinerant work, and had an unsettled life (see below for details).

15. From about 2000 (September 2001, according to his written application), he was with [Church 1], as a full-time volunteer Christian worker. He said that this was not formally paid work, but he lived with his parents (his stepfather and his mother); the church covered basic expenses; and parishioners made donations. At hearing, the applicant revealed that in 2014, [Church 1] appointed a full-time (native) Hindi-speaking pastor to his position, and from that time, he worked as an independent evangelist. Later during the discussion (when explaining why he had not left Fiji earlier), he added that in late  2014, he set up a non-affiliated English-language church in [Town 3], [Church 3]. This met in a community hall on Sundays, and received support from a church in [an Australian city]. This church folded after a few  months, due to financial problems.

16. The applicant’s parents are deceased. He has [several siblings] on his father’s side, and [several siblings] on his mother’s side. They live locally, and he maintains contact with them.

17. In his protection visa application, the applicant stated that he was convicted of [a crime] in April 1989, and that he is subject to an investigation for [another incident]. The pre-hearing submission of 20 September 2018 flagged that the applicant has a more substantial criminal history than previously advised, and that this now forms the basis of his protection claims.  

18. The second-named applicant is his wife, [an age] year old woman, also from [Town 1]. The couple married in [Town 1] in November 2005, having met at a church conference.

19. The applicant wife’s family moved from [Town 1] to [Town 4] in 1997. She attended school to Year 12, but was unable to continue her education. Her parents are now retired; her father serves [in a church]. She has [several] siblings.

20. The applicant husband holds a Fiji passport issued in [2013]. He undertook prior travel in Australia in July 2005 and July 2007, for [work]. The applicant wife holds a Fiji passport issued in [2012]. The applicants have visited [another country] together.

21. The applicants obtained [temporary] visas [in] November 2014. The applicant husband arrived in Australia [in] September 2015, and the applicant wife arrived [in] October 2015. As noted above, they applied for protection visas on 21 December 2015.   

    Evidence

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

    §  The protection visa application form, lodged on 21 December 2015. Initially, only the first-named applicant completed Form 866C containing his own claims for protection. On 1 February 2016, the applicant wife completed a Form 866C setting out her claims for protection; these are based on, and echo, her husband’s claims as stated at that time.

    §  Identity documents: - photocopies of the Fiji passports of the applicant (issued [date] 2013, and a partial copy of a previous one issued on [date] 2003), and of the applicant wife (issued [date] 2012); copies of the applicant’s birth certificates; a copy of their marriage certificate; a copy of the applicant’s [State 1] drivers licence; various certificates relating to the applicant’s academic and religious activities; and a general character reference from [a religious organisation].

    §  The applicant attended a Protection visa interview (‘Department interview’) on 23 February 2016, a recording of which is on the Department file.

    §  The Protection visa decision record (‘delegate’s decision’) of 1 April 2016.

    §  The review application of 20 April 2016 has attached to it a copy of the delegate’s decision, but no further information or claims.

23. The Tribunal received a pre-hearing submission on 20 September 2018, just prior to the hearing. This advised that the applicant no longer wishes to pursue his original claims (and, by implication, the applicant wife no longer wishes to present associated claims). Attached were full copies of recent reports from the Department of Foreign Affairs and Trade (DFAT)[1] and Amnesty International[2], and various articles reporting police brutality in Fiji.

    [1] Department of Foreign Affairs and Trade: DFAT Country Information Report – Fiji, 27 September 2017.

    [2] Amnesty International: Beating Justice – How Fiji’s Security Forces Get Away with Torture, June 26, 2016,

24. The applicants appeared before the Tribunal on 20 September 2018, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages, via telephone. However, the applicants speak English, and gave much of their evidence in English. 

25. Following the hearing, the Tribunal contacted the representative to enquire about references in the pre-hearing submission to the applicant’s ‘statutory declaration’, and medical and other documents. On 27 September 2018, the Tribunal received the following relevant materials :

    §  A statutory declaration from the applicant husband, covering issues discussed at hearing.

    §  Various medical reports relating to the applicant’s health.

26. The applicants were represented by [Ms A] of [a Law firm], who accompanied them to the hearing, and made written and oral submissions.

    Non-disclosure certificate: s.438 of the Act

27. A preliminary issue concerns a certificate from the delegate restricting disclosure of certain information in the file, pursuant to s.438 of the Act. The delegate certified that the disclosure of information in two folios – 58 and 147 – would be contrary to the public interest because they ‘contain information relating to an internal working document and business affairs’.

