1609490 (Refugee)

1609490 (Refugee) [2019] AATA 1121 (29 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609490
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Gabrielle Cullen
DATE:29 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 April 2019 at 9:29am

CATCHWORDS

REFUGEE – protection visa – Fiji – religion – Christian – holding regular religious meetings in SODELPHA location – imputed opinion in opposition to government – military and police intervention– failed asylum seeker – not a credible witness – review under decision affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
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 20 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who is a citizen of Fiji claims to fear return on the basis that she will be unable to practise her religion, as she is suspected of being politically opposed to the government due to regularly holding religious meetings at her home. She fears if she returns to Fiji she will face military and police intervention at her religious meetings as she claims happened to her previously.
The applicant first travelled to Australia [in] March 2014 on a [temporary] visa and departed [in] June 2014. She again travelled to Australia [in] November 2014 and departed [in] January 2015. She arrived in Australia on a further [temporary] visa [in] July 2015 and applied for a protection visa on 30 March 2016.
The applicant attended an interview at the Department on 17 June 2016. The Tribunal has listened to a recording of the interview and where relevant the evidence from that interview appears in this decision. The delegate refused to grant the visa on 25 October 2016 as he did not accept as true her claimed incidents of harm. He found that as the applicant was not a person of interest to the authorities and did not have a high political profile, nor was part of any group or politically motivated she would not face harm on return to Fiji.
The applicant appeared before the Tribunal on 2 April 2019 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. Her representative attended the hearing. The applicant was given until 9 April 2019 to provide further information and responses to s.424AA matters raised.
The issues to be considered in this case are as follows:
·Is the applicant credible as to her claims?
·Does the applicant have a well-founded fear of persecution in relation to Fiji and meet the refugee protection provisions of the Act?
·Does she meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the Appendix.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application dated 30 March 2016, identity documents and statement regarding her claims for protection.
·Oral evidence of the applicant provided at the Department interview held on 17 June 2016 and the Tribunal hearing held on 2 April 2019.
·Submission from the applicant’s representative received 8 December 2016 outlining relevant country information in Fiji.
·Submission from the applicant’s representative received 9 April 2019.
·Department of Foreign Affairs and Trade (DFAT), Country Report Fiji, 27 September 2017 and Country Report Fiji, 14 April 2015.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims
The applicant claims in a statement attached to her protection visa application that the military twice forcefully entered her home in July 2014 and on a third occasion [in] August 2014. She claims they are usually in their area but they came into their home on three occasions and the third occasion was the big one. She claims initially they came in and asked about their meeting and they explained that they had church meetings [and] she claims the military told them it was illegal to have such meetings but they replied that it was just a church meeting. She claims they did not believe them and thought they were having political meetings opposed to the government. She claims when they first came they were ok; they were polite and telling them it’s ok but things became worse later. She claims they live close to a village which has mostly SDL/SODELPA supporters and only a couple of houses voted for the Fiji First party. She claims Bainimarama has nasty behaviour towards people that offend him and he only helps areas that voted for him. She claims he takes action against people he believes are against him.
She claims they were just worshipping and then the military told them a couple of times to stop having the meetings. She claims they could not stop having the meetings as they are religious people and they decided they would keep having their religious meetings. She claims she and her husband are elders in the group.
She claims in August 2014 they broke the door. She claims they stormed into their house, told everyone to leave and not to have the meeting. She claims they pushed her husband and when [her] son-in-law tried to step in they grabbed him by the collar and shoved him away. She claims they were very upset and they were trying to tell the military it was just their regular [religious] meeting. She claims the military were yelling at them, telling them it is a cover-up for something else. She claims the military told them they all had to get out of the house, she started crying and [Daughter 1] was there as well. She claims they all freaked out and were scared and the military had guns. She claims all the children and ladies were crying and she and her husband told everyone to go home and pray about the situation. She claims the military warned them not to have the meetings again or there will be consequences. She claims she and her husband talked about it and made a vow they would never give up what they were doing in the church. She claims they made up their mind that they would continue to do what they were doing. She claims they still did it then but it was close to the election.
She claims after the election the church conference was about to happen in Australia and when they travelled to Australia before they had been involved in a church that was the same as their church in Fiji. She claims on their previous trip she couldn’t wait to return to Fiji and tell the people about the church in Australia and that they were able to serve God without being harassed. She explains that even before they came into their home the military were always around making everyone nervous. She claims she returned to Fiji and returned to their church work. She said she thought there would be changes after the election but the military still kept track of everything that was going on in Fiji. She claims from their house they could see the military trucks going up and back.
She claims if she returns to Fiji she will continue to hold the religious meetings, as it is her belief and she and her husband promised each other that no matter what happened they will continue with the meetings.
She claims together with her husband she left Fiji [in] November 2014. She claims they were supposed to come with [Daughter 1] and son-in-law to the church conference but her daughter and son-in-law had work commitments. She said they came to Australia in November because of the conference and because they had liked the church in [City 1, Australia]. She claims they came to [City 2, Australia] but then her husband passed away and she took him home with [Daughter 1] back to Fiji in January 2015. She claims they had a ceremony and she stayed in Fiji for [a few] months but she was not doing so well. She claims she had resigned from her job and she managed to get some babysitting work and then she had a [medical condition]. She claims the doctor told her that her blood pressure was up. The doctor asked if she was taking her tablets and she said no, and he told her [this was the reason for her medical condition].
She claims she tried to get back into normal life in Fiji but saw her life going down in Fiji and her daughter thought it a good idea to come back to Australia where her husband had passed away.
She claims she still saw the military coming past their house but they never came in or bothered them again, they just kept watch. She claims they dress in civilian clothes and walk around, asking questions of the neighbours about what is going on. She claims the reason they did not come in was that the meetings were held elsewhere.
She claims she received help from the other families and the other families in the group decided to take the burden off her and to have the meetings at their places. She claims the military were aware that they continued their meetings and they could see them outside the house but they did not come in like before. She claims it is because they were having the meetings at other places but she knows that in the future they will come into their place again if she has the meetings herself, which she has to do because she and her husband promised each other they will do it.
She claims if she returns to Fiji she will continue to hold the religious meetings and the same thing will happen and they will try to break up the church. She claims it’s not because of the religious meetings but it’s because they believe they are plotting against the government. She claims the same thing happens all over Fiji. She claims they cannot practise their religion without military intervention.
At the Department interview held on 17 June 2016 the applicant reiterated her claims to fear return as she will be unable to practise her religion due to interference by the military as the military believed they were holding political meetings in opposition to the government at her home. She said it is because she is in an area with many SODELPA followers. She confirmed that she is not involved in politics. The delegate questioned whether she fears return and referred to her repeated return to Fiji. He raised with her independent information as to the widespread practice of Christianity in Fiji and questioned the truth of her claims.
The applicant’s representative in a submission dated 8 December 2016 submits that it has been difficult since the 2014 elections to garner information regarding the abuse of citizens. She refers to information from 2014 that indicates that Bainimarama continues to allow the military and police to have excessive powers and to prevent officers suffering any consequences for abuses of power. She refers to the Police Commissioner of Fiji resigning in 2015 citing military interference in policing, that Francis Keane a former navy commander with a history of violent offences has been installed as Corrections Commissioner. She refers to attacks on a legal practitioner who sided against the government, and that the Public Order decree continues to be in place and that the Fijian government has retained the right to torture. She claims there is a disconnection between the words of Bainimarama and his actions. She outlines a 2016 Fiji Human Rights report and 2014 Human Rights and Labour Report referring to the lack of rule of law in Fiji and that there is ongoing impunity for police and the military. She refers to country information from 2015 that notes that despite the introduction of a Constitution and Bill of Rights in 2015 freedom of expression, peaceful assembly and political representation continues to be marred and that civil and political rights are not well protected, also referring to a number of cases of ill treatment and torture.
She refers to information outlining the bashing of a senior songwriter who had a row with the PM Frank Bainimarama and reports from 2014 referring to police beatings and torture. She refers to information from 2015 which notes that since the 2006 coup interim regimes have dismantled the legal profession and rule of law in Fiji and despite a new Constitution and the 2014 election the rule of law has not yet been and will not be easily restored. She also submits further country information as to the impunity of Fiji’s military and police.
At the Tribunal hearing held on 2 April 2019 the applicant repeated her claim to fear return from the military if she holds religious meetings. She claims her situation is now worse as she no longer has a husband to protect her when the military come to the religious meetings. The Tribunal asked her why she came to Australia from March to June 2014, and she said her husband had just retired and they came for a holiday. As to why she came to Australia in November 2014 she said for a church conference. As to where she lived in Fiji she said up until November 2014 she lived in [Village 1] in [City 3] where she had lived for many years but when in Australia her daughter moved them out of the home. From January to July 2015 she lived with her [Daughter 2] [close to] where she used to live. She said when in Fiji she has always attended church on Sunday. She said she belongs to the COC network now called the International Network of Churches, similar to a Baptist. She said she and her husband were elders of the church and held religious meetings at their home [for one hour, once a week]. She said they there were for people in their area and they would sing and pray. She said she fears return as the military don’t allow church gatherings. She said church on Sunday is allowed but not the gatherings and their meetings were suspected of being political meetings in opposition to the government. She said it is because they are from a SODELPA area. As to the difficulties she faced, she referred to three times the military entered her home in April 2014. She said the first two times they were quite polite but told them they were not allowed to have the meetings. She said on the third occasion, which she confirmed on a number of occasions was [in] April 2014, they entered with guns, pushed her husband and son-in-law, then [Daughter 1] when she tried to intervene and told them not to have the gatherings again. She said they did not hold the meetings again as they were not allowed. The Tribunal raised a number of concerns as to her claims and questioned her credibility as to the difficulties she claims she faced. When it raised with her as a concern her delay in applying for a protection visa, she referred to a fear of return for applying for asylum and the Fijian government finding out. It raised with her information as to the treatment of practising Christians, those who apply for asylum in Australia and low-level political supporters. Where relevant these have been outlined below, together with the applicant’s responses.
In a submission received 9 April 2019 the applicant maintains the truthfulness of her claims. She apologises for the confusion about the dates as to visits by the Fijian military and reaffirms that her original statement was correct regarding those dates. She claims she became confused after discussing the matter with her daughter and son-in-law who were also present at these visits. She cannot state why she was confused beyond her tendency to defer to her son-in-law’s forcefulness of conviction. She states she was confused not dishonest. She apologises for confusion relating to other events referred to in her claims. She states that these matters relate to confusion not dishonesty. She supports her daughter and son-in-law’s claims in disagreeing with the DFAT Country Report Fiji, 27 September 2017 that implies that only high-profile people in Fiji are at a risk of harm. The submission refers to 3.41 of that report which notes that there has been an increase in self-censorship and public figures continue to tread carefully in their expression of their public opinion. The applicant asserts that other types of harm, including physical torture are inflicted on ordinary citizens by police and military forces. References were made to torture of citizens. The submission points to DFAT’s comments on the Methodist Church in Fiji and asserts that the pressure discussed in relation to the Methodists also extends to other religious groups, including her own. The submission asserts that the pressure alluded to is inherent in her fears over holding private religious meetings and that it was that pressure that caused the harm they have claimed to have happened in the past. The submission notes that there is a difference in how Fijian authorities react to public religious meetings and private ones and while DFAT assess the Methodists’ capacity to hold public meetings as unrestricted, it is silent on private meetings of Methodists or other Christian groups. The submission refers to comments where the Methodist Church has been pressured to distant itself from politics. The submission refers to past restrictions but says as at 2017 there are no restrictions on the church to hold public meetings.
The applicant also reiterates a claim she made to the Tribunal that she will be at additional risk and would be taken advantage of in Fiji due to her status as a woman without a husband. She claims she will be at greater risk of harm from police and military for this factor. She reiterates that as a church elder and due to a promise to her husband she feels obliged to continue holding meetings. She also wishes to adopt her daughter and son-in-law’s earlier submission to the Tribunal and repeats that submission.
This submission notes that the applicant continues to submit that Fiji is not safe for her and she is at risk of serious harm due to her religious activities and her imputed political opinion. The representative notes that they acknowledge that elections have occurred twice in Fiji in recent years but do not agree that the democratic process has resulted in a safe environment. She submits the incumbent Prime Minister, the police and military and current record of human rights continue to disturb the applicant. The representative refers to information from 2011 where the Australian government referred to Bainimarama’s regime as having a poor human rights record and credibility. She refers to the US State Department Report of 2015 that notes police and military abuse of persons in custody, restrictions on freedom of speech and other difficulties. The information also refers to the death in 2018 of Josua Lalauvaki who was allegedly beaten by police in Suva and although there had been an investigation nothing has happened. A report from 2018 from Amnesty International refers to the Fijian government needing to correct severe failings in the country’s human rights record and refers to the continued torture of people by the Fijian security forces, including the death of Josua Lalauvaki. A 2017 report by Amnesty International submitted refers to the government’s failure to ensure accountability for the torture and ill treatment of those detained and the restrictive legislation as to freedom of expression and peaceful assembly to stifle media. The information refers to the arrest of senior staff at the Fiji Times and a youth leader from the opposition SODELPA being detained for 48 hours after he carried placards calling for justice on torture cases.
