1606875 (Refugee)

[2018] AATA 4579

1606875 (Refugee) [2018] AATA 4579 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606875

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:5 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 November 2018 at 1:58pm

CATCHWORDS
REFUGEE – protection visa – Fiji – fear of harm – mistreatment by the military – no evidence of military harassment – oral evidence – seeking to live and work in Australia – poor economic prospects in Fiji – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth) Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 440 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age] year old man from Fiji. He arrived in Australia on 24 September 2015 on a [temporary] visa. He applied for a protection (class XA) visa on 5 January 2016. On 22 April 2016, a delegate of the Minister for Immigration refused the application pursuant to s.65 of the Act.

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

3. The applicant attended a Tribunal hearing on 5 November 2018.

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

   CRITERIA FOR A PROTECTION VISA

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

6. The applicant wrote in his protection visa application that he fears the Fiji military might harm him because the government has been accusing Fijians in Australia of drumming up anti-government sentiment. At hearing, the applicant said that he does not really fear harm in Fiji, but he would like to stay in Australia for the betterment of his family.

   Background

7. The applicant is a [age] year old man from a village in [Fiji]. He is a [Christian], an ethnic Fijian, and a speaker of Fijian and English.

8. The applicant attended school in [Province 1] from [date] to [date]. He wrote on his application for that he worked as [an occupation] in [an organisation] in Suva from 1994 to May 2006. He was unemployed from this time, but worked as a volunteer at the church. At the Department interview, he said that he had worked as [an Occupation 1] for 15 years.

9. The applicant married in 1994. According to his protection visa application, his wife and [children] currently live in the village. At hearing, the applicant said that his wife has made multiple trips to Australia, and had arrived the previous Monday for a stay of some six weeks. He said that he has [several] children. The oldest child is a [age] year old son, who is currently working in Australia. The second child is a [age] year old son who works as [an Occupation 1] in the village. The applicant has a male cousin in [Australian city 1].

10. The applicant holds a Fiji passport issued in [date] 2012, which he presented at the Tribunal hearing. The applicant came to Australia in September 2015 to attend [an event]. As noted above, he said that his oldest son is currently in Australia (it appears that he may also have lodged a protection visa application), and his wife recently arrived for a six week visit.

    Evidence

11. The evidence before the Tribunal includes the following relevant material:

    §  The applicant’s protection visa application form, lodged on 5 January 2016. It includes brief handwritten comments indicating why he seeks protection.

    §  Identity document: The applicant provided a partial copy of his Fiji passport with the application form, and presented the original at hearing.

    §  A letter dated [December] 2015, from [a church pastor] provides a general character reference and states that the applicant fears returning to Fiji due to its ongoing political instability and poor governance.

    §  The applicant attended a protection visa interview (‘Department interview’) on 20 April 2016, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 22 April 2014.

    §  Review application form; the applicant provided a copy of the delegate’s decision with his application.

12. The applicant appeared before the Tribunal on 5 November 2018, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Fijian and English language, but the applicant gave most of his evidence in English, in which he is proficient. The applicant is unrepresented in this matter. Although he formally recorded Ms Mereoni (Oni) Kirwin as his authorised recipient, he has now updated his contact details to indicate that she no longer acts on his behalf. The applicant did not present any witnesses at hearing.

    Receiving country

13. The applicant claims that he is a national of Fiji. He presented his Fiji passport; he speaks the national language Fijian; and he is familiar with that country. There is nothing to suggest that he has different, or additional, nationality. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Fiji national. Fiji is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Claims about fear of the Fiji military

14. The protection visa application form includes the following statement concerning the applicant’s (claimed) fears of harm.

    Why did you leave [Fiji]? I had left after being invited to attend [an event] in [Australian city 1].

    What do you think will happen to you if you return to [Fiji]? I fear I could be harmed.

    Did you experience harm in Fiji? No.

    Did you move, or try to move, to another part of [Fiji] to seek safety? It would not have made any difference if I had resettled in another part of the country.

    Do you think you will be harmed if you return to [Fiji]? I could face the likelihood of being mistreated by the military because Fijians who are in Australia have been accused by the Fiji Government of drumming up anti-government sentiments.

    Do you think the authorities of [Fiji] can and will protect you if you go back? The same people I fear could mistreat me are the ones currently in authority.

    Do you think you will be able to relocate within [Fiji]? No sense in relocating. Fiji is a small country and relocating would never make any difference.

15. At the Department interview, salient points of which are included in the delegate’s decision record (attached to the review application), the applicant voided concerns about military harassment, as they target civilians who speak out against the government. In response to further questions, he said that the military has never harassed him in the past, although during his work as [an Occupation 1] over 15 years, [there was one incident]. He also told the delegate that he had never spoke out against the government.

16. At hearing, the applicant said that his protection claims were not truthful. [Information deleted]

17. The Tribunal explored with the applicant whether he had any residual fears or concerns about his attendance at PISAI meetings. It noted, while Ms Kirwin is reportedly banned from entering Fiji, there is no evidence to suggest that the Fiji authorities have any adverse interest in people in Australia who may have attended her meetings. It drew on the following advice in the Department of Foreign Affairs and Trade’s latest country report on Fiji[1]:

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

    [1] DFAT, Country Information Report – Fiji, 27 September 2017

18. The applicant noted this information without substantive comment.

19. Based on the applicant’s advice at hearing, the Tribunal finds that he has not experienced harm at the hands of the Fiji military or other authorities, that individually or cumulatively, involves persecution (serious harm) or significant harm.

20. The Tribunal accepts that the applicant has attended several meetings with Ms Kirwin’s group PISAI; that his purpose was to seek the company of Fijians in similar situations and learn about options to remain in Australia; that he made donations on several occasions; and that Ms Kirwin (or her associates) helped him complete his protection visa application form. In light of the discussion at hearing, the Tribunal accepts that the applicant considers that Ms Kirwin duped him. It finds that he does not have any genuine fear that his limited contact with Mr Kirwin and PISAI make him a person of adverse interest to the Fiji authorities.

    Personal and family circumstances 

21. The applicant stated that he does not need refugee protection or complementary protection, but rather seeks an opportunity for him to live and work in Australia, to address their poverty in Fiji. He explained that he is from the highlands of [Province 1]; his father died while he was young; and his mother struggled to meet her [children’s] basic needs, by basket-weaving and similar handicrafts. She died in 1987, and the applicant and his sisters lacked even a house. They subsisted by selling coconuts and crabs. The applicant currently has his own family and children, and they live in very basic conditions. He said that the opportunity to work in Australia has brought great changes to their life. His oldest son, aged [age], is now also working in Australia. And his wife is again visiting.

22. The applicant said that, while he has strong ties with Fiji, he hopes to be able to stay and work here, for the betterment of his family. He would ideally like to have them join him in Australia. The Tribunal accepts that he is concerned by his and his family’s economic prospects and living conditions in Fiji, compared to Australia.

    ASSESSMENT: REFUGEE CRITERION

23. The Tribunal now assesses whether, in light of the above findings of fact, its views on his future conduct and any relevant country information, there is a real chance of the applicant experiencing serious harm amounting to persecution, for any of the reasons set out in s.5J(1), if he returns to Fiji.

24. The Tribunal finds that the applicant has no genuine fears that the Fiji authorities, including the military, will target him if he returns to Fiji. It relies on his advice at the start of the hearing that the claims in his protection visa application are wrong, and his confirmation that he does not have any related claims.

25. The Tribunal accepts that the applicant had contacts with Ms Kirwin and PISAI in Australia. Given that he is unrepresented, it explored whether he had any residual concerns that he might be of adverse interest to the Fiji authorities as a result of associating with Ms Kirwin or having applied for protection. The applicant voiced his dissatisfaction that Ms Kirwin encouraged him and others to apply for protection; that they had to pay to join PISAI and to make ‘donations’; and that he believes that she had been ‘lying’. In any event, in light of DFAT’s advice and in the absence of any other evidence, the Tribunal finds that there is no real chance that the applicant’s limited (and now discontinued) contacts with Ms Kirwin and PISAI will make him a person of adverse interest to the Fiji authorities, and put him at risk of being subject to serious harm (for instance, due to an imputed political opinion).

26. The Tribunal accepts that the applicant is concerned about his family’s economic prospects in Fiji. He referred in passing to things such as employment opportunities, wage levels, the cost of living and lack of infrastructure, all of which contributed to poor living standards. However, the Tribunal does not accept that these living conditions involve ‘serious harm to the person’, or that they result from ‘systematic and discriminatory conduct’. Also, it cannot be said that one or more of the ground in s.5J(1) is the essential and significant reason for these conditions. These concerns, therefore, do not amount to a well-founded fear of persecution: s.5J(1), s.5J(4).

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

28. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

29. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.

30. In light of the findings of fact above, the Tribunal finds that the applicant does not genuinely fear ‘significant harm’ for the reasons stated in his protection visa application. Furthermore, as discussed above, there is no persuasive evidence to indicate that the applicant would face a risk of significant harm arising from his association with Ms Kirwin and PISAI, or for having sought protection in Australia. The Tribunal accepts that the applicant wishes to remain in Australia, rather than face the lower living standards prevalent in Fiji. However, it is not satisfied that such lower living standards amount to him being subjected to ‘significant harm’ as defined in s.36(2A). First, the harm does not involve the death penalty or arbitrary loss of life, or the level of pain and suffering described in the definitions of ‘torture, ‘degrading treatment or punishment’, or ‘cruel or inhuman or degrading treatment or punishment’. Second, such living conditions do not involve any act or omission that intentionally inflict (the requisite degree of) harm on him. As such, it is not necessary for the Tribunal to address whether s.36(2B)(c) applies (where there is a real risk of significant harm, but it is one faced by the population generally).

31. In sum, the Tribunal finds that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty.

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

    CONCLUSION

33. 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).

34. 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).

35. 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

36. The Tribunal affirms the decision not to grant the applicant a protection visa.

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

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

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

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

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

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

    Mandatory considerations

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