28. Folio 58 is a completed Department pro forma entitled ‘Identification test: protection visa applicants’. Folio 147 is a ‘disclosure decision checklist’ in which a Department officer stated that the Department file held no documents or information subject to s.437 or s.438. 

29. In considering the validity of these certificates the Tribunal has taken into account recent case law on the issue. In MZAFZ v MIBP,[3]  the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were ‘internal working documents’. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[4]

    [3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

    [4] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

30. The Tribunal is of the view that the s.438 certificate relating to folios 58 and 147 is not valid, as it does not properly identify a basis for public interest immunity. Furthermore, the Tribunal considers the material in these folios to be irrelevant to the conduct of the review, as they do not concern the substance of the applicant’s protection claims or the Tribunal’s procedures.

31. The Tribunal informed the applicants of the existence of the certificate; its view that it was not a valid certificate; and its view that the information in the folios was not relevant. The representative agreed with these points.

    Receiving country

32. The applicants claim to be nationals of Fiji. They have provided Fiji passports and other identity documents; they speak Fijian; and they have shown a thorough familiarity with that country. The Tribunal is satisfied that they are nationals of Fiji. Accordingly, Fiji is the receiving country for the purpose of assessing their claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicants’ claims and evidence

33. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicants’ evidence as a whole. The Tribunal notes that, although the applicant husband has experience as a pastor and preacher, he did not always orally present his protection claims in a logical or comprehensive manner. It is satisfied, however, that there was ample opportunity at hearing, with the assistance of the applicant wife and the applicants’ representative, to clarify the key points of his claims and evidence.

34. As discussed at hearing, the applicants’ presentation of false claims in their original application and at the Department interview raises concerns about their credibility overall. The applicants and the representative explained that the applicant husband was nervous and afraid of revealing to the Department the real reason for the Fiji authorities’ adverse interest in him, namely his criminal record. By way of background, they explained that, although he had been granted visas to visit Australia previously, he was worried by the delay in processing their Australian [temporary] visa applications on this occasion and by the request for a police clearance certificate. The applicant added that he was, in fact, surprised that he was given a visa. He also wrote in his statutory declaration that Australian Border Force officials questioned him on his arrival in Australia, and he had been worried that they would deny him entry into the country. The applicant suggested that these concerns weighed heavily in his decision to downplay his criminal record, and instead present false claims for protection, based on religion.

35. The applicant’s representative told the Tribunal that she had counselled the applicants that the applicant husband’s criminal record, coupled with his presentation of untruthful claims to the Department, might preclude him from obtaining a protection on s.501 character grounds., irrespective of the outcome of the review application. She noted the applicants’ determination to proceed with the application even after this advice, and invited the Tribunal to take this into account when considering the genuineness of the husband’s stated fears.

36. The Tribunal accepts that the applicant was worried that his criminal record might result in him being denied entry into Australia, and that he was also worried that it might also jeopardise his prospects of obtaining permanent residency. Nonetheless, his willingness to present false claims after his arrival in Australia, including at the Department interview, is significant. It raises broad questions about his credibility as a whole, which the Tribunal takes into account in the assessment below.

37. The applicants’ conduct in Fiji, particularly their continued residence in [Town 1], and the significant delay between the grant of their Australian visas and their departures from Fiji, add to the Tribunal’s doubts about the truthfulness of their claims and their need for protection. The applicant husband left Fiji more than ten months after the visa grant. The applicant wife followed a few weeks later. The applicant told the Tribunal that he had been waiting for the right time to travel. He had to raise the funds for travel, and in late 2014, he was trying to set up a new church in [Town 1]. In the absence of any evidence to show that the applicants were seeking to raise or borrow funds for their travel, or at least move away from [Town 1] (which the applicant wife did only a few months later), the Tribunal finds these explanations unpersuasive. The applicants’ delayed departures from Fiji reinforce concerns about their need for protection generally, in [Town 1] and in Fiji as a whole.

    The applicant’s criminal record

38. As noted above, in his original application, the applicant wrote that he has a prior conviction going back to April 1989 for [details deleted]. He also wrote that he is subject to a criminal investigation relating to [another incident], implying that this is an ongoing matter (although there is no further evidence to indicate that is the case).

39. The applicant’s criminal record now forms the centrepiece of his current protection claims. As noted above, he claimed that he did not reveal the full extent of his criminal record in his original application, due to nervousness. In his statutory declaration, he stated that he had to attend an interview in Fiji for his Australian visa in August or September 2014, and was left with the impression that the Australian officer would deny him a visa on character grounds. He was therefore relieved that the Fiji Police had issued a clearance certificate, and that he had obtained a visa. Basically, he suggested that these factors influenced his decision to play down his past convictions during his application for a protection visa, to avoid complications and any more probing enquiries.

40. At hearing, he explained that after leaving school at the age of about 15 or 16, in [year], he hung around with other young men and worked casually, usually as a labourer. He was the black sheep of the family. From about 1986 until 2000, he had trouble with the law, for various offences such as [details deleted]. Although he was ‘saved’ in 1996 (that is, he joined [Church 1]), he was imprisoned again for part of 1997-1998. The applicant claimed that his most recent conviction was in 1998, in relation to 28 offences relating to [specific charges], although he added in his statutory declaration that he was not involved in most of the incidents.

41. The Tribunal accepts on the limited available material that the applicant engaged in criminal activities from about 1986 to 1999; that he has numerous convictions; and that he spent a total of about three years in prison.

    Police mistreatment of the applicant

    Prior to 2000

42. The applicant claimed that he experienced police brutality while in custody, for instance during investigations, detentions and periods of imprisonment. Of particular note was a police assault in1987, after an arrest and detention, when they [severely injured Body Part A]. At hearing, he demonstrated that he still has some malfunction with [Body Part A]. He said, both at hearing and in his statutory declaration, that he needed a long period to recover from the [injury], and that his recovery was not satisfactory (in terms of [function] and claimed intermittent bleeding). Not surprisingly given the passage of time, the applicant did not have medical reports or other documentary evidence to support these allegations.

43. In the brief comments on his original application, the applicant referred to a physical scar on [his body], which was allegedly the result of a beating that soldiers and police inflicted on him. At the Department interview, he said that this injury had occurred in 1987. He claimed that the military and police [injured his Body Part A] on another occasion, perhaps in 2001 (hence, after he had ceased his criminal activities, and become a pastor). The Tribunal observed that the applicant has a distinctive vertical scar on [his body]. It is not possible to determine when or in what circumstances this injury occurred, or whether it is related to the applicant’s past [Body Part A injury]. In any event, in light of the other findings in this decision, the Tribunal considers it is not necessary to determine conclusively when and how the scarring arose.

1. The applicant submitted copies of several fairly recent articles alleging that the Fiji security forces physically abused suspects. These included video footage of police brutality in 2013 that drew international condemnation from the UN Office of the High Commissioner for Human Rights and national governments; reports that the police and military have bound and assaulted suspects; and (as noted in the latest DFAT report), deaths in custody believed to have resulted from police assaults. These are broadly consistent with the applicant’s own claims, although it is worth noting that independent reporting tends to focus more on police corruption and competence than actual physical violence.

2. It is difficult to reach firm conclusions about the applicant’s own past experiences during this period. First, by his own evidence, he was engaged in [criminal violence]. This suggests that he may also have suffered physical injuries in other circumstances, such as during the commission of crimes or interacting with other young men. Second, there is no persuasive evidence linking the applicant’s past [Body Part A injury] (or any other injury) with any particular incident or period. The medical evidence submitted post-hearing does not identify any injuries going back to this period. [Sentence deleted].

3. In light of these concerns, the Tribunal accepts that the applicant suffered a [Body Part A injury] and possibly other injuries in the period before 2000. It accepts, on the basis that it is plausible, that he was subject to some police abuses, including physical violence, during his periods in custody and prison. Given the violent nature of the applicant’s criminal activities, the Tribunal is unable to determine whether any individual injuries – such as the [Body Part A injury], or any [other] problems that persist – are attributable to police abuses, fighting with other men (such as gang members or prison inmates) or the commission of criminal acts.   

   From 2000

4. The applicant claimed, for the first time before the Tribunal, that in the period from 2000 until his latest departure from Fiji in September 2015, the Fiji police – that is, the authorities in [Town 1] - continued to target him because of his past criminal record. He feels that they are ‘watching’ him. When investigating local crimes, they would come by his home, take him into the police station; and interrogate him, sometimes in an abusive or disrespectful manner. He told the Tribunal that the police would typically detain him for about four hours, and sometimes require him to participate in a police line-up.

5. This has occurred ‘8 or 10 times in the last several years’, according to his statutory declaration. At hearing, he indicated that there had been 8 or 10 occasions not in the ‘last several years’, but rather in total (hence, over a period of some 15 years).

6. In his statutory declaration, the applicant wrote that during the course of these detentions, the police have hit him with truncheons; ‘punched and brutalised’ him; and injured his side, ribs and legs. These were broad statements, not linked to any particular incident. He also mentioned at hearing that the police used to come to his place, badmouth him and undermine his reputation as an ordained minister; and take him out to the bush for further interrogations. The applicant’s representative highlighted the last claim, expressing her concern that the applicant would be particularly vulnerable to physical abuse in secluded locations like the bush.

7. The Tribunal accepts, on the basis that it is plausible though far from certain, that in the period from 2000 the [Town 1] police sometimes brought the applicant to the station to help with their enquiries in relation to local crimes (such as [details deleted]), and had him participate in police line-ups. However, the Tribunal has significant concerns about the applicant’s claim that the police had a sustained adverse interest in him, which resulted in repeated instances of physical harm and psychological fear:

   §  In its view, the police interest in him as a potential suspect or person able to assist them would have been greater in the years immediately after his final release from prison. However, it is difficult to imagine that he remained of adverse interest to the police over time. He had established himself as [a Church 1] pastor, and was obviously no longer in the milieu of young, unsettled men involved in criminal activities.

   §  The applicant visited Australia in 2005 and 2006, [for work]. Although he may have had church and/or family commitments that drew him back to Fiji, his return there does not suggest that he had an ongoing fear of persecution or significant harm in [Town 1] or Fiji.

   §  The applicant’s claims relate to the conduct of the [Town 1] police, to whom he is known, presumably both as a past offender and also as [a Church 1] pastor (or similar evangelist). The Tribunal explored with him whether he had considered moving to [Town 4] or another part of Fiji, in order to avoid any unreasonable targeting. The fact that the applicant wife’s family had lived in [Town 4] since 1997 suggested this was a real option. It was difficult to engage the applicant with this issue. He noted that in 2014, after losing his position as a pastor at [Church 4] in [Town 1], he set up his own English-language church, and was committed to getting it up and running. Also, he said that the applicant wife moved to [Town 4] some months before he did. Asked why he did not move there sooner – if he felt that he was in danger – the applicant replied equivocally that they thought it best that his wife move there first. The Tribunal acknowledges that the applicant wife’s family lived in [Town 4], and that it might make sense for her to visit prior to the applicant’s move there. However, in its view, the applicant’s continued stay in [Town 1] – when this did not appear absolutely necessary – adds to its doubts that the police or other authorities were harassing him physically or psychologically.

   §  Finally, the applicants obtained their Australian visas in November 2014, but the applicant husband did not depart Fiji until September 2015 (more than ten months after the visa grant) and the applicant wife departed a further month later. The applicant explained that they had applied for the visas in about April 2014, and by the time of the visa grant, the conference had already taken place. He also explained that they had to raise money for their travel to Australia. The Tribunal accepts that these were factors that influenced the timing of the applicants’ departure. However, the applicant’s continued stay in [Town 1] (discussed above), even after the visa grant, undermines his claim to fear persecution and/or significant harm there. Also, the applicants have provided no detail or supporting evidence to indicate that they were even trying to depart sooner, in response to feared harm.

8. Taking the above concerns into account, the Tribunal does not accept that the applicant husband was subject to ongoing police (or other security force) surveillance, harassment, periodic detention, interrogation, physical abuse or psychological pressure; or that he lived in constant fear of such mistreatment. The Tribunal accepts that, particularly in the five to ten year period after his last conviction and imprisonment, the [Town 1] police sometimes questioned the applicant, and had him participate in police line-ups. It finds that these took place at the police station. The Tribunal does not accept that the police took him to [Town 5] or other secluded locations, which are typically associated with violent, illegal assaults. In sum, the Tribunal does not accept that the applicant suffered physical, psychological or other harm in the period after 2000 which, individually or cumulatively, involved persecution or significant harm.

   Claims based on religion

9. In his original application, the applicant claimed that the Fiji police and military targeted him on the basis of his religion, and that they physically assaulted him on three occasions, including one that left a large still-visible scar on [his body]. It was difficult to discern what particular aspect of the applicant’s religion triggered the authorities’ adverse interest in him, but he intimated that the Fijian authorities took an adverse interest in him because he had provided religious services to Indo-Fijians, political opponents of the government and separatists.

10. At the Department interview, he gave details about three incidents. Once, in about 1987, the Fiji military and police beat him up badly after he [was associated with] a religious service for politicians [during] the Rabuka coup. It took him a full year to recover from the injuries. In about mid-2001, the military and police arrested him at his family home, took him to a secluded location and assaulted him, [injuring his Body Part A]. His recovery took several years. Sometime during 2014 or 2015, the military and police beat both applicants after the applicant husband had travelled to [the] location of a separatist [movement] to conduct a religious service.

11. The applicants indicated that they now seek protection on the basis of the applicant’s criminal record, and its consequences, and not on the basis of the applicant’s religious work. The submission of 20 September 2018 states that the applicant ‘does not want to further pursue past claims to have been assaulted for reasons previously stated’; and that the applicant wife has no further claims. After discussion of this at hearing, the Tribunal is satisfied and finds that the applicant has resiled from these claims. It also finds that the applicant wife has withdrawn her associated claims, and that she in fact is presenting no claims of her own for protection.

12. The Tribunal notes that, although the applicant has withdrawn his claims based on religion, he adheres to some elements of his earlier claims, such as the police interest in him, their physical abuse, and the injuries that he has suffered (although the timing, the circumstances in which they occurred, and the reasons, now differ).

13. At hearing, the applicant touched on several aspects of religion, which the Tribunal now addresses as potential  residual claims:

    §  He claimed that, during his encounters with the police after 2000, they used to intimidate him by saying that he is a ‘lying bastard’ and not a man of God. The Tribunal has accepted above that, following his substantial period of criminal activity, the [Town 1] police used to investigate him for local crimes, sometimes in an aggressive manner. It considers it possible that they were sceptical, dismissive or verbally abusive when the applicant tried to persuade them that he is now religious, and has changed his ways. The Tribunal is not satisfied on the available evidence that the police conduct during such investigations – including verbal abuse – involved persecution or significant harm (including through psychological harm), or that there was any persecution for the reason of religion, even though they might have been disrespectful to him about his new-found faith.

    §  Second, the applicant claimed that there is tension between Christians and Muslims in Fiji. He claimed that the Attorney-General of Fiji, Aiyaz Sayed-Khaiyum is a Muslim who has undermined Christians’ rights in Fiji. During an exchange with the applicant and his representative, the Tribunal referred to DFAT’s comments on the Public Order (Amendment) Decree 2011. These state that the government had used these powers to restrict the Methodist church’s public gatherings, but there were no restrictions in place as of 2018. In response to its question whether [Church 1] faced restrictions, the applicant replied obliquely that his church does not raise its voice on these issues.

    §  Third, the applicant also claimed that the police used these powers to harass him and restrict his preaching, in market places, malls or other public places. He noted that he sometimes preaches in Hindi, or accompanies Fijian pastors and interprets for them. The police use public order powers to cut him off, ‘every time’. He contrasted his experience as an independent evangelist, with those of Hindus who are permitted to continue drumming in public, or other religious groups.  

14. On the last of these claims, the Tribunal formed the impression that the applicant was improvising to some extent, and exaggerating, to build a case that his activities as a Christian – in particular, an independent evangelist – were subject to restrictions. He presented few details and no supporting evidence (such as witness statements or photographs) to show that his most recent religious practices in Fiji involved preaching in public spaces. He also presented no persuasive country information or other independent reporting to show that independent preachers are targeted or harassed.

15. The Tribunal accepts, on the basis that it is plausible, that the applicant sometimes preached in public spaces, possibly to recruit new members for the short-lived [Church 3]. It also accepts that on some occasions, the police or other officials may have asked him to move on from market places or malls. However, the Tribunal is not satisfied that this happened ‘every time’, as the applicant claimed. In the Tribunal’s view, there are many factors that could influence whether a preacher (or street entertainer, or other person) is permitted to perform, such as whether they are on public or private property, the level of noise (including amplification), and the likelihood that a gathered crowd might impede passers-by. On the limited available evidence, the Tribunal is not satisfied that the police or other officials targeted the applicant, and effectively denied him his religious rights. Related to this, the applicant argued that the police stopped him from preaching, yet allowed other groups such as Hindus with drums to conduct their activities. He contended that they discriminated against him for religious and political reasons, i.e. that they are biased against Christian Fijians and their political agenda. Again, the Tribunal has little scope to test the veracity of this claim, or to understand the circumstances in which it may have arisen. Given its concerns about the applicant’s propensity to exaggerate, it does not accept that he experienced discrimination amounting to persecution (such as a denial of the right to practice his faith) on the basis of his Christian religion or any associated political opinion.

    Health issues

16. The applicant told the Tribunal that he suffers a range of health problems, including [details deleted]. He submitted medical documents post-hearing, including a full patient summary dated 24 October 2017. [Sentence deleted].

17. The Tribunal notes that the applicant attributed [one of his medical conditions] to past police mistreatment while he was in custody. He also linked [current medical issues] to [the Body Part A injury] he suffered in 1987 or 1998 (the date varied), while the current medical records only mention [another incident]. The Tribunal has taken these records into account in the assessment above, and it is not satisfied that there is any demonstrated causal link between these medical conditions and any specific claims of past abuse.

18. The Tribunal accepts that the applicant has concerns about the affordability of his medications and future medical needs, on his return to Fiji. Based on his evidence as a whole, the Tribunal is of the view that these concerns really relate more generally to his and the applicant wife’s overall economic prospects if they go back.   

    Failed asylum seeker

19. The applicant claimed to fear that the Fiji authorities will target him and the applicant wife because they know that they are in Australia and have applied for protection. The Tribunal notes that the applicant and his wife have been in Australia now for more than three years. As explained to the applicants at hearing, the Australian authorities do not reveal to the Fiji authorities information about their protection visa applications. The Tribunal accepts, however, that the Fijian authorities may surmise that the applicants have sought protection in Australia, taking into account that they have been in Australia for more than three years to date, and that they do not have any other obvious basis for a stay of that duration.

    Assessment and findings

20. In sum, the Tribunal makes the following findings of fact:

    §  The applicant worked as a pastor/evangelist for [Church 1] in [Town 1], from about 2000 until 2014. From that time, he was an individual preacher.

    §  The applicant engaged in criminal activities in the period from 1986 to 1999; he has numerous past convictions; and he has spent a total of about three years in prison. There is no evidence that he has engaged in other criminal activity since 2000.

    §  The Tribunal accepts that, prior to 2000, the applicant was subject to some instances of police abuse, including physical assault and threats. He suffered a [Body Part A injury] and other injuries during this period. However, given the sometimes violent nature of the applicant’s criminal activities and social milieu, the Tribunal is unable to determine the exact cause of any individual injuries, such as the [Body Part A injury].

    §  The Tribunal accepts that, from 2000, the [Town 1] police sometimes interviewed, briefly detained and presented the applicant in police line-ups, in connection with recent criminal activity. It accepts that this may have included some verbal abuse and manhandling, at the police station. It also does not accept that this treatment, or any associated psychological pressure, involved persecution or significant harm. It finds that this occurred mainly in the years immediately following his last conviction. It also finds that it took place at the police station, and not in secluded locations.

    §  The Tribunal does not accept that the police or other authorities in [Town 1] have prevented the applicant from practising his faith, as [a Church 1] pastor or, more recently an independent preacher. It finds that he may have been subject to some regulations, but it is not satisfied that these were discriminatory (on the basis of religion or imputed political opinion) or that they caused the applicant to suffer persecution or significant harm. It accepts that the applicants share other Fijian Christians’ criticisms of  the Fiji Government’s policies, particularly the Attorney-General’s perceived favouritism towards Muslims.

    §  It accepts that the applicant has multiple health issues, and is concerned about the cost of his medical treatment – and broader cost of living issues – if he returns to Fiji.

    §  It accepts that the applicants would return to Fiji, and that the Fiji authorities might surmise that they prolonged their stay in Australia by seeking protection.

    ASSESSMENT: REFUGEE CRITERION

21. The Tribunal now assesses whether, in light of the above findings of fact, and having regard to any other relevant factors (such as the applicants’ future conduct or country information), the applicant husband faces a real chance of serious harm amounting to persecution if he returns to Fiji.

22. The applicants were reluctant to be drawn on their future conduct if they return to Fiji, as this is clearly not the outcome they wish. As discussed at the hearing, they have family in both [Town 1] and [Town 4]; the applicant has engaged in some work in Australia, although he claims to now suffer a range of health problems; and he has also worked as a preacher in Fiji.

23. The Tribunal accepts that the applicant experienced some police mistreatment between about 1986 and 2000, when he engaged in criminal activities, was subject to police investigations and detention, and spent time in prison. The Tribunal also accepts that in the years after his last incarceration, the police sometimes questioned and briefly detained the applicant, and put him in police line-ups, during the course of investigating crimes such as [details deleted] in [Town 1]. These incidents may have included some verbal abuse and manhandling, but the Tribunal is not satisfied that they involved serious harm amounting to persecution. It also does not accept that the police took the applicant to ‘the bush’ in [Town 5] or any other isolated location. Taking into account the applicant’s prolonged work in [Town 1] as a pastor, his continued stay in [Town 1] and his delayed departure from Fiji, even after he obtained an Australian visa, the Tribunal does not accept that the applicant had any genuine or well-founded fear of serious harm from the [Town 1] police or other officials at the time of his departure. In the Tribunal’s view, the applicants’ stay in Australia of over three years further reduces any profile the applicant husband may have with the [Town 1] police, and any interest they may have in him in any future criminal investigations.

1. The Tribunal finds that there is no real chance of the police subjecting the applicant to serious harm amounting to persecution – for reasons of his past criminal record, and any future investigations - if he returns to [Town 1] or elsewhere in Fiji. In these circumstances, it is unnecessary for the Tribunal to determine whether the essential and significant reason of the feared harm is one or more of the grounds set out in s.5J(1), such as the putative particular social group of ‘persons in Fiji with a past criminal history’ (or similar).

2. The Tribunal is also not satisfied that the applicant faces a real chance of being denied the opportunity to practice his faith, as a Christian. It is difficult to predict the applicant’s future religious activities in Fiji, as he may choose to live in [Town 1], [Town 4] or elsewhere; he may return to [Church 1] or pursue independent activities; or he may focus instead on other paid employment. Country information discussed at hearing, and in particular the latest DFAT report, indicates that restrictions that have in the past been imposed on Christian groups (especially the Methodist church), often for political reasons, are now negligible. There is no persuasive country information to indicate that [Church 1] or other evangelical groups or individuals currently face discrimination or restrictions that involve serious harm. The Tribunal finds there is no real chance of the applicant facing serious harm amounting to persecution arising from any restrictions on his religious practice, or any (perceived) discrimination against Christians.

3. Although the applicant expressed criticism of the Fiji Government’s treatment of Christians, the Tribunal does not accept that he has any associated political opinion that has in the past, or that will in the reasonably foreseeable future, motivate him to engage in activities opposed to the government. The Tribunal finds that there is no real chance that the applicant will come to the adverse attention of the Fiji authorities for any associated political opinion, and no real chance that they will target him for any such reason.

4. The Tribunal accepts that the applicant currently suffers from[medical conditions]; that he receives medications to treat these conditions; and that he is concerned about the affordability of such treatment if he is returned to Fiji. The applicants have not claimed, and there is nothing to suggest, that appropriate treatment is not available in Fiji, or that he would be denied access to such treatment on any discriminatory grounds.

5. As the Tribunal understands this claim, in light of the applicant’s and the representative’s comments at hearing, his real concern lies in his future income in Fiji, and the affordability of medical treatment, and the cost of living generally. The representative mooted that this was a kind of ‘subsistence claim’, in that the applicant’s lack of capacity to pay for his [medicine] in particular would, in effect, mean that he was being denied the ‘capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist’. This is a reference to the example of ‘serious harm’ stated in s.5J(5)(f).

6. The Tribunal acknowledges the applicants’ concerns about their economic prospects in Fiji, especially the cost of medicine. There is minimal information about the applicant’s future likely income in Fiji, possible other sources of support (such as wider family or the church), his likely medical treatment needs (the medical summary is 12 months old), or the cost of such medicine or treatment. It is difficult to draw any conclusions based on a comparison on his possible future income in Fiji, and the current cost of such medicine in Australia. The Tribunal is not satisfied, on the available evidence, that the applicant would as a matter of fact have to forego treatment for [his medical conditions], due to the cost; and that he would therefore be unable to ‘subsist’. Furthermore, in the Tribunal’s view, the costs of such treatment – as with other cost of living issues – affect all Fijians. These reflect general economic conditions. As it does not involve systematic and discriminatory conduct, and is not for one or more of the reasons set out in s.5J(1)(a), the affordability of such medical treatment does not, in this case, involve persecution: s.5J(4).

7. The Tribunal accepts that the Fiji authorities might well surmise that the applicants have sought protection in Australia, although as the Tribunal assured them at hearing, the Australian authorities will not reveal to them either the fact or contents of their protection visa applications. There is, however, no persuasive country information to suggest that the Fiji authorities target nationals known or suspected of having sought protection abroad. The applicants and the representative noted this observation, without substantive comment.

8. The representative posited that the applicant’s fear of persecution as a failed asylum seeker was not a general claim, but rather a specific fear of harm from his previous persecutors. In other words, she suggested that he fears that the police (or other officials) in [Town 1] would be motivated to harm him, suspecting that he had claimed asylum in Australia, and that he had made allegations against them. Based on the above findings and assessment, the Tribunal is not satisfied that the police in [Town 1] have an ongoing adverse interest in the applicant, as a person with a criminal record or for any other reason. Given his absence from Fiji for more than three years, the Tribunal finds that there is no real chance of the [Town 1] police considering him as a person of interest if he returns there, or of them speculating that he may made allegations against them in the course of seeking protection. The Tribunal concludes that there is no real chance of officials in [Town 1] pursuing the applicant, and seriously harming him, as a person who is suspected of having sought protection in Australia; as a person with a criminal record; or for any other reason.

9. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It finds there is no real chance of the police (or other Fiji officials) in [Town 1] inflicting serious harm on him in the reasonably foreseeable future, for reason of his religion, membership of any (putative) particular social group (such as ‘persons with a criminal record in Fiji’), his political opinion, actual or imputed, or any other ground set out in s.5J(1).

10. Given the Tribunal’s assessment of the applicant’s prospects if he returns to [Town 1], it follows that the applicant does not face a real chance of persecution in all areas of Fiji, and he therefore does not have a well-founded fear of persecution: s.5J(1) and s.5J(1)(c).       

11. The applicant wife completed Form 866C as a person who has their own claims for protection, essentially based on her husband’s original set of claims. The Tribunal is satisfied, and finds, that she has withdrawn these claims, and that she now has no claims of her own.

12. The Tribunal is therefore not satisfied that either of the applicants has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if they return to Fiji.

13. The Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

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

15. The Tribunal takes into account the above findings of fact, its consideration of the applicants’ future conduct and relevant country information.

16. The applicant relies largely on his claim that the police in [Town 1] have in the past physically assaulted him, and subjected him also to mental harm, and that they may torture him if he returns to Fiji, or subject him to treatment or punishment that is cruel or inhuman, or degrading. The representative highlighted the risk of such treatment if the police take him to [Town 5], or similar secluded places that are notorious for such activities. However, in light of the above findings, the Tribunal finds that there is no real risk of the police in [Town 1] or elsewhere in Fiji subjecting him to any such treatment.

17. The applicant’s claims that he may face restrictions on his Christian practice, ongoing discrimination (in preference of other faiths) and potential targeting by the [Town 1] police or more generally by the Fiji authorities lack substance. The Tribunal considers that they do not give rise to any grounds to believe that he will suffer significant harm.

18. While the Tribunal acknowledges the applicants’ concerns about the affordability of medical treatment in Fiji, and more generally, employment prospects and living costs in Fiji. On the available evidence, the Tribunal finds that there are no substantial grounds for believing that he faces a real risk of being unable to earn money or buy medication, such that he might die, or be subject to degrading, or cruel or inhuman treatment. Additionally, even if the Tribunal were satisfied that there is a real risk of significant harm, the Tribunal is of the view that such a risk is associated with living standards and the cost of living generally, risks that all Fijians face. It is not satisfied that the applicant faces personally (even taking into account that he has some current medical [issues]).

19. The Tribunal concludes that there is no real risk that either of the applicants will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflict on them, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that either of the applicants will suffer arbitrary deprivation of their life or the death penalty. The Tribunal finds no grounds that suggest either of the applicants will be subject to significant harm, for any reason, if they return to Fiji.    

20. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of either of the applicants being removed from Australia to Fiji, there is a real risk that they will suffer significant harm: s.36(2)(aa).

    CONCLUSION

21. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), on the basis of their membership of each other’s family unit. They therefore cannot be granted the visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants protection visas.

    James Silva
    Member

    
    

    CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

    Mandatory considerations

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