Is the applicant credible as to her claims?

Having sighted a copy of the applicant’s identity documents, and on the basis of her evidence at hearing, the Tribunal accepts that the applicant is a national of Fiji for the purposes of s.36(2)(a) of the Act. For the purposes of s.36(2)(aa) the Tribunal accepts that Fiji is the receiving country.
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of her claims and evidence, particularly those she claims led her to leave Fiji and why she fears return, there are other aspects of her claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true. Specifically, the Tribunal accepts the following:
·The applicant was and is a practising Christian involved in [a named church] similar to a Baptist.
·She attended [a named church] in Fiji on Sundays and held religious meetings [at] her home, with her late husband, [Daughter 1] and [son-in-law]. The applicant and her husband were elders in the church.
·She is not now and never has been involved in politics in Fiji or Australia. The applicant has repeatedly stated this in written and oral evidence to the Department and Tribunal.
·She returned to Fiji [in] January 2015 with her daughter as her husband died while visiting Australia and they accompanied his body back to Fiji for burial.
However, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to the difficulties she claims she faced in Fiji and her claims as to why she fears return. It finds she did not face the difficulties she claims at the hands of the military in 2014 while holding religious meetings at her home as the military believed they were holding political meetings in opposition to the government and/or were supporters of SDL/SODELPA as they lived in an opposition area. For the reasons outlined below the Tribunal does not accept that the applicant was of any interest to the military, police or authorities, including being watched, harassed, being pushed around, having guns pointed at her or her family or being harmed at any of these religious meetings for any of the reasons she claims. It follows it does not accept she left Fiji in fear due to any harassment, intimidation or fear of further harm or that she fears return as a result of this harassment as she will continue to hold religious meetings on return.
Firstly, despite claiming she has sought protection in Australia as a result of the military harassment at the [meetings], the applicant has provided inconsistent evidence as to when the harassment occurred, when it started and the final event when the military entered the house, physically and verbally abusing her and her family as follows:
·She repeatedly claimed at hearing that the military came into their home on three occasions in April 2014. She confirmed at hearing that the three incidents when the military entered their home happened in April 2014, including the last occasion where the military verbally threatened her and her family and physically abused her husband and [son-in-law]. However as raised with her via s.424AA of the Act at the Tribunal hearing, the Department movement records indicate she was in Australia in April 2014, having travelled and resided in Australia from [March] 2014 [June] 2014.
·Her evidence at hearing that the three events occurred in April 2014 is inconsistent with her evidence in her statement attached to her protection visa application. In her statement she claims the military entered their home on two occasions in July 2014 and the final occasion when they entered with guns was [in] August 2014.
·Her evidence as to when the events occurred is inconsistent with that of her [Daughter 1] and [son-in-law] in their protection visa applications.[1] She claims they were present on the three occasions when the military entered her home in 2014. As raised with the applicant via s.424AA [Daughter 1] and [son] claimed in their initial statutory declaration dated 31 January 2016 and at hearing in March 2019 that the military came twice in April 2014 and then entered the applicant’s homes with guns and physically abused the family and threatened them [in] May 2014. However, in an amending statutory declaration dated 1 April 2016 they stated the military came twice in July 2014 and once in August 2014.
·At hearing she claimed that the first time she and her family were of interest to the military was in April 2014 when they entered her home, although she saw the trucks driving up and down the road before that. However, as raised with her via the process outlined in s.424AA [Daughter 1] and [son-in-law], who have also claimed protection on the same basis, both claimed the military started coming to the meetings and harassing them in June 2013, albeit standing outside from June 2013 until the three occasions when they entered the premises.[2]
[1] Tribunal file number 1618314
[2] Their hearing was held on 25 March 2019. Tribunal file number 1618314
When the inconsistencies were raised with the applicant she responded repeatedly that it happened a long time ago and she is confused. In the post hearing submission she claims she is truthful and was confused. She claims she became confused following discussions with her daughter and son-in-law, who were present when the visits occurred and that she deferred to her son-in-law’s forcefulness of conviction regarding the matter. As these events are the reason why the applicant claims a fear of return, specifically a fear of practising her religion in Fiji, the Tribunal does not accept the applicant was internally inconsistent and inconsistent with her daughter and son-in-law due to confusion and the passing of time or as her son-in-law was forceful as to his convictions. The Tribunal is of the view that if the events happened as claimed due to their significance that she would be consistent in her evidence as to when the events happened, when the military started watching and harassing them and when the final event happened, when the military entered their house with guns, both internally and with her family members who were also present at the meetings. This is particularly so with regards to the final event when guns were pointed at them and they were verbally threatened and physically pushed around. It does not accept that due to the significance of the claimed events that confusion explains the discrepancies. It also does not accept that as the claimed events occurred recently, in 2014 that the passing of time explains the discrepancies. This adds to the finding the applicant is not a credible witness as to the difficulties faced and adds to the finding she is not a credible witness.
Secondly, the applicant has also provided inconsistent evidence as to whether she and her husband stopped holding the [religious] meetings at their home following the military interventions, and specifically after the final time the military entered their home, verbally threatening and pushing them around. The applicant repeatedly stated at hearing that no further [meetings] were held at her home after the military entered with guns and threatened them, whereas as raised with the applicant via s.424AA, [Daughter 1] and son-in-law, [at] their Tribunal hearing on 25 March 2019 stated the [meetings] continued to be held at the same time and at the applicant’s home after the incidents until they departed Fiji in November 2014. When the inconsistency was raised with the applicant, she changed her response and said they held a couple of meetings and then the realised they were putting people at risk. The Tribunal does not accept this response as explaining the inconsistency between the applicant and her daughter and son-in-law. It is of the view that she would be consistent with her daughter and son-in-law as to whether the meetings continued or not, particularly as she repeatedly stated at hearing they did not continue at her home. This adds to the finding she is not a credible witness.
Further, the Tribunal views as inconsistent with the applicant’s claims to have faced the difficulties she alleges happened to her in Fiji including practising her religion in Fiji, and why she fears return, her behaviour in continuing to remain in Fiji for approximately [a few] months after her visa to enter Australia was granted. As raised with the applicant via the process outlined in s.424AA the evidence indicates the [temporary] visa to enter Australia was granted on 19 September 2014 but she did not depart until [November] 2014. When the concern was raised with the applicant she stated they could not get a plane to Australia as it was a busy time. The Tribunal has difficulty accepting this response that over a [period of a few months], outside of school holidays, she and her husband were unable to exit via a plane to Australia as they were all booked out. Her delay in departure leads the Tribunal to find that she did not face the difficulties she claims and was not in fear prior to her departure. It adds to the finding she is not credible witnesses.
Further, the applicant’s behaviour in returning to Fiji from [January] 2015 to [July] 2015 undermines her claims to fear return based on the incidents with the military in 2014.[3] She claims she returned as her husband passed away and she and her daughter travelled with his body back to Fiji to have it buried. She claims about a week after her husband was buried she had a [medical condition] due to the pressure and grief and her daughters thought it better for her to return to Australia, where her husband had died. The Tribunal is of the view if she faced the difficulties she claims in 2014 and was in fear she would not have returned to live in Fiji for an extended period. While it accepts her health was not good it does not accept this as a reason for remaining in Fiji for [a number of] months if she had faced the difficulties she claims and fears return on this basis. This undermines her claim to have departed in fear and to fear return for the reasons she claims. This adds to the finding she is not a credible witness.
[3] This was raised with the applicant via the process outlined in s.424AA.
Further, the Tribunal also views the applicant’s delay in applying for protection in Australia as inconsistent with her claim that she fears return due to the difficulties faced including being able to practise her religion in Fiji and being targeted by the military. As evidenced by the applicant’s passport and the applicant’s own evidence the applicant arrived in Australia [in] November 2014 after the claimed incidents which has led to her claimed fear but did not apply for a protection visa until 30 March 2016, being a delay of approximately [number of] months. The evidence indicates she held a [temporary] visa until she applied for a protection visa and that she returned to Fiji from January 2015 to July 2015. The applicant’s evidence as to the reasons for this delay was that she had no information about applying for protection, she was worried that the Fijian government might find she was applying for protection and she may be punished on return and that she held [temporary] visas until then. An applicant’s delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant’s claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was suggested to the applicant by the Tribunal at hearing such a delay may lead the Tribunal to conclude that the applicant is not genuine in her fear of persecution or faced the difficulties she claims, in that if she genuinely feared persecution she would have applied sooner. In particular the Tribunal raised with her that if she fears return because of the past difficulties and threats of harm, as is her claim, it expects on her arrival or soon after she would apply for asylum, rather than [a number of] months after her initial arrival. The Tribunal does not accept the reasons for her delay in applying for protection as it expects that if she truly feared persecution she would have applied sooner even if holding valid [temporary] visas. It does not accept the reason that she did not apply is that she lacked information. The applicant speaks English and finished high school in Fiji. The Tribunal expects if she fears return for the reason she claims and faced the difficulties at the hands of the military in 2014 she would have sought the information earlier. It also does not accept she was fearful of the Fijian authorities if she applied for protection as the process is confidential and the Tribunal is of the view if the applicant fears return for the reasons she claims and faced the difficulties she claims she would have applied for protection even if she held these concerns. Her delay therefore adds to the finding she is not credible as to her fear of return and it adds to the finding that she is not credible.
Finally, as raised with the applicant independent information does not support her claim that religious gatherings were not allowed in 2014 and they were targeted by the military at that time as they were suspected of holding political meetings for SDL/SODELPA and as they came from a SODELPA area. On 26 June 2013, the DFAT provided the following advice[4] in response to the Tribunal’s request of 29 May 2013[5] as to the treatment of certain groups or profiles:
[4] Department of Foreign Affairs and Trade 2013, DFAT Report No. 1517 – Fiji: RRT Information Request FJI42283, 26 June
[5] RRT Country Advice Service 2013, Email to DFAT, RRT Country Advice Service Request – FJI42283, 29 May
Members of the Methodist, Seventh Day Adventist or other churches.
We are not aware of cases of ordinary members of the Methodist, Seventh Day Adventist or other churches being subject to harm. However, there are numerous cases where current and previous high ranking officials in the Methodist Church have been targeted by the regime.
People whose origins are in areas which may have come under suspicion as being centres of opposition to the regime
We are not aware of cases where people have been subject to harm on the basis of their origins alone.
People who are or were simply members of the SDL, FLP or other parties, and who may have provided limited practical support for their party in some way in the past (eg during elections)
We are not aware of ordinary or past members of Fiji political parties being subjected to harm unless they are also high-profile politicians or vocal opponents of the regime.
Further the DFAT Country Report Fiji from April 2015[6] indicates that while there were past restrictions, motivated mostly by a desire to control and limit the political influence and organisation of the Methodist Church, that these past restrictions on religious practices have been removed. DFAT[7] in 2015 notes that public gatherings were permitted from 2014 which questions why the military would have been concerned that a religious meeting might have been an opposition members’ meeting in 2014. The 2015 report notes the following as to the public expression of political opinions:
In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example, to discuss the outcomes of the 2014 election. At times such gatherings include robust political criticism of FijiFirst and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.
However, some uncertainty remains about the permissible limits on public commentary. 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 those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy.[8]
[6] DFAT Country Report Fiji, 14 April 2015
[7] DFAT Country Report Fiji, 14 April 2015
[8] DFAT Country Report Fiji, 14 April 2015
The US Department of State Fiji 2015 International Religious Freedom Report[9] notes that 64 per cent of the country is Christian.
[9] >
The Tribunal discussed with the applicant the country information that those at risk at the time were high-profile public figures and there is no such evidence she is a high-profile figure or even involved in politics. The Tribunal raised with the applicant that the information does not appear to support her claim of military intervention at the religious meetings in 2014 due to an imputed political opinion opposed to the government or supporting SDL/SODELPA or as religious meetings are not allowed. The applicant submitted that the information from the DFAT reports does not accurately reflect the situation in Fiji and that the Fijians know what is going on. She submitted a number of reports as to difficulties in Fiji, including impunity of the military, difficulties faced by political activists and a lack of the rule of law. The Tribunal has considered this information but does not accept it indicates that in 2014 those holding only religious meetings were at risk of being targeted or were of any interest to military as they were suspected of holding political meetings, even if they were in an area considered in opposition to the government. This is particularly so as the applicant was not high profile and not even involved in politics. The Tribunal is of the view that the country information does not support her claim of military intervention at the religious meetings or gatherings in 2014 as claimed, as ordinary religious members or even if held in a SODELPA area or suspected of being in opposition to the government.
Credibility summary
On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and is not satisfied on the evidence before it that the applicant is a truthful witnesses as to her claims.
As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that either the applicant or any members of her family were targeted, harassed, assaulted, pushed, had guns pointed towards them or abused by any branch of the military or police at any time in Fiji while holding religious meetings or that they were suspected of holding political meetings, suspected of being supporters of SDL/SODELPA or being in political opposition to the government or because they come from an area known to oppose the government. It follows the Tribunal does not accept that at any time the military prevented her and her family or anyone else practising their religion by intervening in their [meetings]. It follows it does not accept as true that the military ever came to their meetings in any way, questioned, threatened her or her family, verbally and physically abused any of those at the meetings and prevented them from occurring at any time in 2014. It follows it does not accept as true that either in April 2014 or July 2014 or August 2014 the military came to the applicant’s home and told them to vacate the religious meetings or broke down the door, forcibly entered the house, stopped their ability to worship, pointed guns at them and pushed and pulled anyone. It follows it does not accept the applicant or her family were threatened not to hold the meetings otherwise they would be thrown in gaol or face harm. It does not accept that as a result the meetings ceased or were held elsewhere as they were in fear. It follows it does not accept the applicant departed Fiji in fear as she feared further harm or due to an inability to practise her religion. Based on the above the Tribunal therefore rejects the applicant’s claims as to the difficulties she and her family faced in Fiji. Based on the applicant’s lack of credibility it does not accept that at the time she departed Fiji or at any time since she has been of any interest to the authorities, military or police as being suspected of being in opposition to the government or for any of the reasons she claims.

In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s response to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
In making this finding the Tribunal accepts that some information has been consistent over time as to the difficulties she and her family faced. In particular that the military harassed them on three occasions, on the final occasion they entered the home with guns, threatened them and pushed and pulled them. However the Tribunal considers that these matters are relatively easy matters to recall and consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding it has considered the submission that she was confused and her discrepancies in evidence are as a result of confusion but not dishonesty. The Tribunal does not accept that this explains or excuses the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.
Does the applicant have a well-founded fear of persecution in relation to Fiji and meet the refugee protection provisions of the Act; and does the applicant meet the protection obligations under the complementary protection provisions of the Act?
On the basis of the above, the Tribunal has rejected that the applicant faced any of the difficulties she claims for the reasons she claims which led her to depart Fiji in fear of harm and as she was unable to practise her religion. The Tribunal has found she was of no interest to the authorities on account of her religious practice or as she was perceived to be in political opposition to the government prior to her departure in November 2014 or at any time since. It follows it does not accept she will face harassment, prison, harm, threats, verbal or physical abuse or any difficulties as a result of incidents based on what she claims happened to her in Fiji or how she was perceived by the government and military prior to her departure from Fiji. It finds she will not face any difficulties on her return at the hands of the military or anyone else due to any imputed political opinion in opposition to the government because of any claimed events or profile she held or was perceived to hold while living in Fiji or because regular religious meetings were held at her home. It follows it does not accept that her treatment by the military will be exacerbated as she is now a woman alone, without a husband or as she was a church elder.
Notwithstanding, the Tribunal accepts she is a Christian [and] will practise her religion by attending or personally holding religious meetings and going to church on Sunday on return to Fiji. The applicant stated at hearing that while she will be able to attend her church on Sundays she will be unable to practise her religion by holding the [religious] meetings. She claims she made a vow to her husband to continue with these meetings. Independent information, as outlined below which was raised with the applicant at hearing indicates that there is no persuasive country information to indicate that Christians or other evangelical groups currently encounter restrictions on practising their religion. The information also indicates that only high-profile political figures face difficulties and even if suspected of being in opposition to the government as they were holding private meetings or as they came from a SODELPA area, they would not face a real chance of serious harm or real risk of significant harm.
According to the 2007 census approximately 64 per cent of the population is Christian. The constitution establishes a secular state and protects freedom of religion.[10] There is little official or societal discrimination against Methodists in Fiji (the largest Christian group in Fiji and analogous to Baptists) on the basis of religion.[11] No administrative restrictions remain on the church’s ability to hold public meetings.[12]
[10] US Department of State, Fiji 2015 International Religious Freedom Report, DFAT Country Report Fiji, 27 September 2017, Section 3.24, p. 15, CISEDB50AD5787
[12] DFAT Country Report Fiji, 27 September 2017, Section 3.23, p. 15, CISEDB50AD5787
The 2017 DFAT report provides the following relevant information:
a.Fiji has had a democratically elected government since late 2014, various political parties contested the 2014 election including SODELPA, the election was won by the Fiji First party led by Mr Bainimarama who became the prime minister, and the election was deemed credible by a multi-national observer group led by countries including Australia.[13]
b.The 2013 Fijian Constitution provides for the freedom of assembly, expression, speech, thought, opinion and publication although there are some restrictions on grounds such as national security.[14]
c.While there have been breaches of the abovementioned rights in relation to political opinion and activity it is high-profile public figures, such as leaders of organisations, who may be seen to challenge the government’s authorities or undermine its legitimacy who are at risk of negative attention such as arrest and detention.[15]
d.Senior members of opposition political parties, namely those running for office, in Fiji are at moderate risk of being monitored and intimidated by security services but at low risk of arbitrary detention and other harassment.[16]
e.Leaders of opposition political parties are at moderate risk of being harassed and monitored especially in the lead-up to elections.[17]
[13] Lansford, p.484; US Department of State, Fiji 2016 Human Rights Report, pp.1 (USDOS Report); DFAT Country Report Fiji, 27 September 2017, Sections 2.7, 2.10, 2.33
[14] DFAT Report, [2.39]–[2.40]; USDOS Report, pp.8–12
[15] DFAT Country Report Fiji, 27 September 2017, Section 3.41
[16] DFAT Country Report Fiji, 27 September 2017, [3.46]
[17] DFAT Country Report Fiji, 27 September 2017, [3.46]
On the basis of the information above and as the Tribunal has found the applicant faced no difficulties holding her religious meetings in the past or practising her religion in any manner whatsoever, the Tribunal does not accept were she to return to Fiji she will be threatened, harassed, harmed, intimidated, physically and verbally assaulted, taken to the camp, be prevented from practising her religion, be prevented from holding meetings due to fear of harm or self-censorship or face any of the difficulties she claims for any of the reasons she claims. It follows as it does not accept she will face any difficulty practising her religion that any treatment she will face will be exacerbated as she is a woman without a husband or male protection or a church elder. The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if she returns to Fiji in the reasonably foreseeable future on account of her religion, due to holding regular religious meetings in her home, leading or attending religious meetings at any time, be unable to practise her religion, as she will be perceived to be in opposition to the government, as she will be perceived to be a member of SODELPA or as she will be imputed to have an opinion in opposition to the government on account of coming from a SODELPA area or as she is a church elder or a woman practising her religion without a husband or male protection. Similarly, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as defined in s.36(2A) of the Act on account of her religion, due to holding in her home, leading or attending religious meetings at any time, be unable to practise her religion, as she will be perceived to be in opposition to the government, as she will be perceived to be a member of SODELPA or as she will be imputed to have an opinion in opposition to the government on account of coming from a SODELPA area or as she is a church elder or a woman practising her religion without a husband or male protection.
The Tribunal also accepts that the applicant will return to Fiji having sought protection in Australia and the Fijian authorities might well surmise that she has sought protection in Australia, although as the Tribunal assured her at hearing, the Australian authorities will not reveal to them either the fact or contents of her protection visa applications. There is, however, no persuasive country information to suggest that the Fijian authorities target nationals known to have or suspected of having sought protection abroad. The Tribunal therefore does not accept were she to return to Fiji she will face any difficulties as a result of applying for asylum in Australia, including as being perceived to be in opposition to the government.
The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if she returns to Fiji in the reasonably foreseeable future as she will return as a failed asylum seeker or as she applied for protection or on account of this will be perceived as being in opposition to the government. Similarly, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm as defined in s.36(2A) of the Act on account of returning as a failed asylum seeker or as she applied for protection or on account of this will be perceived as being in opposition to the government.
Summary
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of her being subjected to serious harm in Fiji in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if she returns in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of her being subjected to significant harm on return to Fiji. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept 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 she will suffer significant harm as defined in s.36(2A) of the Act.
CONCLUSIONS
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen

Member
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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.
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.
..
36 Protection 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 1121

29 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction