1606586 (Refugee)

1606586 (Refugee) [2019] AATA 1399 (21 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606586
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Michael Hawkins
DATE:21 January 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 January 2019 at 7:41am

CATCHWORDS

REFUGEE – protection visa – Fiji – imputed political opinion – member of the British army – isolated assault of friend – no experience of harm in Fiji – applicant’s medical condition – adequate access to medical care – delay in applying for protection – sister’s wish for family to be reunited – unable to gain employment in his field – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

Kavun v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MZAFZ v MIBP (2016) FCA 1081
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA and Anor [1994] FCA 1105
Subramaniam v MIMA (1998) VG310
Zhang v RRT & Anor [1997] FCA 423
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 8 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 6 January 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
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 Tribunal advised the applicant of the existence of a non-disclosure notice in the department files. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms:
The applicant is [an age] year old man from [Town 1], Fiji.
The applicant is of the Christian faith, is of Indigenous Fijian ethnicity, and speaks Fijian and English.
The applicant is married. His family live in Fiji.
The applicant completed his school education in Fiji from [date] to [date]. He completed various diploma and certificate qualifications including [in various disciplines] from [date] to [date]. He states he is a retired soldier.
The applicant arrived in Australia on [date] October 2015, under Passport No [deleted], issued [date] 2013 and expiring [date] 2023 pursuant to a [temporary visa] visa.
The applicant applied for a protection visa on 6 January 2016.
The applicant attended an interview with the delegate on 1 April 2016. He has not provided any additional information in support of his claims prior to the decision by the delegate or prior to this hearing.
Claims:
The applicant claims he was a member of the British Army from 2005 until he took voluntary redundancy in [year].
The applicant claims that he decided to return to Fiji for the Christmas holidays in 2006. He was accompanied by a friend who was a fellow member of the British Army. He claims that when they were back in Fiji, his friend was taken by the Fijian Army to [Barracks 1] in [Town 1] and was interrogated and beaten. His friend was asked whether he was a member of the British Army and when he responded yes, he was beaten.
The applicant claims that he then realised that most soldiers in the Fijian Army hated Fijians in the British Army.
The applicant claims that when he returned to Fiji in [year], he learned that there were reports that an ex-British Army soldier was involved in a rebel organisation formed up in the west side of Fiji and that ex-British Army soldiers were training the rebels.
The applicant claims that as an ex-British Army soldier, his life is at risk.
The applicant claimed that he did not know what would happen to him if he returned to Fiji and he did not know whether he would be safe.
The applicant claimed he could not relocate within Fiji as it is a small island and he would be easily found.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicant’s protection visa application form completed and signed on 27 December 2015, lodged on 6 January 2016 (“visa application”);
·The applicant’s identity documents being a certified copy of passport;
·The protection visa decision record (‘delegate’s decision record’) of 8 April 2016;
·The review application form which did include a copy of the delegate’s decision record;
·Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on Fiji, published on 27 September 2017.
Country of reference / receiving country
The applicant claims to be a Fiji national. Based on the copy of his passport provided to the Department of Immigration and Border Security (The Department) by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is his country of nationality and also his receiving country for the purposes of s.5H(1) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).
Hearing:
The applicant attended the hearing on 8 January 2019. The hearing was conducted in the English language. The applicant was accompanied by two witnesses and his partner as a support person.
The Tribunal asked the applicant about the completion of the Protection Visa Application Form. The applicant confirmed that he completed the form himself and that it had been signed by him.
The applicant advised the Tribunal that he was now divorced. He confirmed that he had married in [year] but divorced in [year]. He confirmed that he has no children.
The Tribunal read to the applicant a summary of his protection claims as set out in paragraphs 18 – 24 above, which had been summarised in the delegate’s decision. The Tribunal asked the applicant whether the claims were accurate and complete. The applicant confirmed that they were.
The Tribunal advised the applicant of the existence of a non-disclosure notice in the department files.
s.438 Certificate – department file:
A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that disclosure of information held at folios 60 and 71 of the department file would be contrary to the public interest because it contains information relating to an internal working document and business affairs.
A copy of the Certificate was provided to the applicant.
The Tribunal has considered the material identified in the certificates and considers the certificate is not valid. In MZAFZ v MIBP, the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were 'internal working documents'. This was held never to have been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words 'internal working documents' disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.
The applicant did not disagree with the Tribunal’s finding.
The information held at folios 60 and 71 do nothing more than confirm applicant identification details and the latter is a checklist of disclosable documents. It contains no information which is relevant to the applicant’s claim for protection in Australia and has had no impact on the Tribunal’s decision in his case. The Tribunal has put no weight on those documents.
The applicant advised that he had additional information to provide to the Tribunal. He went on to advise that he presently had a [medical condition]. He wanted the Tribunal to understand that he may have [difficulties communicating]. He asked the Tribunal whether it would be appropriate for his sister to assist him if he experienced difficulties. The Tribunal confirmed that any of his witnesses or support person could assist him and strenuously advised the applicant that if he did not understand any question of the Tribunal, that he should immediately ask it to be restated or be asked in a different way and that he should request a break if needed.
The Tribunal asked the applicant why it had taken so long for him to make his Protection Visa Application after arriving in Australia. It noted that he had arrived in Australia in October 2015 but that he had not lodged his Protection Visa Application until January 2016. The applicant replied that he had been advised not to lodge his Protection Visa until just before his [temporary visa] expired.
The Tribunal asked the applicant who had provided this advice. He advised that it was his sister.
As the applicant’s sister was in the hearing room and had been sworn in as a witness, the Tribunal asked this sister to confirm that that was correct. She did confirm that she had told him that and added that she herself had been advised by a friend that it was not necessary to lodge a Protection Visa Application and obtain a Bridging Visa whilst the [temporary visa] was still current.
The Tribunal advised the applicant that any such delay is often a consideration that the Tribunal will take into account to determine whether the claims that the applicant has raised are genuine. It might put greater weight on claims that are made in a Protection Visa Application that has been lodged immediately upon arrival in Australia as opposed to claims that are lodged some time later. The Tribunal said that it would consider that response.
The Tribunal asked the applicant why he had joined the British Army instead of the Fijian Army. The applicant replied that life in Fiji was hard, so he decided to join the British Army in order to assist with supporting his father to support his family. The applicant gave no reason for not joining the Fijian Army. The Tribunal asked the applicant whether there was some financial advantage in joining the British Army over the Fijian Army. The applicant agreed that there was financial advantage to him in joining the British Army.
The applicant confirmed that he worked as [in a specific role] in the British Army and had done two tours of duty [overseas] whilst with the British Army.
The Tribunal asked the applicant to tell it about the circumstances leading up to the incident in 2006 involving the Fijian Army and his friend who was a member of the British Army, as mentioned in the applicant’s claims.
The applicant stated that he and two friends had been out for a night out. At the end of the evening, the three friends each took a separate cab home. He said that his two friends, being in separate cabs, were engaged in a lively telephone conversation whilst in the back seat of the cabs. He said that his two friends had been joking around and swearing at each other. The applicant said that apparently the cab driver who was driving his friend from the British Army took offence at what was being said and handed his friend into the Fijian Army at a roadside Army checkpoint. The applicant said that the cab driver had apparently interpreted the conversation as the two friends abusing the Fijian Army.
The applicant confirmed that his friend was taken into [Barracks 1] in [Town 1] and was beaten.
The Tribunal asked the applicant how long this friend was held by the Fijian Army. The applicant replied that he was held overnight.
The Tribunal asked the applicant how the friend managed to escape. He replied that his other friend who had been with them that night rang his father, who [held a senior role] in the Fijian Army. The father intervened and secured the friend’s release. The applicant said that his friend went to hospital and stayed in hospital for two days. Thereafter, they went back to the UK together. The applicant advised that his friend has remained in the UK to this day.
The Tribunal asked the applicant to confirm that it was then, in 2006, that he formed the view, as a result of this incident, that all Fijian soldiers disliked Fijians who were in the UK Army. The applicant did confirm that and confirmed the use of the word “dislike” over the word “hated”.
The Tribunal asked the applicant whether he had been back to Fiji on a number of occasions since 2006. The applicant replied that he had. The Tribunal asked whether he had been back 10 times since 2006. The applicant confirmed that that sounded right. The Tribunal asked whether anything had happened to the applicant on any of those visits. The applicant confirmed that nothing had happened to him on any of those visits.
The Tribunal confirmed that the applicant had returned to [Town 1] on each occasion. The applicant confirmed that he had returned to [Town 1] on each occasion.
The Tribunal confirmed that the applicant had returned to [Town 1] in [year] in June and did not depart until October [year]. The applicant confirmed that that was the case. The Tribunal asked the applicant whether anything had happened to him at all during that time he was in Fiji. The applicant confirmed that nothing had happened to him during that time.
The Tribunal asked the applicant whether it was during that time that he had discovered that the training that he had undertaken in [a specialised area] was going to be of no use to him in Fiji. The applicant confirmed that it was at that time that he learnt that his training would not get him a job in Fiji.
The Tribunal asked the applicant whether he had been working in Australia. The applicant confirmed that he had been and was working [in a role] in Australia. The Tribunal asked whether he was using his [specialised] training in Australia. The applicant confirmed he was not.
The Tribunal discussed its concerns with the applicant that whilst he was claiming that he feared returning to Fiji because all Fijian soldiers disliked Fijians in the British Army, he had nevertheless made 10 visits back to Fiji but had not suffered any harm. He had not been of interest to anyone in the Fijian Army on any of those visits and during the four months that he was there in 2015. The Tribunal suggested that it appeared to be more a case of the applicant being unable to get a job in his chosen field [which] has motivated him to come to Australia where he might be more successful.
The applicant replied that his coming to Australia was not about him getting work. He said that it was simply that nothing had changed in Fiji. Everything was still the same.
The Tribunal asked the applicant whether he was politically active in Fiji. The applicant replied that he had never been politically active. The Tribunal asked the applicant whether his religion was an issue to him. He said it was not.
The Tribunal asked the applicant about his claims relating to [Province 1]. The Tribunal noted that it was aware that an ex-British Army soldier has allegedly set up military training as part of a plan to form a separate Christian State. The Tribunal noted that it had been set up in [a part] of Fiji. The Tribunal asked the applicant how far that was from [Town 1]. He replied that it was about two hours west.
The Tribunal asked the applicant whether he had anything to do with that ex-British Army Rebel or the movement. He replied that he had not had any involvement at all. The Tribunal asked the applicant whether anyone in Fiji had enquired of him as to whether he was involved with it. The applicant replied that no one had asked him anything about it at all.
The Tribunal asked the applicant about whether he had a Visa to go to the United Kingdom. The applicant confirmed that he did not.

The Tribunal asked the applicant about his [medical condition]. It asked whether he was under medical treatment. The applicant replied that he was and that he had already had an operation on it. He said that he was due to have a second operation during this year.
The Tribunal asked the applicant whether he had any medical records in relation to his medical condition. The applicant read from a letter that explained his condition and also noted “Unfortunately, Fiji is not in a position to offer [treatment for this condition]”.
The Tribunal requested to view the letter. It noted it was a handwritten note from his medical practitioner dated 17 September 2018. It stated that the specialist had treated the applicant in January 2018 for his condition, and said that further treatment and follow up would take some time.
The Tribunal shared the following country information from the DFAT Report with the applicant.[1]
[1] Parargraphs 2.24 – 2.26 DFAT Report
Fiji’s life expectancy at birth is comparatively high at just over 70 years, reflecting higher than regional average health outcomes. The government provides generous public health services, including free primary and secondary health care. However, x-ray and other support services are not generally subsidised.
There are five main hospitals in Fiji, four of them State-funded institutions, while the fourth, Suva Private, is a commercial facility. Two of the hospitals are in Suva (Colonial War Memorial Hospital and Suva Private), one in Lautoka, with two smaller hospitals in Nadi and Sigatoka. The level of services offered varies greatly between hospitals, and in general there are very few options for serious emergency care. A summary of the services offered is as follows.
·Colonial War Memorial Hospital (CWM), Suva, is the major public hospital and a teaching hospital. As of 2016, it employed 163 doctors and had 473 beds, but the facilities are very old. Most specialities are represented, but in many fields there is only one specialist. It has an intensive care unit (ICU), coronary care unit (CCU), neonatal intensive care unit (NICU), paediatric intensive care unit (PICU) and a burns unit. Dialysis is available at the adjacent Kidney Foundation, but is restricted to reversible causes of disease. The hospital has an MRI scanner (the only one in Fiji) and a CT scanner, but does not have an operational computerised patient record system. The single cardiac catheter lab hosts visiting specialists from Australia and elsewhere, who perform monthly lists and assist in training the only local interventional cardiologist.
·Suva Private Hospital, now sixteen years old, is the only significant private hospital in Fiji. It has 40 beds and runs at about 50-60 per cent occupancy. Visiting specialists, including a paediatrician, cardiologist, general physicians, general surgeons, orthopaedic surgeon, two obstetricians and gynaecologists, and a visiting psychiatrist, regularly attend. Digital x-ray and quality ultrasound are available. Ophthalmologists are shared with the Pacific Eye Hospital. Some services are shared with CWM, such as MRI and cardiac catheter services.
·Lautoka Hospital is the main public hospital in the west of Viti Levu, to which serious cases are referred to by the other hospitals in the tourist precincts. It has four main sections including medicine, surgery, obstetrics and gynaecology, and paediatrics. The hospital has a basic NICU but limited adult ICU with only two ventilators available, and a small CCU. In 2016, the availability of only one anaesthetist at the hospital limited the number of operations.
·Nadi Hospital is a smaller hospital known as a feeder hospital to Lautoka. Only 11 doctors are based here, all of whom are general practitioners (GP), with no specialists in emergency medicine or anaesthetics. There is a small CCU, but no ICU nor ventilators. The operating theatre is normally locked unless a surgical flying-squad is ever required from Lautoka.
·Sigatoka Hospital is a smaller local hospital in the tourist precinct staffed by seven GPs. It can provide basic level emergency service, transfers all serious cases as there is no specialist or surgical team presence. It does, however, have a new antenatal and labour ward, which provides good services for local women and babies.
Fiji has an estimated 2.1 hospital beds per 1,000 population and spent approximately three per cent of its GDP on health in 2014. These figures are comparable to regional averages. Due to the complexity of inter-island transportation, access to health care services in rural areas can be a challenge. Some contacts reported more difficulty for lesbian, gay, transgender, bisexual, transgender and intersex (LGBTI) people in accessing health services. There were also anecdotal reports of Indo-Fijians waiting longer periods of time at public hospitals when indigenous nurses were present; however DFAT was unable to independently verify these reports.
The Tribunal took evidence from the applicant’s two witnesses.
The first witness was [occupation details deleted]. He had previously spent 20 years in [a specialised role]. He had been a citizen of Australia since 1995. Essentially, the witness was a character witness for the applicant. He said that he had known of the applicant’s sister, aunts and uncles and knew them very well and for a long period before he met the applicant.
The witness said that he first met the applicant in 2015. He noted that he was a healthy and fit man and that young people looked up to him. He said that the applicant was a member of the local community church. He said that he is a caring and selfless person. The witness said that the applicant met his current partner through the church. He said he was a strong Christian and recommended the applicant would make a strong citizen in Australia. The witness went on to say that many Fijians held general fears about what was happening in Fiji. He said that he himself thought carefully about whether he ought return to Fiji for a holiday.
The Tribunal explained to the witness and to the applicant that the Tribunal had to consider whether a risk is one faced by the population generally or one faced by the applicant personally.
The Tribunal then spoke with the applicant’s sister.
The witness stated that she had sponsored the applicant’s [temporary visa]. She said that it was she who advised the applicant to get a Protection Visa. She said that she herself was the recipient of a Protection Visa to come to Australia as her husband was a [in a certain role] in Fiji in 2010. She said that she became a citizen from 2015.
She said she went back to Fiji in 2015. She said that everything remains the same in Fiji.
The witness went on to state that she encouraged the applicant to come to Australia. She said that she had to talk him in to coming to Australia. She said that she is worried about her family. She said that since her father had died, she had assumed the responsibility, as the older sister, of the leader of the family. She noted that she has also brought her sister to Australia, who is also seeking a Protection Visa.
The Tribunal asked the witness about whether their mother was living. The witness stated that her mother continued to live in Fiji. The Tribunal asked whether there was any other family in Fiji. The witness replied that her mother has two uncles and family who still live in Fiji.
The Tribunal then asked the applicant one last question. It restated all of its concerns that notwithstanding his view that all Fijian soldiers disliked Fijians who were members of the British Army, he had nevertheless returned to Fiji on 10 separate occasions and his last visit was for a sustained period of four months. The Tribunal also noted that the applicant had never suffered any harm and that no Fijian Army members had shown any interest in him on any of those occasions. It also noted that he was not involved in [Province 1] movement and had never been questioned in relation to it. The Tribunal asked the applicant, bearing all of that information in mind, why does he believe he will be harmed if he returns to Fiji. The applicant replied that nothing has changed in Fiji. The political situation hasn’t changed. He believes he is in danger.
The Tribunal shared the following Country Information with the applicant.
2014 elections and general economic and social conditions
Country information before the Tribunal indicates that general elections held on 17 September 2014, produced Fiji’s first democratically elected government since the military coup in 2006. The Fiji Election Commission rejected all allegations of "corrupt and unlawful practices," and a 90-member Multinational Observers Group confirmed that the elections were free and fair[2]. Voter turnout was 84 percent. Fewer than 4,000 of the 500,000 votes cast were invalidated. There were no reports of violence or intimidation[3]. On 22 September 2014, J. V. Bainimarama of the Fiji First party, who had served as interim Prime Minister, took office with a pledge to be "the Prime Minister of all Fijians, for all Fijians."
[2] >
The Freedom in the World 2015 – Fiji[4] report, published by Freedom House on 15 April 2015, states that citizens of Fiji enjoy broad freedom to travel, live, work, and seek education inside and outside the country. Citizens can freely own property and establish businesses, and Fiji's economy has recovered to some extent from the global economic recession and general atmosphere of uncertainty under the interim government.
Freedom of speech and political opinion
[4]
The Freedom in the World 2015 – Fiji[5] report, confirms that the interim government imposed severe restrictions on freedom of assembly and association, but states that these were gradually relaxed in the two years leading up to the general election. Police permits were still required for public gatherings and protests, but there were no reports of denials or last minute orders to cancel events in 2014, as opposed to previous years.
[5]
The same report states that there were no confirmed reports of government restrictions on private discussion of political matters or other sensitive topics in 2014. Personal blogs and other forms of social media, both for and against the interim government, operated with relative freedom, unlike traditional media.
The DFAT Country Report for Fiji[6] provides the following advice with regard to persons known or perceived to hold anti-government political opinions in Fiji:
Fiji’s Constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
Credible sources reported an increase in self-censorship by members of civil society on political issues. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.
A range of opposition political parties contested the 2014 elections. Most representatives of opposition political parties have told DFAT that police and military routinely monitored and followed them during the campaign. Some reported continuing monitoring in 2017, intensifying in the lead up to the 2018 election. Monitoring was in some cases relatively open and cordial (for example, a polite telephone call enquiring after the subject’s movements and plans), sometimes annoying (for example, a vehicle parked outside the home), and sometimes intimidating (for example, overt police presence at a political gathering).
Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.
[6] DFAT Report, Paragraphs 3.38, 3.41, 3.42 and 3.46
The DFAT advice indicates that there were no known cases of unsuccessful protection visa applicants or persons returning from periods abroad being targeted by the regime, unless they fell into the categories of persons described above. In fact, that was his sister’s own experience as well when she had returned in 2015, being the holder of a Protection Visa.
In fact, it appeared that the environment for the public expression of political opinion in late 2014 and moving into the 2018 elections was more open than in previous years. It noted that public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open and social media is active.
There did not appear to be any Country Information supporting the contention that ex-British Army soldiers were at risk of reprisals from Fijian Army soldiers.
The Tribunal concluded by asking the applicant whether he had anything else to add. The applicant responded by thanking the Australian Government for saving his life in providing medical assistance to assist him with surgery.
Assessment of Claims and evidence, and findings:
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 an 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. 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 (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 was impressed by the applicant’s apparent honesty – he was honest about his uncertainty, in circumstances where it may have been possible to embellish his facts to a higher degree of certainty about his opinions and fears.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal discussed at length with the applicant the reason why he had not made his Protection Visa Application immediately upon arriving in Australia and, in fact, waited three months before doing so. The applicant replied that he had taken advice from his sister who believed that he did not need to file a Protection Visa Application and seek a Bridging Visa whilst he had a valid [temporary visa].
The Tribunal discussed the same with the applicant’s sister who confirmed that she had given the applicant that advice.
The Tribunal formed the view that the applicant is heavily persuaded by his sister which will be considered again later in this decision. The Tribunal accepts the applicant’s explanation for the delay in making the Protection Visa Application.
Having considered the supporting evidence lodged by the applicant in conjunction with his [temporary visa] Application, the Tribunal accepts that the applicant was employed by the British Army as claimed.
The Tribunal also accepts that the applicant no longer holds a United Kingdom Residency Permit.
The Tribunal also accepts that the applicant has family continuing to live in [Town 1] and one sister who is an Australian citizen living in [an Australian city]. The Tribunal accepts that the applicant was married in 2015 but is now divorced.
The applicant claims that he fears members of the Fijian Army whom he claims dislike Fijians who are members of the British Army. The applicant claims this fear arose as a result of a set of consequences relating to he and his friend when they visited Fiji in 2006.
The Tribunal accepts as credible the circumstances of the assault upon his friend in 2006. The Tribunal accepts that his friend was assaulted and was hospitalised as a consequence.
The Tribunal also accepts that the assault upon the applicant’s friend was a consequence of the behaviour of his friend in a telephone conversation with another friend.
The Tribunal accepts that the applicant has not suffered any harm at any time during any of his visits to Fiji.
Accordingly, the Tribunal accepts that the assault occasioned on his friend was an isolated event and not one motivated by any general dislike or otherwise of Fijians who are members of the British Army by members of the Fijian Army. The assault was, sadly, a response to a specific set of circumstances, misinterpreted as they were.
This finding is supported by the absence of any Country Information that supports any contention that ex-British Army soldiers are at risk of reprisals from Fijian Army soldiers.
The Tribunal noted in particular the applicant’s most recent return to Fiji in 2015 wherein he stayed for a period of four months. During that period of four months, the applicant did not experience any harm nor was involved in any incident at all.
The Tribunal finds that the applicant’s claim to fear harm from Fijian soldiers by reason that he is a Fijian who was employed by the British Army, is not well founded.
The applicant also alluded in his claims to the establishment of a rebel organisation which has been formed in the west of Fiji and that ex-British Army soldiers were training the rebels. He made no specific claim in relation to that organisation.
The Tribunal discussed this situation with the applicant at length. The applicant confirmed that this organisation was being set-up in the west of Fiji which was some two hours or more from [Town 1] where he lived.

The applicant confirmed that he had no involvement with the rebel organisation.
The applicant confirmed that he had not been approached in relation to the rebel organisation.
The applicant confirmed that no one had made any enquiry of him in Fiji as to whether he was involved with the rebel organisation.
The Tribunal is satisfied that the applicant has no involvement with the rebel organisation and has never been queried about it by anyone whilst he was in Fiji.
The Tribunal finds that the applicant has no fear of serious harm by reason of the existence of the rebel organisation in the west of Fiji.
The Tribunal noted the very sincere evidence of the second witness, being the applicant’s sister. The Tribunal sympathised with the applicant’s sister having concerns for her family in Fiji since their father had passed away.
The Tribunal sensed a strong desire of the applicant’s sister to have her family join her in Australia. This was made clear by the applicant’s sister when she stated that she has encouraged both her brother and her sister to come to Australia and to apply for Protection Visas. In fact, in discussing the extent of encouragement offered to her brother, the witness stated that she had to talk her brother in to coming to Australia. The Tribunal has concluded that it is more a case of the applicant’s sister wanting him to be in Australia than any need the applicant had to leave Fiji.
This evidence confirmed the Tribunal’s view that the applicant has no fear of any harm in Fiji, other than a generalised concern that nothing has changed in Fiji in the years he has been absent.
The Tribunal discussed at length the applicant’s current medical condition.
The Tribunal noted that the applicant had made no claim for protection by reason of it, rather offering it as an explanation for seeking his sister’s assistance in responding to questions.
Nevertheless, the Tribunal has considered the applicant’s medical condition in the context of a claim for protection, being whether the denial of access to the medical assistance he requires could threaten the applicant’s life.
The Tribunal noted the advice of the applicant’s medical practitioner who believed that Fiji was not in a position to offer endovascular treatment of [a medical condition].
The Tribunal considered the applicant’s evidence that he has already been operated on in relation to [a medical condition] in January 2018. It noted the applicant’s evidence that he is awaiting a further appointment for further assessment to determine whether a further operation is required.
There appears to be no suggestion at this time that the applicant’s condition is terminal, nor any certainty that the applicant may require further surgical intervention.
The Tribunal discussed Country Information with the applicant and, in particular, the services available at two hospitals in Suva. It appears that the Colonial War Memorial Hospital in Suva has the capacity to offer sophisticated medical care and has an MRI scanner. The Tribunal noted that the hospital also hosts visiting specialists from Australia and elsewhere who perform monthly lists.
Accordingly, on the basis of the Country Information available and evidence considered, the Tribunal is of the view that it is not impossible for the applicant to obtain the medical assistance he may require, if required, in Fiji.
For the reasons stated above, the Tribunal finds that the applicant has no fear of serious harm in Fiji. It accepts that he has not suffered any form of harm in the past and does not risk suffering any form of harm in the future.
The Tribunal is not satisfied that there is a real chance that the applicant will be at risk of serious harm for reason of race, religion, nationality, membership of a particular social group or political opinion if he returns to Fiji now or in the reasonably foreseeable future.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Fiji. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and country information, as well as having considered the personal circumstances of the applicant as contained in his application, and taken into account the above findings of fact and the Tribunal’s view of the applicant’s future conduct, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.
Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk that he will suffer significant harm.
Overall conclusion:
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).
Ministerial Intervention
The applicant’s sister expressed general concerns for her brother and her sister if either had to return to Fiji. Although the applicant or his sister did not expressly ask that the Tribunal consider referral of the matter to the Minister, the Tribunal has considered that.
The situation of the applicant and his sisters is deserving of sympathy. The family seeks to be united and the applicant has had health issues that have been resolved whilst he has been in Australia. Having considered all of the relevant factors individually and cumulatively, the Tribunal considers this is not a case where it would be appropriate for the Tribunal to make a referral to the Minister. The applicant himself can, and possibly should, make a request for intervention directly to the Minister, particularly if more medical treatment is an option and it could be more easily attained in Australia.
Decision:
The Tribunal affirms the decision not to grant the applicant a protection visa.
Michael Hawkins
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.
…

[2019] AATA 1399

21 January 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction