1606584 (Refugee)

1606584 (Refugee) [2016] AATA 1390 (12 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606584
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Stuart Webb
DATE:12 July 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 July 2016 at 2:39pm
CATCHWORDS
Refugee – Protection visa – Fiji – Witnessed a murder in Fiji as a child – Criminal record in Australia – Criminal matters have limited relevance to the protection claims – Lived in Australia since a child – No real risk of persecution – Practice and procedure – Authorised recipient could not act as the applicant’s representative – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499, 501, 517,
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559 at 572
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 19 October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 8 September 2015. The delegate refused to grant the visa on the basis that the applicant had not provided enough detail about his claims for the delegate to be satisfied that the applicant had a real chance the applicant would be subject to persecution on return to Fiji, nor that there was a real risk the applicant would suffer significant harm on return to Fiji.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court by consent, as it was determined that the Tribunal had not provided the appropriate time for notification of the hearing. The matter is now before the Tribunal pursuant to an order of the Court.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided very limited information as to why he could not return to Fiji in his application. He stated solely that he will be killed. In his application for protection the applicant states that he is of Fijian ethnicity and Christian faith.
The previous Tribunal provided a summary of the evidence as provided by the applicant. Having reviewed the information, the Tribunal considers the following is a correct reflection of the information as provided by the applicant pursuant to his claims for protection.
11.      The applicant was interviewed by the delegate and said that if returned to Fiji he will be dead, intimated that it was of a personal nature but did not provide any further details.
12.      At hearing I explained to the applicant the tests I must apply in considering his application for review. He confirmed that he had come to Australia on an AH 101 Child visa when he was [age]. His mother is an Australian citizen and his siblings are all permanent residents. His father passed away 5 months ago and he has no other relatives in Fiji. He returned briefly to Fiji in 2001 to spend some time with his father and completed Year [grade] there and then returned to Australia in 2002 and has not returned to Fiji since then.
13.      He confirmed that he had been convicted in Australia of a number of criminal offences. He said that since he has got out of jail he has been working ever since, doing [work] – he is a [certain industry] specialist. He confirmed that his Child visa had been cancelled. He was detained and taken to [Detention Centre 1] and was then taken to [Detention Centre 2] about a month and a half ago. We discussed why he had been unable to apply for a bridging visa.
14.      I asked the applicant why he feared return to Fiji. He said that he could not return to Fiji. I asked him if he could tell me about that. He said that he had had an interview with the delegate and told him the same thing; if he has to go back it’s pretty much his head. He had told the delegate he couldn’t go back. I asked if he could give me any further detail and he said not really.
15.      I explained to the applicant that I had to make a decision based on the claims that he put forward. He reiterated that if he goes back he will get killed. I asked if he could tell me why he thought this and he said he could not really tell me that. I asked if this was because he did not know or he could not say and he said probably both.
16.      I asked if he had been charged, convicted or committed any crimes in Fiji. He said no, that he was only a kid when he left. I noted that he had claimed to have experienced harm in the past in his application and asked if he could tell me about that. He said no, he could not share that with me.
17.      I asked if he believed the Fijian authorities would protect him from the claimed harm. He said they would not. I asked him why he believed this and he said that he could not give me that reason.
18.      I reiterated that it was for the applicant to make his case in as much detail as necessary to satisfy the decision maker of the claimed fear of harm. I reiterated that the process was a confidential one that would not be shared with anyone in Fiji or Australia. I asked again if he could provide any detail about the things I had asked him about. He said that he really had nothing much to say about it.
The applicant provided two letters and supporting documents to the Tribunal. The letters stated.
My name is [name deleted] I am currently being detained at [Detention Centre 2]. This is my response for my visa cancellation under-subsection 501(2a) dated 12 August 2015. I would like you to exercise your discretion and revoke the mandatory cancellation on my visa.
I have paid the consequences of my actions in the past and tried to move on with my life unfortunately it does let me due to my current situation. Not a criminal nor a recovering alcoholic or a drug addict I simply made a lot of bad choices when I was younger. Humbly ask of you please take the following information into consideration when making you final decision on my life.
I accept that I have a substantial criminal record and do not pass the character test. Since 2006 had been convicted with few offences entering multiple suspended sentences into good behaviour bonds. For the most recent offence [was] sentenced to 2 years with non-parole period of 12months.
Served my 12months in prison was released on [date]/05/2014 vowed never to return, it also brought the best out of me as a person. Moved back home with my Mom and [brother] had a couple of jobs before landing on my current employment with [Workplace 1]. Started late January 2015 till the 19 August 2015 the day I was taken from my [home].
In between of completing parole and working I have also managed to get [professional licences]. I had received the notice of consideration of cancellation of my visa by mail but was oblivious to the seriousness of the matter at the time. Filled in the Form that was sent in with it and returned it to the National Character Consideration Centre (NCCC).
The Department of Immigration and Boarder Protection (D.I.B.P) told me that my visa was cancelled I was completely shocked they took me straight to [Detention Centre 1]. I phoned my family/work the next morning explaining where I was they could not believe that something like this would ever happen to me.
My mother had also told me that my sister had given birth to my nephew who she named [after] me and my late father. Coincidentally speaking the time I have spent in detention is also my nephews age. I had also made an appointment with a mechanic the day before on my way home that evening to register my car the next arvo after work.
The risk of me re-offending are virtually and practically nil. I was permanently employed by [Workplace 1] for the past 9 months overall 15 months since my release with no prior convictions. Worked 5 days 40 hours per week from 7am to 4pm and occasionally Saturdays. Spend most my time with my family and friends, pretty much just enjoying life. My family and I were so much looking forward to meeting the new member of our family my nephew especially my mother. She was filled with joy that morning my nephew had been born and also disappointed about the situation that I was in. A month later my family brought my nephew in for visit at [Detention Centre 1] I was so happy and filled with a lot of mixed emotions at the time due to my father who had passed away a month before I came into detention I was emotionally wrecked.
It has been challenging being in detention the pain that I feel every single day is unbearably exhausting I wish this upon no man, hope is all I have without it I don’t exist. The past is past as it is now present all I ever want right now is to be reunited with my family. I have always had the hunger to make things better for them because its expected of me as a son/brother/Uncle. I believe I was on the verge of that journey before I was taken away from them.
The second letter stated:
I came to Australia with my sister and brother when I was [age] years old. We were reunited with my mother who had already been waiting for us after a long custodial battle with my father. I had lived with my father since then, the reason why they separated is still unclear to me till this day I never asked my mom but I know there had to be a good reason why she left us when we were younger. I love my mom with all my heart she is the bravest person I know and no matter what she always has faith in me. My father was a great man his my inspiration and my biggest regret was not telling him enough that I loved him.
We lived at [a suburb] in [Australia] where I attended [School] continued on [to grades], I went back to Fiji for a year to spend time with my father and completed Yr[grade] at [a] School. Unfortunately I didn’t complete [school and] dropped [out]. At the time I was not 100 percent with my school work and had injured my [knee] from footy with [a] Club.
Always have wanted to pursue in further studies, if i am permitted to remain in Australia I know I can do some good with my life. I fear for the worst if sent to Fiji my life is in your hands all I am asking from this honourable court is a `Fair go’ that’s all i could ever ask for. Thank you for your time.
The applicant’s mother wrote an email, which provided some further information.
I [the] mother of the above named, do hereby humbly request that upon the hearing and determination of his case request your provision to allow my son to remain in Australia due to the following reasons:
* The only next of kin or immediate family member was his late father [who was an] [occupation] died on [date] June, 2015, thus there is no one else to live with or go to in Fiji as all his siblings are Permanent Residency in Australia.
* He has been under my care in Australia since he was [age] years old, thus returning to Fiji will only traumatized him psychologically, physically, mentally and emotionally if he is ordered to return to Fiji.
Furthermore, my children and I hereby undertake full responsibility and assure you that [the applicant] will comply with all conditions set forth by this honorable court and that he will not breach any other conditions accordingly.
Also, attached are copies of his siblings support letters and his late father's copy of death certificate for your information.
In light of the above reasons, kindly have the above named remain in Australia. I look forward to your understanding and favourable response.
The applicant provided supporting material from his employer and people who vouched for his character.
On the day of the hearing the Tribunal was contacted by a person who sought to assist the applicant. The Tribunal noted that this person, who was not a migration agent, an exempt person or a family member, could not be the applicant’s representative, but could be the authorised recipient. This person provided the Tribunal with a signed response to hearing from the applicant stating that he would be attending the hearing, as would his sister and mother.
Subsequently, 30 minutes prior to the hearing the Tribunal received a request to adjourn the matter, noting various issues with finding suitable representation, the loss of documents in [Detention Centre 2] relating to the applicant’s criminal history, which was said to be what the case was based around.
The applicant’s sister and mother attended the Tribunal at the time of the hearing. The criminal matters had limited relevance to the matter at hand, the protection visa application, as they had no reflection on the applicant’s fear of harm on return to Fiji. The Tribunal determined that it would proceed to hear the matter, and provided the applicant with time post the hearing to provide submissions, should he wish to.
The Tribunal at the hearing impressed upon the applicant the need to provide further information as to his claims, his statement that he was afraid he would be killed and that it was a personal matter. The Tribunal noted that it was most likely the final opportunity to provide a Tribunal with the reasons why he feared returning to Fiji.
The applicant then disclosed information from the time he was in Fiji in 2002. The applicant stated, and the Tribunal accepts, that the applicant had never before disclosed this information. The manner of the disclosure, and the response of his family members who were in the room with the Tribunal, lend weight to the statement that this information had not being disclosed previously. The applicant’s sister in particular noted that it explained why the applicant had refused to return to Fiji, even when his father passed away in 2015, when the remainder of his family returned to Fiji.
The applicant stated that the reason that he feared returning to Fiji was that he believed he would be killed. The applicant stated that about a month prior to his return to Australia in December 2002, he had been returning from school on a Friday afternoon in the suburb of [Town 1], near [Town 2]. The applicant stated he witnessed a Fijian man, who had two bodyguards, slit the throat of another man with a machete. The man who did the killing saw the applicant, grabbed him and told him if the applicant returns, he will kill him. The applicant stated that the man went through the applicant’s school bag and found his wallet, which had a proof of age card which detailed the applicant’s name. The applicant stated he was the only witness to this murder, which took place on a back road short cut. It was heading towards night when it occurred.
The applicant stated he returned to his home where he resided with his father. A month later he left Fiji and never returned. He never mentioned it to his father at the time, nor any other family member, but stated that he remembers it to this day, though he has tried to forget it. He has no idea as to who the killer was or who was killed. He stated that there was no report of this incident in the news in the subsequent days. He stated that the man who did the killing and threatened the applicant must have been important as he had bodyguards. The applicant’s sister stated that she had been in regular contact with her father who had never mentioned this incident, nor anyone ever approaching the family in Fiji about the applicant.
The Tribunal asked the applicant how this person would know that the applicant was from Australia, to threaten him to never return or he would be killed. The applicant did not know. The applicant could not recall if the proof of identity card was Australian or Fijian. The applicant stated that it was a small community in Fiji, the man would definitely know who he was. The applicant’s sister stated that they were the only family called [by that surname] in Fiji.
The Tribunal noted that this incident occurred a significant number of years [ago]. The Tribunal noted a number of issues with the passing of time. The applicant was no longer a [age] year old student but a [age] year old man. He had no idea who the killer was, where he was, whether he still was alive, whether he would remember the applicant and his name so many years later. The family in Fiji had never been approached. There was no report of any killing and the applicant knew nothing of any follow up. The Tribunal noted that Fiji had gone through significant political, economic and environmental changes since that time, and that it had concerns that the applicant’s subjective fear, which was readily apparent in his evidence, was not based on any objective basis.

The applicant stated that he did not want to die. If he went back he would be killed. The applicant maintained this claim even when the Tribunal asked him about other factors, such as the ability to support himself on return to Fiji. The applicant stated he was not concerned about supporting himself, as he believed he would be dead if he returned. The applicant stated that he would not return to Fiji.
