1606293 (Refugee)

1606293 (Refugee) [2018] AATA 4968 (26 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606293
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:26 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 September 2018 at 8:01pm
CATCHWORDS
REFUGEE – Protection visa – Fiji – particular social group – strong supporter states of Nadroga-Navosa and Ra – association with Mereoni Kirwin – fears military and police brutality – victim of illegal eviction – fear of torture and detainment – reported to journalist – inconsistent information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA,5H, 5J, 5K-LA, 65, 438, 424AA, 499
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 28 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant claims to be a citizen of Fiji.
Departmental file
The applicant’s migration history[1] is as follows:
·     [In] December 2014 he first arrived in Australia holding a visitor visa. He departed Australia [in] March 2015.
·     He returned to Australia [in] December 2015 holding a visitor visa.
·     On 8 March 2016 he applied for a protection visa.
[1] Source: Delegate’s decision record provided to the Tribunal by the applicant.
The applicant submitted protection visa application forms with a copy of the identification page of his passport and a copy of his birth certificate. His documents provide the following background information:
·     The applicant was born in [Town 1], Fiji in [year] and is [aged] years. He speaks, reads and writes in Hindi and English, and he speaks Fijian. His religion is Hindi, his ethnicity is Indian. He has never been married.
·     From 1990 to 1996 he lived in [Town 1]. From 1997 until November 2015 he lived in [a village].
·     From 1997 until 2008, he attended [school].
·     He worked from August 2012 until November 2015 for [a] government business, as [an occupation] (he told the Tribunal that prior to this time, he had been engaged in casual labour work, from the time he had finished school).
·     His passport had been issued [in] 2013. It is however invalid (he told the delegate, as set out the delegate’s decision record provided to the Tribunal, that this was incorrect and that his passport is valid).
·     He referred to his first visit to Australia in December 2014-March 2015, and noted that his most recent travel to Australia was when he left Fiji [in] December 2015, arriving in Australia on the same day as a visitor.
·     He is not the subject of a criminal investigation.
·     He provided no details of his family members, although he noted that his relatives were currently residing in Fiji and he is normally in contact with them once a week through mobile phone (he told the Tribunal that he had parents, and a brother and sister).
·     He has no personal contacts in Australia (he told the Tribunal however that his family member [was] an Australian citizen in [State 1] and he had stayed with him).
·     He signed his protection visa application form on 24 February 2016. He did not receive any assistance.
·     Although he mentioned in his application form that he had a supporting letter to provide, this was not provided to the Department; at interview he said that it was a letter from Mereoni Kirwin).
The applicant’s claims are summarised as follows:
·     The reason he left Fiji was that he is a strong supporter of the two Christian breakaway states of Nadroga-Navosa and Ra, and this is being closely monitored by the regime. By warns of severe punishment for sedition. Further, he associates himself with Mereoni Kirwin and all those were involved with Mereoni Kirwin have been forewarned by the regime of the harm that awaits them if they return to Fiji.
·     If he returns to Fiji, he fears that the military and police brutality in Fiji; torture, rape and brutality continues unabated and deaths in custody have increased. He fears this will happen to him if he returns to Fiji.
·     When asked whether he experienced harm in Fiji, he said no.
·     He did not try to move to another part of the country to seek safety, because Fiji is over-militarised and they cannot do anything while still in Fiji. The only hope is to get out of Fiji and apply for protection.
·     If he returns to Fiji he will be harmed or mistreated; he will be questioned, tortured and severely punished by the military people. The authorities cannot protect him because they are all ruled by the military.
·     He cannot relocate within the country because he already associates himself with Mereoni Kirwin.
Interview with the delegate and decision record
The applicant attended an interview with the delegate on 14 April 2016. The Tribunal has listened to the recording of the interview, and notes that certain aspects of the interview are recorded in the delegate’s decision record (that the applicant provided to the Tribunal). The applicant’s evidence at interview included the following[2]:
·     The applicant said that in November 2014, his parents were illegally evicted by the Fijian government. They were given two days’ notice to vacate their land after the lease with the government expired.
·     He later said however that his parents had no legal right to the land outside of the lease with the government, and his parents had not attempted to address the eviction within the Fijian legal system.
·     During the eviction, his father was assaulted when he argued with the local military officers who were representing the government.
·     The applicant then sought to make an appointment with the Prime Minister and was told by the receptionist that an appointment could not be made but he could attend the office to speak with the Prime Minister. When he attended the office he was told the Prime Minister was too busy to see him. So he then attended a church service but was unsuccessful in trying to have a dialogue with the Prime Minister.
·     In December 2015 he was detained by the local military unit as punishment for going against them by supporting his father attempting to see the Prime Minister. He was taken to a military compound where they took his biometrics and forced him to perform hard labour. He was not given any food during this time and after being released was forced to walk 45 km home.
·     When leaving Fiji he passed through customs and airport security through the normal processes without any adverse attention.
·     He was residing with a family in [Australia] when they suggested he attend church to pray for help. At church a priest told him about Mereoni Kirwin and that she would be able to help him get a visa to stay in Australia. He then moved to [City 1] and met with her once, and she perused his application to make sure he had completed it correctly and to ensure that he would be approved for the visa.
Further claims at interview
[2] As set out the delegate’s decision record provided to the Tribunal.
Other claims made at interview, not recorded in the delegate’s decision record, include that:
·     The military took some of his wages, they were targeting him because of what he did.
·     If he returns to Fiji he will be arrested straight away because they know he is with Mereoni. They know he had contact with her here because they asked his father.
·     “They” don’t like Indian people.
·     He complained out loud about their treatment, and his neighbour is military and complained about the applicant.
·     The media are controlled by the government.
The delegate refused the application on 28 April 2016, noting significant concerns with the applicant’s credibility and a lack of satisfaction that the applicant’s parents had been illegally evicted from their land, that the applicant was detained, and that he is a supporter of Mereoni Kirwin’s political ideology.
Certificate
The Tribunal notes that there was a s.438(1) certificate placed on some pages[3] 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 ss.438(3)(a) and 438(3)(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 said he understood and did not have any other comment.
[3] Folios 47, 57.
The Tribunal
The applicant provided to the Tribunal the Notification of Refusal letter as well as the delegate’s decision record. The applicant was invited to attend the hearing by way of letter dated 5 September 2018, which also requested that any documents and/or evidence upon which he sought to rely should be provided to the Tribunal no later than 18 September 2018. He did not provide any documents or submissions to the Tribunal prior to the hearing.
On 21 September 2018 the applicant sought to change the time of the hearing to 10am on the grounds that his boss “refused” to give him time off for the hearing at 1pm. However, when more detailed questions were asked, he said that he works from 2pm to 10pm and his boss had not responded to his request for time off. When he was asked to find out the response to his request, he then said that his boss had given him time off and he could come to the hearing at 1pm. However, when he attended the hearing at 1pm he said that he worked until 7am and he didn’t sleep before attending the hearing. He did not really explain why, other than to say he was unloading his truck. The applicant did not however suggest that he could not give evidence. The Tribunal asked that he say if there was anything affecting his ability to give evidence. During the hearing the Tribunal also asked him if he would like a break; on both occasions he declined, saying that he could keep going. On the second occasion however the Tribunal insisted that a break be taken. The Tribunal did not consider that the applicant showed an inability to respond to questions or fatigue to the extent that he was unable to meaningfully participate in the hearing.
The applicant also did not request an interpreter for the hearing. He said that he completed high school and the language of instruction was English. The Tribunal however noted a reference in the delegate’s decision record to the applicant saying he had not understood something in his application form; the Tribunal organised an interpreter of its own motion. The applicant said he understood the interpreter, he did not have any objections to her, and he understood that the proceedings were confidential and that the interpreter was bound by a code of confidentiality, but he said he did not want the interpreter to remain in the room. The Tribunal said that it would keep the interpreter outside the room for the duration of the hearing and if he needed to call upon the interpreter he should do so. The Tribunal reminded him later that the interpreter was available if needed; he rejected this offer. The Tribunal considered that the applicant’s level of English was sufficient to understand the proceedings, present evidence and arguments, and respond to concerns and information put to him pursuant to s.424AA of the Act.
Some of the applicant’s evidence was that:
·     He told the Tribunal that he completed his application form himself, with no assistance, and it was all true and correct.
·     The Tribunal said that it wanted to check some dates referred to in the delegate’s decision record. The applicant confirmed it was correct that it was in November 2014 his parents were illegally evicted by the Fijian government. He also confirmed it was correct that he was detained in December 2015.
·     He said that he was able to afford his visits to Australia (each was three months at a time) because at the [workplace] he made good money and was able to save.
·     His father is still [doing work] on farmland which is what he has always done for a living.
·     When the Tribunal asked why the authorities did not take away or harm his family, he claimed that in about March 2018 they took his father away overnight because his father was trying to video them.
·     He has been working in Australia for two years. He only started work when he obtained his work rights. He has done [jobs] and he is a [Occupation 2].
·     When asked what he feared would happen to him upon return he said that because he was detained and tortured previously, he fears this will happen again. He said the torture was that they asked him to do a few tasks for example lift and carry 20 kilos of sand which left him with no energy, and they slapped him on the side and he was really scared. They stepped on his wrist and kicked his knee. The only reason for his fears was because he had spoken out about the eviction of his father and he had caused trouble with the authorities in relation to this matter.
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 country conditions.
Further relevant evidence, and information put to the applicant pursuant to s.424AA of the Act, is 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’s written claims and his oral claims at hearing were inconsistent. His written claims related to harm he would face on the basis of his support for the political ideals of separatism and association with Mereoni Kirwin; however despite the Tribunal giving the applicant numerous opportunities to say why he feared he may suffer harm in Fiji, he made no mention of any political ideals or support for separate Christian states, nor did he suggest that he would be imputed with political support for, or otherwise face harm for association with, Mereoni Kirwin. The applicant was instead very clear that the only reasons he would face harm upon return was because he had made a fuss and come to the government’s attention because of his parents being evicted from their home and his subsequent detention. It was only later, when the Tribunal put to the applicant that he had failed to make any mention of the matters which were the only claims made in his application form, that he then agreed with his written claims.
These were not however the only inconsistencies between his claims throughout the process. The Tribunal also put to the applicant its concern that his written claims and his oral claims at the delegate’s interview were inconsistent. As noted above, his written claims related to harm he would face on the basis of his support for the political ideals of separatism and association with Mereoni Kirwin; he made no mention of any past harm he had suffered before, in particular he had not mentioned that he had been previously detained and harmed, nor that his family had had difficulties with the government, and had been evicted. These claims were made at the delegate’s interview, just over one month later.[4] The Tribunal put to the applicant that this was of significant concern, and that it would think that if his personal and family claims made at interview were true, he would have mentioned these in his protection visa application forms. The applicant acknowledged it was his writing in the application form. The Tribunal said to the applicant that it did not understand how the claims could be so different. In response he said that when he was in [State 1] his family took him to the church to pray, the priest suggested he go to [City 1] and see someone who could help him out. He was losing his mind.
[4] See delegate’s decision record provided to the Tribunal by the applicant.
The Tribunal said it did not understand why he could not write those problems in his application form, instead he wrote something different (which he failed to mention when asked, on numerous occasions, for the reasons he could not return by the Tribunal). The Tribunal read out to the applicant the declaration of truth that he had signed, noting that the applicant declared that the information in his application form is true and honest in every way, and he understands that if he gives false or misleading information, this application may be refused, and any visa can be cancelled. The applicant responded that he could not write down his story, but Mereoni had a family problem too (a relative who was beaten by the military and died), and his mind was not okay and he didn’t have a lot of time to do this, that is why he wrote these other claims. The Tribunal is not prepared to accept the applicant’s assertion that he had a mental health issue which caused him to be able to write other claims, but not his own personal claims, in his application form.

The Tribunal noted that he did not have a relative who had been beaten to death. It also noted that he had come to Australia in fear, yet he did not sign his protection visa application form until two and a half months after his second arrival in Australia. As he said he was not working at this time, it would seem that he had plenty of time to lodge a protection visa form containing his correct, actual claims. He said that his family in [State 1] rejected him and so he went to [City 1] where he was homeless for two days. The Tribunal put to him that if his claims were genuine, it still does not understand why he did not write his actual claims in his application form. He said that he can read but he finds it hard to write. The Tribunal does not accept this explanation, noting that the applicant said he completed the application form himself, and it contains legible, detailed claims in response to the questions as to why he left his country, whether he had suffered past harm, and what he thought would happen upon return and the reasons why. The Tribunal considers that if he had suffered harm in Fiji, he would not have said “no” to this question in his application form, and he would have mentioned the reasons why he subsequently claimed he came to Australia.
The Tribunal had a further concern with the applicant’s late assertion at hearing (after this was raised by the Tribunal) that he faces harm as a result of association with Mereoni Kirwin. After the Tribunal raised this omission as a concern, he then went on to say that the authorities were aware that he had been involved with her because they had told his father this, and his father had then asked him about his involvement with Mereoni. However, as put to the applicant, when it had earlier asked him what the authorities said to his family, he did not claim that they raised his association with Mereoni Kirwin. The Tribunal considers that if this had been raised as an issue by the authorities with his family, he would have told the Tribunal this when first asked what the authorities had said to his family.
Another time at hearing when being asked about this, he said that it was his claim that he supported the breakaway states. He then sought to correct this by saying whatever he mentioned in his application form, it was “his way” of saying he supported Mereoni. He saw her to get her help and he thought he would get her help and get protection to stay in Australia.
The Tribunal is not prepared to accept any of the applicant’s explanations as to why he did not write the claims that he first mentioned at interview in his protection visa application form. The Tribunal is also not prepared to accept the applicant’s explanations for failing to mention at hearing any concern relating to political ideals or association with Mereoni Kirwin until the Tribunal reminded him of this earlier claim. The Tribunal considers that his omissions and changing claims as to what has happened to him and his family in Fiji, and as to why he faces harm upon return, undermine his credibility and claims.
Secondly, the Tribunal was concerned with the applicant’s insistence at interview that the written claims were his actual claims, and that he later gave changing evidence in this regard. At interview[5] the applicant had repeatedly claimed to the delegate that it was all his own words in the application form, he was the one who had completed it. It was only later that he then admitted that the written application was not his real story, but instead what he had verbally claimed at interview was his real story. He hadn’t worried about what was written in the application because he knew he could tell the real story at interview.
[5] See delegate’s decision record provided to the Tribunal by the applicant.
The Tribunal put to the applicant that it was difficult to understand why he would not have immediately told the delegate that the written application was false, instead of repeatedly saying that he had written it and it was his words. The applicant objected to the suggestion that the written claims were false. The Tribunal read to the applicant that “I am a strong supporter of the 2 Christian breakaway states of Nadroga-Navosa and Ra, and this is being closely monitored by the Bainimarama regime”. The Tribunal noted that this was not a claim he had made to the Tribunal; he had made no mention of supporting these states nor of any involvement with or association with these states (or even imputed political association with Mereoni Kirwin) when asked on numerous occasions about his claims. The applicant said that as far as he was concerned he was supporting Mereoni because her story was similar to his. The Tribunal does not find this to be a persuasive explanation as to why he maintained his claim at interview that the claims in his application form were his correct claims, before changing and saying that this was not his real story. The Tribunal considers that the applicant’s explanation at hearing (the claims in his application form were also true) is undermined by his (late) explanation at interview that they were not his real claims. The Tribunal considers that his changing explanations undermine his credibility and his claims.
Thirdly, the Tribunal was concerned that the applicant changed his evidence in response to concerns raised by the Tribunal, as set out below.
Changing situation relating to the eviction: The Tribunal was concerned with the applicant’s changing claims relating to the eviction. He told the Tribunal that his father was leasing a farm and the owner of the farm asked his father to leave. His father said no and so the owner hired four thugs to evict him. He could not say anything about the four thugs except that they were Fijian people, and he didn’t recognise them. His father was kidnapped for two days. When the Tribunal asked why he didn’t make a police report, he said he did make a police report; they took his statement and said that they would investigate but nothing happened. He confirmed that nothing else happened to his father.
This however was inconsistent with his earlier claims. He had not previously claimed his father was kidnapped and held for two days by four Fijians, nor that he had made a police report; and his previous claim at interview was that during the eviction process his father was assaulted by local military officers who were representatives of government. When the delegate asked if he had made all his claims at the end of the interview, he said yes. This was put to the applicant pursuant to s.424AA and s.423A of the Act. The Tribunal noted that the applicant had made no suggestion at hearing that his father had been evicted by and assaulted by four military officers. In response the applicant said there is a mistake, there were four Fijian men, he is not saying they are not military, but he did not know if they were military because they did not have a uniform on. The Tribunal does not find this persuasive, and it notes that the applicant has not explained why he said to the delegate that they were military officers who had evicted his father, not a private land owner. Concerning s.423A the applicant said that the delegate never asked him if his father was kidnapped. The Tribunal does not consider this to be a satisfactory explanation as the Tribunal had put to the applicant that he had been given the opportunity by the delegate to say anything further, yet he had not done so. The Tribunal finds that the applicant did not offer a reasonable explanation pursuant to s.423A of the Act for not mentioning this claim before the delegate.
The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why his new claim about his father being kidnapped by four thugs (not described as military) for two days was not raised before the primary decision was made. Therefore the Tribunal draws an adverse inference about the credibility of this new claim.
Even if it did not draw an adverse inference by operation of s.423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of this claim/evidence because the applicant only made this claim at hearing and not previously, despite having the opportunity to do so. Further, the details are inconsistent to what the applicant claimed to the delegate. The Tribunal considers that the late raising of these matters, as well as the changing details, undermines the applicant's claims and credibility.
Changing date as to when he was detained and tortured: The applicant told the Tribunal that the reason why he obtained his second visitor visa for Australia was because he had been detained and tortured, and he confirmed that this had occurred in December 2015. The Tribunal put to the applicant pursuant to s.424AA of the Act that according to Departmental movement records, he had been granted that visa on 24 November 2015, which was before he was detained and tortured. This could not then have been the reason why he applied to come to Australia.
In response the applicant said that he thinks that the date he was detained and tortured is not correct. The Tribunal asked what the correct date was and instead of responding, he said “it is written in the form”. The Tribunal noted that he had made no mention of being detained and tortured in his application form. He then changed his evidence and said it was the date he told the delegate as set out in the decision record. The Tribunal noted that the date was December 2015; this was the date the Tribunal had earlier sought confirmation of, and the applicant had confirmed to the Tribunal that this was the correct month.
The applicant then said that he came here on 4 December 2015 and that one to two weeks prior he was tortured. The Tribunal notes that this last explanation is inconsistent with his claim at interview, as set out in the delegate’s decision record, that he departed for Australia two days after being detained as he was scared of the military.[6] The Tribunal considers that the above indicates that the applicant is prepared to change his evidence to respond to the Tribunal’s concerns which undermines his credibility and his claims.
[6] Refer to delegate’s decision record provided to the Tribunal.
Changing evidence as to what the military said to the applicant’s family: The applicant told the Tribunal that ever since he left, the military came to his house once a week for the first year, and since then, once a month. This continues to date. The Tribunal asked him to tell it everything the authorities said, and he said all they say, on each occasion, is where is the applicant, why are they hiding him, they are going to take the parents away if they don’t tell them where he is, tell the truth. However, when the Tribunal asked how his parents responded, he said that the parents always say that he is in Australia and they don’t know when he is coming back. The Tribunal noted that this did not appear to make sense; the military would not ask where he was, and where he was being hidden, if the parents had said that he was in Australia. The applicant then changed his evidence and said that the question that the military always ask is when he is coming back from Australia. The Tribunal noted that this was changing evidence, which undermines his credibility.
New claim and changing evidence about reporting to a newspaper: In making a new claim at hearing, the applicant gave changing evidence. He said to the Tribunal that in Fiji, he tried to publish something in the newspaper. When the Tribunal asked what the article said, he said he went to a journalist and he wanted to put it in [the newspaper]. He then said that the [newspaper] would not print the article. The Tribunal put to the applicant that these are two separate newspapers but he has just mentioned their names interchangeably. It asked which newspaper he meant and he said they are the same. The Tribunal put to him that they are two different newspapers; he agreed and said that he thinks that the [the second one] is run by the government and he thinks [the first one] is private. While the Tribunal accepts this[7], the Tribunal asked the applicant how he could say they are the same. He then said that he made a mistake. He said it was [the first one]. The Tribunal put to him that it was difficult to understand this mistake. Further, the Tribunal noted that his claim to have tried to have an article published in the newspaper about his father’s eviction and the Prime Minister’s behaviour, and then the military visiting him at home two days later and questioning him as to why he was putting an article in [the newspaper], was a new claim that he had not previously made before; this was put to the applicant pursuant to s.424AA of the Act and s.423A of the Act. He said that he told the delegate at interview about his meeting with the journalist. The Tribunal said that it had listened to the tape prior to putting this to him and it would re-listen to ensure that the information was correct (the Tribunal notes that, as set out above, at the interview the applicant had made a general assertion that the media are controlled, this does not however change the information put to the applicant, namely that he did not claim to the delegate (nor did he claim in his application form) that he had told a journalist his story, the journalist did not write his story, he got harassed two days later because he had gone to a journalist). The Tribunal re-listened to the recording, however this does not change the information put to the applicant that this was a new claim. The Tribunal finds also that the applicant did not offer a reasonable explanation pursuant to s.423A of the Act for not mentioning this claim before the delegate.
[7][Source deleted].
The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why his new claims about approaching a journalist at a newspaper to write an article about the treatment of himself and his family including at the hands of the Prime Minister was not raised before the primary decision was made. Therefore the Tribunal draws an adverse inference about the credibility of this new claim.
Even if it did not draw an adverse inference by operation of s.423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of this claim/evidence because the applicant only made this claim at hearing and not previously, despite having the opportunity to do so. The Tribunal considers that the late raising of these matters undermines the applicant's claims and credibility.
On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.
Other matters
While the Tribunal accepts that a person can be nervous, and recounting past harm and trauma can lead to distress and difficulties in recall, on the evidence before it, the Tribunal is not prepared to accept this, or his use of the English language, is an explanation for the significant difficulties with his claims and evidence.
The Tribunal has also considered that the applicant has given some consistent evidence, including that he met with Mereoni Kirwin who checked his application form after he wrote it himself, that his parents were evicted, and that he was detained for speaking out. Further, the Tribunal notes that it did have a concern which it raised at hearing in relation to his claim that after he left, the family was visited every week for one year, and thereafter once a month. The Tribunal put to the applicant at hearing that at the interview with the delegate, the applicant had not made this claim. In response the applicant said he had told the delegate that they had visited his family; upon re-listening to the tape the Tribunal agrees that, although he did not suggest there were weekly visits (from the time he left until he was interviewed by the delegate) as claimed to the Tribunal, he did suggest that the military had visited after he left; in the circumstances the Tribunal is prepared to give the applicant the benefit of the doubt and accept that he asserted both at interview and at hearing that his family had been visited after he left. The Tribunal does not however consider that this, or other consistent evidence, can overcome the other difficulties with his evidence.
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 and that the applicant has fabricated accounts of events and claimed 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 that the applicant suffered as described in his oral evidence to the delegate or at hearing, nor that he supports matters or people considered adverse by the government. The Tribunal is not satisfied that the claims made by the applicant are true. It does not accept that the applicant’s family were evicted, nor that he complained or spoke out about this, nor that he or his father were held or harmed or reported on by anyone, nor that they came to the adverse interest of anyone in Fiji. The Tribunal does not accept that he or his family experienced any threats or harm (from anyone) in Fiji, nor does it accept any of the claims flowing from these claims, including that as a result of the matters claimed he suffered distress or any other mental health condition. The Tribunal is not prepared to accept that he has had, or has, a mental health condition. The Tribunal also does not accept that he had any difficulties during his work in Fiji including with anyone taking his salary.
The Tribunal does not accept that the applicant considered that he had a need to escape from Fiji, nor that he feared or fears returning to Fiji, nor that anyone seeks to harm him, nor that he has a fear of torture and threats in Fiji. As it does not accept the claim that the military or police or any other authorities have sought to harm him or his family in the past, nor that they have had any past adverse interest in him or his family, and it has found that he has made up this claim, it is not satisfied that there is evidence to support that, on the basis of any past encounters, there is a real chance or a real risk that he faces being subjected to adverse attention from the authorities in Fiji.
The Tribunal finds that the applicant was prepared to make false and changing claims to support a protection visa application. The Tribunal does not accept that he has faced any threats or harm in Fiji nor that anyone has had any adverse interest in him since he has been in Australia.
Activities in Australia: The Tribunal has found that the applicant was prepared to tell untruths about his situation in Fiji and his claimed support for political ideologies and Mereoni Kirwin. The Tribunal accepts that Mereoni Kirwin has drawn adverse interest from the Fijian government.[8] It also notes the reference in the DFAT report to the low risk of harassment, arrest or detention for solely being a member or supporter of certain organisations including that associated with Mereoni Kirwin. However, in relation to this applicant, he did not suggest that he had undertaken any activities other than having met her once in connection with his protection visa application (the Tribunal notes that the envelope accompanying his protection visa application forms referred to the sender as “[the applicant] c/- Oni Kirwin”). On the basis of the adverse credibility finding the Tribunal does not accept that the applicant has had any political interest or involvement in Fijian issues while in Australia such as the breakaway Christian states, nor that he supports Mereoni Kirwin. Thus, while the Tribunal is prepared to accept that he met her in connection with his protection visa application, it is not satisfied on the evidence before it that there is any reason for anyone in Fiji to have been aware of this nor that there is any credible evidence of anyone being aware of this. The Tribunal is not prepared to accept his assertion that his father told him that the Fijian authorities are aware that he met her.
[8] DFAT Report:

The Tribunal finds that the applicant does not have any genuine subjective fear that there is a chance or risk that he will be imputed with a political opinion, and it considers that on an objective basis, having regard to the evidence before it including the country information, it is not prepared to accept that the applicant faces a real chance of serious harm or a real risk of significant harm from the authorities on the basis of a one-off association with Ms Kirwin.
The Tribunal has not accepted that the applicant has undertaken any political activities or had any political involvement in Australia, nor does it accept that there is any reason for him to be so imputed by anyone in Australia or in Fiji. Further, the Tribunal does not accept that the applicant would seek to have any involvement with political activities in Fiji upon return, not because of any fear, but because of a lack of interest and/or motivation.
The Tribunal noted that if it did not accept his claims, then when considering the DFAT Report on country conditions it may be that he does not face a real chance of serious harm or real risk of significant harm. The Tribunal noted that the applicant had raised claims about general conditions (torture and brutality from the authorities, Indo-Fijians suffering racism, in that his sister could not attend university and indigenous Fijians receive preference over Indo-Fijians). The Tribunal referred to the DFAT Report in particular in relation to low level discrimination of Indo-Fijians.[9] The Tribunal notes that apart from his claims about his father and sister, and his claims that when he was in detention “they” did not like him because he was Indo-Fijian, and that he could not access justice and that his wages were taken (none of which claims are accepted by the Tribunal), this particular applicant has not claimed that he has been adversely affected by discrimination in the past, and the Tribunal is not satisfied on the evidence before it that this particular applicant faces a real chance of serious harm or real risk of significant harm in the form of discrimination because he is Indo-Fijian. Further, the applicant has not made any credible claims suggesting that the general country conditions mean that he faces a real chance of serious harm or real risk of significant harm for any reason. It notes that he was educated and worked in Fiji and he said that he had been living with his family until he came to Australia; the Tribunal considers that he can return and again work and live with his family. On the evidence before it,[10] the Tribunal does not accept that he faces a real chance of serious harm or real risk of significant harm from the authorities in the form of torture or brutality or any other harm for any reason.
[9] DFAT Report, paragraph 3.10: “Overall, DFAT assesses that Indo-Fijians face a low level of official and societal discrimination based on their race/nationality.”
[10] Including the DFAT report, paragraph 2.43: “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 finds that the applicant did not make any claim that he faced harm on the basis of his religion as a Hindu (and he did not suggest that although he claimed to have visited a church in Australia, that he had converted or had any interest in converting to Christianity, nor that he would have problems on the basis of religion upon return).
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 this is what he faces (a real chance or real risk of harm) 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 harm 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), 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 of the past harm or threats or adverse interest as claimed.
The Tribunal has accepted that the applicant is a Fijian male of Indian ethnicity who was educated and has work experience in Fiji and Australia, and that he has a home to return to where his parents and sibling reside. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.
The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason (including in relation to speaking out or complaining against events that occurred to himself or family in Fiji, nor for any actual or imputed political reason arising from associations or activities in Australia).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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 set out 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 set out 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.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

3.51 The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody. ….

3.56 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.

[2018] AATA 4968

26 September 2018

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