The applicant asked the applicant about his ability to support himself in Fiji, noting that he was a young man with practical skills. The applicant’s mother confirmed that she had extended family in [Town 2], though there was limited contact with them. The Tribunal accepted that the applicant’s immediate family was in Australia, but that there was some family in Fiji.
The Tribunal asked if there were any health or psychological reasons why the applicant could not return, noting the applicant’s mother’s submissions that she supported him ever since he was [age]. The applicant stated he had never spoken to a mental health practitioner, he had kept this information to himself. The applicant’s sister confirmed the applicant was did not speak about many things but kept to himself.
The Tribunal asked if there were any other reasons why the applicant believed he could not return to Fiji. The applicant did not disclose any other reasons, he stated that his fear of the man who threatened him was the only reason he could not return to Fiji. The Tribunal notes that the applicant has not claimed that any other threat has occurred to him other that this specific event in late 2002/
The applicant’s sister stated that Fiji was a corrupt place, the government run by crooks where people were scared to raise opinions. If a complaint was made to the police, the army would hunt that person down. The applicant did not personally raise any issue as to the corruption in Fiji, but believed that because the man who did the killing had bodyguards, he must have been important.
At the end of the hearing the Tribunal provided the applicant until close of business on Friday 8 July 2016 to provide any further information and submissions he wanted to the Tribunal to consider. The Tribunal stated it would not make a decision until at least 11 July 2016. The Tribunal did not require a further hearing nor offer a further hearing to the applicant.
The Tribunal received the following information after the hearing. The applicant provided the following statement.
If I was a citizen I would not be here before you but the fact of the matter remains the reason why I cannot return to Fiji is as real as it gets. It’s been 16years since leaving Fiji after witnessing a horrific murder and I was told then if I ever return it will be my head. The 17th June was the first time I ever spoke about it but before then I was so scared of sharing it with anyone else knowing that something bad would happen.
I will be [age] years old on the 22nd July I have so much more to offer in life and I want to experience those changes and push my limits as far as it goes. This burden that I have carried with me all these years has brought me nothing but misery. I missed the chance of knowing my father well and simply engaging in a conversation about life or having a drink with him and having a good laugh with him you know. I will never have that privilege again in this lifetime due to my circumstances. I also had missed my Uncles funeral Dads older brother few years back he was my favourite Uncle a good man I truly do miss them both.
I don’t have a big shot lawyer representing me but I humbly ask this honourable court please just bear with me I will do my best to defend myself prepare this case as well as it could be prepared this is my life on the line and I won’t give up without a fight. I believe that this is a court of law and hope justice will prevail.
The Tribunal also received a supporting letter from his sister, who was a witness at the hearing. The letter stated she had been affected by the hearing. She believed her brother would have difficulties in Fiji on return. People disappear all the time.
The applicant provided a further statement to the Tribunal. This stated:
First of all I would like to apologise about the illegal advocate who asked to intervene in my case on my behalf she was recomended to me by another fellow detainee, he meant well he just wanted to help me. The following day after the hearing I sent an email to that lady with [an overseas] advocacy saying her services were no longer required. Since then I have also warned my friend to be aware of her that she is not allowed to be representing detainees because she is not lawyer.
I thought that I would have another hearing on the 11th July my case manager yesterday has informed me that there wont be one, but a decisoin would be made on that date. I had written some points of arguments that I was going to share with you member at court but I am writting it down now as follows:
What gurantees can you offer me and how can you control something that you dont have any control over. Your sending me to my own execution is the department asking me that my death would/ will suffice as evidence. How do you tell someone that he/ she must die to prove their innocence. I had alot of things stripped away from me because of this burden and now I am going to be stripped away from the very most important priveldge in life which is the right to live it as a human being. I ask myself many times ` is this it’ of my life I mean dont I matter at all or what happens after Im dead? Im sorry that I did not write down all the good I have done over the years but I have been discriminated against by this wrong doings that you have before you I have paid a heavy price and suffered the consequences of my actions along with my personal problems as well.
I am so tired of being judged and while being here in detention my thoughts about my death every single day is unbearably excruciating to my mental health. Everything that I have encountered over the years are affecting me including the riots that I encountered last year. I completely clearly did not participate in the riots but was treated as one who was, I was cable tied with my hands around my back defenceless and was stood up and being phsically punched/ kicked/ elbowed/ kneed from 6 officers and it still did not stop them from continuing after I dropped on the ground, thankfully I heard 1 officer yelled out to them saying oi that’s enough then it ended.
Everything I have written here before you is a portion of what Im going through every single day it hurts but Im holding on in there. The murder that I witnessed has marked me for life it will always be there on top of my mind and the consequences that I will face if ever returning to Fiji. Over the years I have always struggled to express my emotions with others but I am learning to share that insecurity now with my family. I think most of my wrong doings has alot to do with it and it has landed me in places that I would never thought of being in. I dont want to die I assure you the path that I walk now is the right one and I have let go of my childish ways and I give you my word that I will be a better man. Thank you for reading what I have written and I am hoping for the best this court comes to making its final decision on my life
The applicant provided some certificates he attained while in detention.
Findings and reasons
Country of nationality
The applicant claims to be a citizen of Fiji and provided copies of Fijian identity documents to the Department with his application, including expired Fijian passports. The Tribunal finds that the applicant is a citizen of Fiji, and that Fiji is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
The Hearing
The Tribunal proceeded with the hearing on 17 June 2016. The applicant responded to the invitation that he would attend, and the applicant’s mother and sister attended at the hearing in person. The Tribunal received an email 30 minutes from a person who that day had been appointed the authorised recipient for the applicant asking for an adjournment. The letter stated that there had been an attempt to find a migration agent, arranged by this person, but that this agent had not acted in the manner that they were happy with so they did not proceed with him. The Tribunal has not been informed who this migration agent was as they never went on the record as representing the applicant. The letter stated that they were working on finding an ‘ethical migration agent‘. The letter went on to say that the applicant had lost documents pertaining to his criminal history, and that ‘as his case is based around his extensive criminal history it should be only fair that he have a copy of it to present his side of events’. As noted, the applicant’s criminal history is not relevant to this matter. It was also noted that the applicant has limited access to representatives due to his being detained on [Detention Centre 2]. Time was also requested to prepare statements from the applicant’s sister and mother.
The Tribunal did not accept the request to adjourn the matter. The Tribunal noted that the person who was designated the authorised recipient could not be the applicant’s representative, as she is not a migration agent, an exempt person or a family member of the applicant. The plans to find a representative were vague and limited. The authorised recipient was misguided as to the nature of the application, as evidenced by her reference to the criminal history being the matter of relevance in this matter. The applicant and his witnesses attended the hearing as scheduled and as responded to by the applicant on the day of the hearing. As discussed above, the Tribunal was able to receive evidence from the applicant regarding his circumstances that had been unknown to anyone but the applicant.
The Tribunal gave the applicant the opportunity to speak to his mother and sister privately at the hearing. The Tribunal also provided a 3 week period for the applicant and his family to provide further information now that there was more detail available as to why the applicant feared harm in Fiji. The Tribunal noted that the applicant could request a copy of the hearing recording should that be necessary.
The Tribunal does not consider that the applicant was disadvantaged by his having no representative attend the hearing, or for the Tribunal to refuse the request of the authorised recipient to adjourn the hearing. The Tribunal considers that the applicant and his witnesses were able to present the case, and as discussed, the applicant chose to reveal the information that hitherto had remained secret to him.
The nature of the application
The Tribunal spent some time discussing the nature of the application that the applicant had made. The applicant understandably has focussed his attention on the cancellation of his visa on character grounds, a decision of the Minister for which there is no merits review available. The applicant has applied for a protection visa, being the only available visa that he could apply for in his circumstances. The Tribunal explained that its role was to review the decision to refuse the applicant’s protection visa application, not the decision to cancel the visa he had previously held.
The applicant has spent most of his life in Australia. He arrived in Australia as a child in September 2000. He departed for Fiji on [date]/12/2001 for a year. He returned to Australia on [date]/12/2002 and has remained in Australia since that time. His mother and sisters have also migrated to Australia and have permanent residency. The applicant’s father remained in Fiji and passed away in June 2015.
The applicant’s permanent visa to remain in Australia was cancelled by the Minister for Immigration pursuant to Section 501 of the Migration Act 1958 on 12 August 2015. The visa was cancelled as the minister was not satisfied that the applicant passed the character test as detailed in s.501(6)(a), that the applicant had a substantial criminal record. The applicant has acknowledged he had a criminal record.
Claims
The applicant stated in his initial claim that ‘he is afraid he will be killed’, and further stated at the interview with the delegate that it was a personal matter. He did not provide any further information regarding his claims, despite the opportunity to do so, in his application, before the delegate, and before the Tribunal in the first instance. He has been given an extended time to consider his circumstances, having been detained in since August 2015, and with protection assessments conducted in October 2015 and 1 December 2015. He lodged his application with the Federal Circuit Court in late December 2015, and the matter was remitted in May 2016. The Tribunal considers that he has had time to consider his position and be provided with advice as to his circumstances, even with the limitation due to his current detention.
As detailed above, perhaps considering the limited future opportunities to provide his evidence, the applicant chose to disclose information that had not previously been provided. This provides a claim as to why he fears harm on return to Fiji, which was to now a very limited matter.
The Tribunal has considered the new information that is now before the Tribunal. The Tribunal notes that the late provision of information can cause concern as to its veracity, given the many opportunities that the applicant has had to disclose this claim in the past. He gave limited reasons as to why he did not raise these earlier in his protection visa process. These are legitimate concerns for a Tribunal.
However, there are instances where a person does provide information that had not been disclosed previously that should be given weight. The Tribunal notes guidance on assessing credibility, including as provided by Hathaway and Foster in The Law of Refugee Status (2^nd Edition)[1]. The Tribunal recently held a conference where discussions of assessing credibility were held, with relevant reading material.[2] The Tribunal also notes judicial guidance on the issue of credibility.
[1] In particular pp138-157
[2] Coyle I and Thomson D, “Opening up a Can of Worms: How Do Decision-Makers Decide When Witnesses are Telling the Truth?” (2014) 21(4) Psychiatry, Psychology and Law 475-491
The applicant has disclosed information about a violent event that he witnessed, something he has told no-one, not even his family. The response from his sister, who determined that this explained other activities of the applicant in the past, such as not returning to the funeral of the father with the other family members, despite funerals being a significant matter in Fijian culture. The Tribunal was struck by the language of the applicant when describing the incident, a person who was otherwise quite reticent, detailing specific images such as the machete cutting the throat of the man. The details of the incident, now [several] years old, were quite apparent in the applicant’s recollection. The Tribunal was struck by a particular statement of the applicant, that the ‘fear that I fear now is the same as I felt on the day’. This explained his reticence, to a degree, but also his subjective fear which remained, and was recounted a number of times during the hearing.
The Tribunal has considered this claim. The Tribunal accepts that the applicant was a witness to a murder in 2002, and that he was threatened by the man who was the killer. The Tribunal accepts that the applicant’s perception that the killer was important or powerful at that time, because he had bodyguards, was a reasonable assumption on the applicant’s part. The Tribunal accepts that the applicant is a witness of truth in this regard.
The Tribunal has considered whether the applicant has a well-founded fear of persecution because he was a witness to a murder in 2002. For the following reasons, the Tribunal does not accept that the applicant has a well-founded fear.
The applicant claimed that he was threatened by a man he assumes was influential because he witnessed this man kill another man in late 2002. The applicant has no idea as to who the killer or the killed man were. He believes that the killer knows his name, having seen his proof of age ID. He was told to go away and never return at the time, and has heeded that warning.
The Tribunal stated at the hearing that there were a number of concerns with the claim that this man would still be interested in the applicant and would harm him on return to Fiji. The Tribunal noted that this incident was a significant time ago, [several] years had passed, and the killer’s contact with the applicant was fleeting. The applicant stated it was limited to a threat to get away and never return, and the finding of a proof of age card, which had the limited detail as to the applicant’s age and name. The Tribunal expressed its concern that the applicant was now [age] years old, and would not be recognisable from the youth who was spoken to [several] years earlier in the late afternoon, shortly before nightfall, by any person. The Tribunal expressed its concern that this person would not remember the name of the applicant arising out of the incident that occurred so long ago.
The Tribunal noted that the applicant’s family in Fiji, who lived nearby, had never been contacted by anyone arising out of this event. It was confirmed that the name ‘[applicant’s surname]’ was rare in Fiji, it was only their family. However no person ever approached the applicant’s family, either soon after this incident or in the subsequent [years] to determine the whereabouts of the applicant. This leads the Tribunal to consider that there is no interest in the applicant by any person involved in a killing in 2002, as there was no approach or conformation of the applicant’s identity that the applicant is aware of in the intervening period to now.
The Tribunal has also considered the immediate aftermath of this incident. The man let the applicant go, despite being a witness to the incident, and told him never to return. The applicant remained in Fiji for a month after this, staying with his family. No-one came looking for him, despite what has been stated as the uncommon name. The applicant noted that there was no subsequent reporting of any killing or missing person. The killer was not arrested during the period the applicant remained in Fiji. A review of the internet at the hearing disclosed no references to any murder in [Town 2] or [Town 1] in late 2002. The Tribunal stated that it appeared that there was no reference to this killing, and questioned whether there would be any action against the applicant so many years later by this unknown person. The applicant stated that he was sure he would be killed. The Tribunal considers that this belief of the applicant is pure supposition, and not based on any objective basis.
The applicant has no idea as to who this man is. He could have passed away, left Fiji, or moved to another island. The Tribunal stated that it had significant concerns with the applicant’s claim that this man remained a threat to the applicant, given the passing of time. The Tribunal also noted at the hearing that there have significant upheavals that have occurred politically, economically and environmentally in Fiji since 2002. The Tribunal noted that any of these issues could have had a significant effect on the man the applicant described as being influential in 2002.
The applicant has no idea who the man who threatened him was. There have been no subsequent threats made to him or his family, no contact that has been made seeking the applicant or his personal situation. Apart from the one off incident in late 2002 the applicant or his family has had no further contact from this person.

The Tribunal has to consider whether the applicant faces a continuing risk of persecution in the future for this particular reason. The Tribunal notes the Australian law on this point, as to a real chance being one that is not based on mere speculation or that it is not remote, but rather, has a real substantial basis.
A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[3] In Chan v MIEA Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[4] A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[5]
[3] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.
[4] Chan v MIEA (1989) 169 CLR 379 at 389.
[5] (1989) 169 CLR 379 at 389.
In the same case Dawson J stated:
... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[6]
and Toohey J stated:
A “real chance” ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.[7]
Similarly, according to McHugh J:
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.[8]
[6]Chan v MIEA (1989) 169 CLR 379 at 397-398.
[7]Chan v MIEA (1989) 169 CLR 379 at 407.
[8]Chan v MIEA (1989) 169 CLR 379 per McHugh J at 429.
Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[9]
[9]MIEA v Guo (1997) 191 CLR 559 at 572.
A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[10]
[10]MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
The Tribunal accepts that the applicant was a witness to a killing in 2002, and was told by the killer to leave and not come back. The applicant has not been back since then. However the Tribunal does not accept that the threat made in 2002 by this unknown man has any basis in fact in 2016. The Tribunal considers the claim that the applicant would be harmed by this man to be mere speculation, and not one that could be considered a real chance or real risk of occurring.
It was noted at the hearing that people disappear in Fiji, that this is not reported. The incident that the applicant was involved in would appear to support that contention, given it was not reported. However simply because can this happen does not mean that there is a real chance or real risk of occurring to the applicant. The applicant himself was not killed when he was a witness to this incident, he was told to go away. After a month he did leave Fiji, and has not returned. The Tribunal considers that the applicant is not a person of interest to anyone in Fiji, thus he does not have a real chance of serious harm or a real risk of significant harm of disappearing for this reason.
The Tribunal finds that the applicant’s claimed fear of harm is not made out, that he does not have a real chance of serious harm or a real risk of significant harm for this reason.
The Tribunal has considered relevant country information regarding Fiji, including the most recent DFAT country on Fiji from April 2015. Relevantly this document outlines the entry and exit procedures from Fiji. The Tribunal raised this information with the applicant at the hearing, though he stated he would not be returning to Fiji.
Exit and Entry Procedures
5.33 A valid travel document and appropriate entry visa for the intended destination is required for entry and exit to and from Fiji. The Fijian Department of Immigration website maintains up to date information on Immigration and Citizenship requirements ( In addition, Airports Fiji Limited maintains an up to date website which includes border control requirements and processes (
5.34 The Passport Division of the Ministry of Immigration is responsible for the determination and issuance of Fiji passports to Fiji Citizens under the Fiji Passport Act 2002. Fiji Passports are issued to those who have Fiji citizenship through birth, registration and naturalization.
5.35 Fijian Nationals who have lost, or do not have a Fijian passport must apply for a Certificate of Identity (a one-way travel document into Fiji only) at a Fijian embassy or consulate abroad. Fiji Embassy and consulate services are available at the following website (
5.36 An exception to the Certificate of Identity one way travel requirement was made when Fiji ran out of passports (this was experienced in 2012 and 2014) and Certificates of Identity were used for both outbound and inbound travel.
5.37 To be issued a Certificate of Identity applicants must provide;
·a police event report and a statutory declaration signed and stamped by a Justice of Peace (JP) explaining the event leading to loss/theft/damage; and
·other required documentation including a copy of birth certificate, marriage certificate, and name change certificate.
5.38 Upon arrival in Fiji, border officials check the details of the Certificate of Identity, confirm bona fides, register the document number, name and date of birth and advise that the document is not valid for further travel. The document is also seized by Immigration officials at the border and the bearer is required to go to Immigration and apply for a new passport.
5.39 For Fijian Citizens returning on their Fijian Passport, the border official checks and registers the passport number, name and date of birth of the bearer.
5.40 All inbound and outbound passengers (including Fijians) are checked against the Oracle system, which includes a ‘Stop Watch’ List (including, for example, entries based on court orders to stop departure, or alerts from Customs if the passenger has outstanding tax debts).
5.41 In addition to the Oracle system, Fiji Immigration Services and Border Security have installed an Integrated Border Management System (IBMS). IBMS integrates with digital and biometric passport systems compatible with International Civil Organisation (ICAO) standards to enhance the level of security at the border. It is also compatible with the Australian Advanced Passenger Information System and Advanced Passenger Processing applications that advance passenger lists to airlines while conducting watch list processing.
As a person born in Fiji but who does not have a Fijian passport, the applicant is entitled to a Fijian Certificate of Identity. This would permit the applicant to enter Fiji. The Tribunal finds that the applicant would be able to enter Fiji.
The DFAT report discusses the present situation in Fiji. While it acknowledges that there are some challenges to the human rights framework, including election issues, the report determines that Fiji is a generally stable and secure, with security services that are well resourced and maintain effective control in the country[11]. Crime rates are moderate[12]. There is unemployment, but the economy is recovering from difficulties in the mid-2000s when there was political upheaval[13].
[11] 2.48
[12] 2.49
[13] 2.37
The Tribunal considers that the applicant has the capacity to support himself in Fiji. He has had a job in Australia in [a certain] industry, and as evidenced by the supporting letters from his employer, had become a valued and hard working employee[14]. Further, though the applicant does not have any immediate family, it would appear that there is a broader family network with whom his family in Australia is connected to, who would be able to provide some initial assistance for the applicant on return to Fiji. While the Tribunal accepts that the applicant does not want to return to Fiji, the Tribunal considers that he does have the connections and capacity to establish and support himself on return to Fiji, such that he will be able to subsist.
[14] AAT Folios 38-41
The Tribunal notes that the applicant has provided information regarding his personal circumstances that he has not divulged previously. It is evident that the applicant’s circumstances have been affected by the experience the applicant has had in 2002. The applicant has stated that he will not choose to return to Fiji. The Tribunal notes this submission however this is not an aspect which it can take into account, given its responsibility to determine the protection obligations Australia has. This may be something that the applicant could take up with the Minister pursuant to s417 of the Migration Act 1958.
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Stuart Webb
Member

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

[2016] AATA 1390

12 July 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction