1610116 (Refugee)

[2019] AATA 6822

1610116 (Refugee) [2019] AATA 6822 (22 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610116

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Ms Christine Long

DATE:22 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 October 2019 at 2:17pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – membership of the Social Democratic Liberal Party (SODELPA) – police interest in the applicants – past arrests and detention – police corruption – proceedings commenced against the police – whistle-blower of government corruption – outspoken woman – changes to land rights/tenure of indigenous Fijians – travel history – returned to Fiji on two occasions – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 June 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who are citizens of Fiji, applied for protection visas on 14 March 2016. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations under the Act. The applicants were notified of that decision by letter dated 28 June 2916.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

   CLAIMS AND EVIDENCE

9. The Tribunal has before it the applicant’s departmental file which includes the applicants’ applications for protection visas signed 10 March 2016, a copy of a certificate of marriage showing the applicants married in [City 1 in] January 2012, a copy of the delegate’s decision record and a copy of a notification of incorrect answers (Form 1023) which essentially corrects information in the applications in relation to the languages spoken by the applicants. Curiously, the notification of incorrect answers form is dated 14 February 2016 which is prior to the date of the signing of the applications containing the incorrect details.

10. The Tribunal also has before it the applicants’ application for review and the various statements, documents, information and submissions provided to the Tribunal in support of the application for review.

    Claims of first named applicant in Application for Protection Visa

11. In his application for protection visa the first named applicant (the applicant) states that he was born in Fiji in [year] and is an indigenous Fijian. He indicates that he was educated in [Town 1] to [specified year] level. He indicates he is presently unemployed and supported by relatives. He indicates that he has two aunts, one sister and three cousins in Australia. He provides details of his employment in Fiji in [Industry 1], as a [Occupation 1 in] his brother’s [business], as a [Occupation 2] in [City 2] from January 1990 until January 1996, and as a [Occupation 3] in [a government department]. His religion is given as Christian. He indicates that he married in [City 1] in Fiji in January 2012. He indicates that his parents are deceased and he has [a number of siblings] living in [Town 1] in Fiji; another brother born in [year] is deceased. He indicates that he is in contact with his relatives outside Australia about once per week via telephone and the internet.

12. The applicant indicates that from [year] until December 1995 he lived in [Village 1] in [Town 1], he then lived for a short time during December 1995 in [City 2] and returned to [Town 1] to the village until November 2011. The applicant indicates that he lived from November 2011 until February 2015 at an address which he gives in [Town 2].

13. The applicant indicates that he last left his country in February 2015; he last arrived in Australia [in] February 2015. The applicant indicates that he left his country legally using a passport issued by the immigration department in his country [in] 2013; his passport expires in 2023. He entered Australia as a visitor and his visitor visa was issued in [City 2 in] August 2014. In answer to the question in his application for protection visa form “Have you ever had an Australian immigration visa refused or cancelled?” the applicant indicates that in Australia he has had an application as secondary applicant for a carer visa refused.

14. The applicant indicates that he first arrived in Australia [in] August 2014 and has returned to Fiji twice since first arriving in Australia. He indicates that he departed Australia and returned to Fiji [in] November 2014 and returned to Australia [in] December 2014. He indicates that he also left Australia again [in] January 2015 and returned to Australia [in] February 2015; the date [in] January 2015 appears to be a typographical error however as his passport shows that he left Australia and returned to Fiji on [a different date in] January 2015 rather than [the date listed in his application]. He indicates that on both occasions he travelled from Australia to Fiji, entered his country legally with full knowledge of the authorities in his country. The applicant indicates that in Fiji he has lived in [Town 1], for a short time in [City 2] and also in [Town 2].

15. The applicant states that he left Fiji for two reasons; his sister in law had a health emergency and needed his wife’s care and also he has been fearful on his return to Fiji because police falsely arrested him and tried to falsely charge him over a robbery. He was threatened by an officer after he tried to have the false arrest investigated. He tried to remain in Australia by lodging a carer visa but that was refused. He is fearful of returning to Fiji. The applicant fears he will be targeted by further false allegations and possible physical harm from police/military if he returns to Fiji. He was detained by police in 2014 and threatened by a police sergeant about the pursuit of an investigation into his false arrest. A lawyer is investigating the police actions but police have obstructed his lawyer and also the applicant in the obtaining of documents about the false arrest. He cannot return to his country because police will continue to harass him, make false charges and arrests; he has annoyed them by pursuing his rights to try to investigate what happened when he was falsely arrested in 2014. The applicant intends to continue to pursue his investigations and the police will continue to cause him problems. The applicant did not move within Fiji to avoid harm as even if he did so the police and military who are present throughout the country would still target him in any area to which he relocates.

    Claims of second named applicant in Application for Protection Visa

16. In her application for protection visa the second named applicant (applicant 2) states that she was born in Fiji in [year]; she is an indigenous Fijian. She indicates that her parents and [number] of her sisters reside in Fiji but one of her sisters (dob [year]) resides in Australia and is an Australian citizen. She indicates that she also has two aunts living in Australia. She indicates that she is in contact with her relatives in Fiji by telephone/internet about once per week. She indicates that from January 1974 until February 2015 she lived in [Town 2] at an address which she provides.

17. Applicant 2 states that she left her country legally in January 2010 to come to Australia; she has returned to Fiji since her first arrival in Australia; she last left Australia [in] January 2015 and arrived back in Australia [in] February 2015. The applicant indicates that she travelled on a passport in her name issued by the Immigration Department in Fiji. She entered Australia as a visitor. She indicates that she came to Australia in February 2015 because of a medical emergency of her sister. She provides details of the more recent visas she was issued to enter Australia. She indicates that she was refused a carer visa for Australia in 2015.

18. Applicant 2 indicates that prior to August 2010 she entered Australia and returned to Fiji in 2002, in 2003, in 2004, in 2005 and in 2006 and she went on a research trip to [Country 1] for two weeks in April 2003. This prior travel was under another name (prior to her current marriage), which she provides.

19. Applicant 2 provides details of her education in Fiji; she gained her [Qualification 1] from [Institute 1] in November 2003. She also studied towards her [Qualification 2] between 2001 and 2003 but did not complete those studies. She gained a [Qualification 3] in 1987. The applicant states that she was employed as a [Occupation 4] in Fiji with the [government] between 1988 and 2001 and also between 2004 until January 2015. She indicates that she is unemployed in Australia and is supported from her savings and by her relatives.

20. Applicant 2 claims that she left her country because her sister (in Australia) had a medical emergency and also because her husband, the applicant, was fearful following an incident with the police.

21. Applicant 2 states that she also fears repercussions because she has agitated about things she considers are corrupt in Fiji. She has disagreed with the current government’s handling of matters that have “racial underpinnings” such as the land issue, “equality” which she feels has disadvantaged indigenous Fijians and also corruption within [specified government] department. She is concerned that the society in Fiji is breaking apart because of land tenure issues; she fears Fiji becoming divided like East Timor and the “redrawing of village boundaries and privileges according to Indio Fijians”. The lawyer that she and her husband have engaged about the police matter is representing one of the chiefs in the sedition case.  She has contacted [an officer] to challenge where money has gone that should have been used for technology at her [workplace]. This resulted in a management board representative coming to the [workplace] to rectify things and she experienced disapproval and ostracism following this and feared further action. She and fellow [co-workers] are also fearful of repercussions through court actions from [members of the public] and the [authorities] do not provide assistance or protection; this can affect reputation, assets and livelihood.

22. Applicant 2 is also fearful for her husband’s well being having regard to the police matter.

23. Applicant 2 claims that if she returns to her country she fears her husband will be harmed by police. She also fears repercussions because of her agitations about various matters; she is worried about political matters generally as she does not support the current government. Both she and her husband could face physical harm and as well there could be professional consequences for her.

24. In answer to the question whether she experienced harm in her country applicant 2 states that she experienced professional sidelining and ostracism and was threatened by police when her husband was arrested. The police threatened them about their complaint about the police being followed up by them; they engaged a lawyer to assist them with this. They did not move in their country to seek safety as their problems will be present throughout the country. Police, military and government network with each other and would cause the applicants problems in any area of the country.

25. Applicant 2 claims that she fears physical harm, legal and professional consequences, from police, the military or government authorities because of her relationship to her husband and also because she agitated about [various] matters of government corruption. The authorities will not assist her; they are the people whom the applicant fears. Reporting things is more likely to result in harm than in help.

26. Attached to applicant 2’s application for protection visa is a list, dated 10 March 2016, of her travel to and from Australia for tourism and to visit friends and family in 2002, 2004, 2005, 2006, 2010, 2014  (when she lists the reason for travel to Australia as “concerns about employment-break from stressful situation”), 2014/2015 ( when she lists her reason for travel to Australia  as [named] church group”) and in February 2015 (when she list her reason for travel as Sister medical emergency). She also lists her travel to [Country 1] in April 2003 for [research] and notes that prior to her trip to Australia in 2010 she travelled using a different name which she gives.

    Interview by delegate

27. The applicants were interviewed by the delegate about their claims on 15 May 2016.

    Claims in Application for Review

28. In the application for review the applicants make no new claims.

29. On 24 October 2018, the day before the first Tribunal hearing, the applicants submitted additional information to the Tribunal about their claims for protection.

30. There is submitted a statutory declaration declared by the applicant on 15 May 2016 which refers to the  following- the circumstances of his arrest by police for theft in Fiji in April 2014 and his release by police the next day when they told him they had made a mistake after viewing photographic evidence of the person who committed the robbery; a statement by the police sergeant when they dropped the applicant to his house the next day that the case was

    
    

    “still with him” which the applicant interpreted as meaning that the case was still open and would be further investigated; the applicant’s complaint to police about his wrongful arrest; what the applicant believes were threats by police to him about making the complaint and his worry that the police were trying to trap him/plant something to convict him;  his engaging a lawyer to fight for his case against the police; his difficulty getting the police report from the police and his belief that police are trying to hide his case; an earlier incident in his background in 2009 when he was taken at gunpoint by the military and his release; his application for a carer visa when he came to Australia because his wife’s sister was sick and because they were worried about staying in Fiji; the refusal of the carer visa because his wife’s sister withdrew her sponsorship; their application for protection visas because they were worried about going back to Fiji; his lack of trust in the Fiji First party and his intention to vote for Sodelpa; his fear that he will be taken again in Fiji by the police/military and his worry that police/military will contact his family there.

31. There is submitted a further statutory declaration of the applicant declared 27 July 2018 declaring, amongst other things that- the applicant is a registered member of Sodelpa, the rival to the current government; if he returns to Fiji he will be persecuted because of his political opinion; he has been to two Sodelpa meetings in Sydney, in 2016 and in 2017 and has attended a Sodelpa manifesto launch in 2018 where Rabuka was present; his [relative] is a member of Parliament but was suspended from Parliament as he used to speak the truth about issues and because he was a member of Sodelpa; the applicant is a traditional land owner in Fiji and the government is implementing changes to the law so that the government will take over ownership of the land; the government has ursurped the rights of chiefs and his [family member] is now chief of the tribe; his family now has no power to utilise the land where people get their subsistence; his brother has told him that they are engaging a lawyer to fight for their land rights because they are not getting royalties from the timber cut from their land; the government is selling the licence to outsiders to access resources on customary land; if the applicant/his family try to stop the outsiders from doing what they are doing on their land they will be targeted by the military; the applicant states that he fears the government will target him because he has connections with his family members whom he contacts on [social media] and by telephone.   

32. There is submitted a statutory declaration declared 27 July 2018 by applicant 2 stating that- in June 2018 a Fijian high chief who is a Sodelpa member and stalwart was arrested by police and military for making a false claim to chiefly title and this arrest was politically motivated and could happen to the applicants as they are staunch members of Sodelpa; in April 2018 a 17 year old boy was taken by Nadi police for an unknown reason and later died from injuries; the family claims the injuries were inflicted by police and this systemic and discriminatory conduct could happen to her; she (applicant 2) is a staunch registered member of Sodelpa and fears being targeted if she returns to her country because of her strong political alliance and opinions; she has made strong comments on the Sodelpa [social media] page since 2016 and fears being targeted and put on a black list by the special police surveillance unit; she (applicant 2) has attended four visits to Australia of Rabuka who is  the leader of Sodlepa and a former Prime Minister and retired major general in the Fiji military; she describes the four meetings in March 2018 in March 2016, in March 2017 and in July 2017 with Rabuka; the second named applicant has cleared a bank loan in 2015 and although the bank stated they were showing the loan as null and void in their records they stated that they are keeping the original title for five years so that she cannot sell the property  and the applicant fears they will not give her the title; her husband’s [relative] is a Sodelpa  member  who was suspended from parliament because of what he said and [Mr A] is her [distant relative] referred to as her uncle; she (applicant 2) is an indigenous Fijian and a land owner by right but because of the current government’s land policies regarding indigenous lands the village boundaries are limited and they are denied access to subsistence; their customary land rights have been robbed by the government and if they want to utilise their land they have to lease it.

1. There are also submitted three letters on letterhead of Sodelpa in support of the applicants’ claims. There is a reference letter dated 2 August 2018 expressed to be from the president of Sodelpa, NSW Branch, indicating that the applicants are active registered members of Sodelpa who help to organise and co ordinate meetings and who are involved in [promotional activities]. It is stated by the writer about the applicants, “unfortunately they fled our beloved nation due to threats and persecution they got from the Police Department. They had no choice but to seek Protection here in Australia”. There are two further letters, dated 16 March 2017 and 2 August 2017, from S. L. Robuka expressed to be a former Prime Minister of Fiji and prior Commander of Military Forces in Fiji. He states in relation to both applicants that he can vouch for complaints from many former and current citizens of Fiji that the political climate is not conducive to freedom of expression and the free and happy pursuit of daily living and employment. He recounts an incident in 2016 when he and other political party workers were detained for two days and were then told later by the DPP that there was not enough evidence to support charges against them. He states that there have been similar cases and some people have come to harm in the hands of the military, the police and prison authorities.

2. There are also submitted copies of written contact, including e mail contact, by applicant 2 with [Bank 1] and [Super Fund 1], about a discounted debt settlement of a loan from [Bank 1] in relation to a housing transfer. In relation to the loan there is submitted a copy of a letter [dated] August 2015 between [Bank 1] and [Super Fund 1] referring to an application for a housing transfer in applicant 2’s name, noting the approval of a discounted debt settlement for applicant 2 by the bank on condition that the bank retain the mortgage of the property for the next 5 years and then discharge the mortgage on the expiry of that term. The letter from the bank to [Super Fund 1] indicates that if applicant 2 decides to sell the property within the five years the residual balance of the debt after the discounted debt settlement will become payable to the bank before settlement and full discharge of the mortgage.

3. Also submitted are various media reports/releases, and on line comments, about the actions of the Fijian government, and the actions of various political figures, in relation to land title disputes and other matters including the situation for, and rights of, native Fijians. This information includes an article headed “Pacific Fiji” and dated 8 June 2018 in relation to a dispute over title to land on the island of Bau.

   Tribunal Hearings

4. The Tribunal arranged a hearing for the applicants on 25 October 2018 which they attended but that hearing was adjourned to allow the Tribunal time to consider the lengthy materials submitted by the applicants’ advisor just prior to the hearing date. The applicants appeared before the Tribunal again on 23 November 2018 and 20 December 2018.  Although the applicants indicated in the response to hearing form returned to the Tribunal on 24 October 2018 that they requested the Tribunal to take evidence from a witness whom they named, at the hearing on 23 November 2018 the applicants’ advisor confirmed that they no longer wanted the Tribunal to speak with that witness.

5. The applicants both produced their Fijian passports to the Tribunal; copies are placed on the Tribunal file. The applicant’s passport was issued in 2013 by the Immigration Department of Fiji; it is noted as expiring in 2023. Applicant 2’s passport was issued by the Immigration Department of Fiji in 2010 and expires in 2020.  At the Tribunal hearing on 23 November 2018 the applicants also produced a copy of an e mail from the Fijian Elections Office to applicant 2 stating that as an overseas registered voter she was entitled to vote in the 2018 general election as a postal voter and both applicants submitted to the Tribunal their Fijian Voter Identification cards [in] 2017; copies are placed on the applicants’ Tribunal file.

6. At the Tribunal hearing applicant 2 mentioned a statutory declaration she had made in 2016 but the Tribunal did not have that statutory declaration before it; a copy of a document expressed as declared by applicant 2 at [Suburb 1] but with the date of declaration omitted was provided to the Tribunal by applicant 2. Applicant 2 told the Tribunal that she thinks she made that statutory declaration in May 2016 around the time she made the application for protection visa.

7. In the statutory declaration made by applicant 2 in May 2016 she describes the following- an incident when her husband, the applicant, was arrested in Fiji for theft of cash and jewellery and his detention for one night by police; the reference by police to a “second search” after her husband was arrested and after a  search when nothing was found; the appearance of a male person near the applicants’ house on the morning after her husband was arrested; her belief that the male person was in league with corrupt police and that he was going to plant something to incriminate her husband when a second search was conducted; her belief that police in Fiji are corrupt and are setting up people to get a cut of insurance money; her belief that the Indo Fijian police officers who arrested her husband will be very upset that she and her husband engaged a lawyer to look into the case because maybe their corrupt practices will come to light; the refusal of the police station to release the police report about the incident to their lawyer; corruption in the [civil service] which affected applicant 2’s  opportunities/promotion in the [workplace] and also affected the spending of moneys/funds for [government services] in Fiji including monies given by the European Union; applicant 2’s correspondence in 2013 to [authorities] about the lack of facilities to [provide services] which raised issues such as the inappropriate use of grant and levy monies; applicant 2’s complaints about corruption in her workplace; her letter in 2010 to the Prime Minister’s Office regarding her work promotion. Applicant 2 states in the statutory declaration, “We left Fiji for a combination of reasons. For me it was worry about life there: my own problems that I have had because of the positions I have taken against those in authority with my work; my husband’s problem and the worry that we will be pursued because we have complained about the police and have our lawyer looking at their misdeeds, and also because of my sister’s situation…. Also our lawyer is involved in one of the cases of a chief regarding the sedition issue in Fiji at the moment… I am afraid for my husband and our future in Fiji……I am always being intimidated because I’m always agitating about things… Who will harm me or my husband? Government authorities using ordinary people to achieve their deeds”.

8. Further, in the statutory declaration applicant 2 declares that although after the coup she supported the Fiji First Party initially she has now realised that party is corrupt and that Bainimarama is corrupt; she will be harmed if she speaks out about the corruption. She cannot move to avoid harm in Fiji and there is no one to help as the police and military are involved with each other. She feels very unsafe about having to return to Fiji.

9. At the hearings the Tribunal spoke with the applicants about their travel history and returns to Fiji, their backgrounds and family members still living in Fiji, the reason/s they came to Australia, their initial unsuccessful claims for carer visas in Australia, their applications for protection visas after their claims for carer visas were unsuccessful, the reasons they fear to, and cannot, return to Fiji, including what happened in Fiji. The Tribunal also spoke with the applicants about their activities with Sodelpa in Australia and the documents they produced in support of their claims, including the documents from Sodelpa.

   Post Hearing submissions

10. On 8 and 14 January 2019, following the Tribunal hearings, the applicants’ advisor sent the Tribunal submissions in support of the applicants’ application for review.  The advisor explained in the submissions that applicant 2’s statutory declaration made in 2016 should have been part of the Departmental file sent to the Tribunal as it was e mailed to the delegate along with the applicant’s 2016 statutory declaration on 15 May 2016. A copy of the e mail dated 15 May 2016 from the advisor to the delegate, attaching both applicants’ 2016 statutory declarations, was also provided by the advisor to the Tribunal (this overtook the advisor’s request to the Tribunal that it obtain that e mail and attachments from the department). Also provided by the advisor is a copy of handwritten notes referring to the Tribunal case file number which the advisor states are handwritten notes made by herself when the applicants first came to see her about their protection visa applications in March 2016.  The advisor submits that the notes show how applicant 2 has continued to be concerned about the things she claims, including her worry about her incapacity to stay quiet about things that bother her about Fiji’s government, from her first meeting with the advisor. It is submitted that applicant 2’s nature is to be outspoken and forthright, scrupulous about her own behaviour and voluble in her disapproval of all forms of corruption in all areas of life in her home country; it is submitted that she has described in detail her dissatisfaction with everyday corruption and thuggery in Fiji. It is submitted that the applicant, being a woman inherently more likely than most to speak to people in authority in ways that will irritate them, is more likely to face a risk of harm in Fiji where corruption is widespread and there is a history of harm by authoritative figures/bodies against citizens. It is further submitted that applicant 2 being female is at greater risk than a male in a patriarchy such as Fiji for outspoken behaviour critical of the government.

11. It is submitted also that applicant 2’s 2016 statutory declaration is undated as it was an oversight on the advisor’s part to include the date it was declared.

12. The advisor also sent the Tribunal a bundle of documents being copies of on line comments and media articles about - the actions of the Fijian government /politicians/military, including articles in relation to the denial of land rights of native Fijians; warnings by  Bainimarama to Fijians living overseas who are trying to incite rebellion; ill treatment by the military and police of activists/those who speak out about injustices in Fiji and the undemocratic actions of Bainimarama; and further breaches of human rights in Fiji.

13. The advisor also sent the Tribunal a further copy of both applicants’ 2016 statutory declarations and also a copy of the notification of incorrect answers form noted as signed by the applicants on 14 February 2016. The incorrect answers referred to in the form are in relation to the applicants’ language abilities as noted in their in their applications for protection visas dated 14 March 2016; in the notification of incorrect answers form it is noted that both applicants speak Hindu. Curiously the notification of incorrect answers form predates the forms which it seeks to correct, namely the application for protection forms noted as signed by the applicants on 10 March 2016 but nothing turns on this for the purposes of the consideration of the application for review.

    COUNTRY INFORMATION

    In addition to the various media reports and articles referred to and provided by the applicants/the applicants’ adviser, the Tribunal consulted DFAT Country Information Report, Fiji, 27 September 2017 especially at paragraphs 3.42 to 3.46 as regards opposition political  parties/Sodelpa, and paragraphs 2.45 to 2.49 in relation to land tenure and land rights for indigenous Fijians in Fiji. This country information was discussed in a general way with the applicants at the hearings. The Tribunal also consulted paragraphs 5.8 to 5.11 as regards the police in Fiji which amongst other things referred to credible allegations and confirmed cases of police involvement in beatings and assaults.

    FINDINGS AND REASONS

14. As the Tribunal understands the applicant claims that he left his country and cannot return there as he was, and will be in the future, harassed, threatened, discriminated against, and ill treated by the Fiji police/authorities/military. He claims that he was wrongfully arrested by police for a robbery in Fiji in late April 2014 and after he was released, which was on the next day after his arrest, he was threatened by police that the case was “still open”.  Further, after his detention and release, he took action through a lawyer to bring proceedings against, and complain about, the police/police corruption; in his 2016 statutory declaration he indicates that it was mainly the worry about what would happen to him and his wife in Fiji, because of the complaints they have made about the police in their case, and their engagement of the lawyer, that caused him to apply for the visa to stay in Australia. He claimed before the Tribunal that his brother in Fiji was questioned by police about him in 2017; police did not know he had left the country and wanted to find out from his brother where he (the applicant) was staying. The applicant also claims that his [relative] is a member of Parliament and was suspended from parliament in Fiji because he spoke the truth about issues and because he was a Sodelpa member. The applicant also claims that he is a traditional land owner who is affected detrimentally by changes to the law about land ownership in Fiji. He fears harm in Fiji because of his connections to his family members who have engaged a lawyer to fight for their land rights.

15. The applicant also claims he was taken by the military at gun point in 2009 but was not hurt and was released.

16. As the Tribunal understands applicant 2 claims that she left her country and cannot return there as she was, and will be in the future, harassed, discriminated against and ill treated by the Fiji police/military,/authorities/the government in Fiji, which are corrupt, and/or she will suffer harm, including professional and legal consequences because she is a woman who has been, and will be, outspoken against the Fijian government/military/police about corruption and other matters of concern to her, including corruption in the [civil service] and in relation to land rights of indigenous Fijians. She told the Tribunal at the hearing that the main reason she could not return to Fiji was because of what happened to her husband and although she was not directly affected she realised Fiji is not safe. She claims she fears the lack of security in Fiji, the discriminatory processes in Fiji and police corruption in Fiji. She claims that her title to land has been withheld by the [Bank] even though she has paid out her housing loan from the bank, and that the Fiji government knows about this. Applicant 2 also fears harm in Fiji because of the police interest in her husband whom they wrongfully arrested in April 2014 for a robbery and threatened and because she and the applicant have taken action through a lawyer to complain about the actions of the police which could expose police misdeeds/corruption. Applicant 2 also claims that as an indigenous Fijian she is discriminated against and disadvantaged by the land rights system introduced by the Fijian government.

17. Both applicants claim they have been members and supporters of the opposition political party, Sodelpa, in Australia and will be targeted on return to Fiji because of their activities with Sodelpa. In particular applicant 2 claims that she will targeted for harm by police in Fiji because of her activities with, and support of, Sodelpa, while she has been in Australia, including because of comments that she has put on the Sodelpa [social media] page.

18. Both applicants claim that they cannot relocate to avoid harm in Fiji and cannot get protection from the harm they fear in Fiji.

    Identity and Country of Reference

19. The Tribunal accepts and finds that the applicants are who they claim to be; they produced their Fijian passports to the Tribunal at the hearing/s. The Tribunal finds that the country of reference for this application is Fiji.

    Travel History

20. Having regard to the entries in the applicants’ passports, which were produced to the Tribunal at the hearing, and also the evidence of the applicants at the Tribunal hearings, the Tribunal finds as follows. The applicant left Fiji [in] August 2014 and arrived in Australia on that date. He then returned to Fiji [in] November 2014 and returned to Australia [in] December 2014. He departed Australia again and arrived in Fiji [in] January 2015 last arriving in Australia [in] February 2015. The Tribunal finds that applicant 2 left Fiji and arrived in Australia [in] August 2010, returned to Fiji from Australia [in] August 2010, returned to Australia from Fiji [in] August 2014, returned to Fiji [in] September 2014, left Fiji and arrived back in Australia [in] December 2014, returned to Fiji again [in] January 2015 and last arrived in Australia [in] February 2015. The Tribunal also finds that prior to August 2010 applicant 2, travelling in her prior married name, entered Australia and returned to Fiji in 2002, in 2003, in 2004, in 2005 and in 2006 and she went on a research trip to [Country 1] for two weeks in April 2003; these details were included in her application for protection visa.

21. In the Tribunal’s view it is not consistent with the very serious claims that the applicants make about why they cannot return to their country, that they have in fact returned there and stayed for a period of time, on two occasions, after arriving in Australia [in] August 2014 following the incident in April 2014 when the applicant was taken into detention for one night after the police suspected him of a burglary.  The applicant visited Fiji and stayed there for about three weeks in November/December 2014 and then again for just over two weeks in January/February 2015. Applicant 2 stayed in Fiji for about two and a half months, from September to mid December 2014, on the first occasion she returned to Fiji from Australia, after coming here in August 2014, and then she stayed in Fiji again for just over two weeks on the second occasion she returned to Fiji in January/February 2015. Both applicants told the Tribunal that on return to Fiji from Australia they returned to stay at their usual place of residence in [Town 2], without difficulties. The applicant told the Tribunal that he moved to [Town 2] in 2012 and went back there on the occasions he returned to Fiji from Australia although he spent a few days in [City 2]. Although he said that he stayed “in fear”, and tried to stay “as little time as possible” when the Tribunal questioned him about his returns to [Town 2], the applicant agreed he stayed for two to three weeks at his usual place in [Town 2] when he returned there and he did not describe any difficulties he had in [Town 2]/Fiji after he returned there from Australia; when the Tribunal asked him about any difficulties he had in [Town 2] on return there he said that he was “not comfortable” there as people were being taken and interrogated. The Tribunal does not accept as true that the applicant stayed in [Town 2] “in fear” as he claims when he returned there. He agreed that he was back in [Town 2] for two to three weeks on two occasions staying at his usual place of residence and did not describe any difficulties he suffered there; in the Tribunal’s view these facts are not consistent with his claims to fear harm in Fiji, given that he had a passport and a visa to return to Australia. Applicant 2 told the Tribunal that she has always lived in the family home in [Town 2] and that she returned to live in the family home there on her returns to Fiji from Australia. She did not describe or claim that she had any difficulties on her returns to Fiji from Australia in/after her husband’s arrest in April 2014. She also said that she herself had not had any difficulties with/from authorities in Fiji.

    Delay in Applications for protection visas

1. Both applicants told the Tribunal that although they knew about the availability of protection visas in Australia they did not make their applications for protection visas until after they had made applications for carer visas in Australia and had been refused those visas. Both applicants indicate in their protection visa applications that their carer visa applications were previously refused by the department, applicant 2 indicating that this was in 2015. The applicant told the Tribunal that he knew about the availability of protection visas in Australia before he came to Australia in 2014 but he/they applied for the protection visa only when they lacked the documents/information to get the carer visa which was refused.  When the Tribunal asked him why he did not apply for protection earlier, in August 2014, he said that he had no intention of staying in Australia at that time as his wife was working as a [Occupation 4] in Fiji and they were planning to wait till the school holidays. They then found out about the medical situation of applicant 2’s sister’s illness. He said that he understood that if they got a carer visa they could stay in Australia for five years. He also claims that they applied for the carer visa also because they were worried about staying in Fiji. In his 2016 statutory declaration he states that he did not make a protection visa application because they were lodging a carer visa application but then his wife’s sister withdrew her sponsorship. Applicant 2 agreed that she had known about the availability of protection visas for a long time. She said that she knew about protection visas because she had relatives here with protection visas. She told the Tribunal that she found out her sister was ill in December 2014 when she came to Australia but it was after they arrived in Australia in February 2015 that they talked about and decided to apply for the carer visa. She said that it was around that time that they decide they would not go back to Fiji. She told the Tribunal that she/they intended to return to Fiji in December 2014 and had no thoughts about applying for protection then. She said that it was only when her application for the carer visa was refused, and the appeal about the carer visa refusal to the Tribunal was refused, and she/they were without a visa to stay in Australia, that she thought of other ways to remain in Australia. She said that she delayed applying for protection because her sister was ill and wanted her to apply for a carer visa. Applicant 2 said they applied for the carer visa in in April 2015, it was refused in May/June 2015 and then in January/February 2016 the Tribunal affirmed the department’s decision to refuse them the carer visas. Applicant 2 told the Tribunal that the carer visas were refused because her sister did not supply her medical reports.

2. In the Tribunal’s view if the very serious claims that the applicants make about why they did not, and cannot, return to their country, were true, both the applicant and applicant 2 would have made their applications for protection visas sooner, at the earliest opportunity that they had to do so after they both arrived in Australia in August 2014 following the arrest and detention of the applicant; they did not do so. In the Tribunal’s view neither applicant provided a reasonable explanation for why he/she did not apply for protection earlier.

   Applicant’s arrest and detention in April 2014

3. The Tribunal accepts and finds that the applicant was suspected of burglary in late April 2014 and that he was detained for one night at a police station and released the next day as he and applicant 2 claim. The Tribunal accepts the applicant’s evidence in his 2016 statutory declaration that he was kept at the police station overnight because the sergeant was not there to take his statement and the police officer who was there did not know how to take the statement and that he was released the next day because photographic evidence available to the police showed he was not the person responsible for the burglary. Applicant 2’s evidence is that she believes her husband would have been detained longer and subjected to police brutality as others have been if she and her father had not obtained a contact number from her father’s cousin who is a police officer and contacted the Divisional Head of police about the release of her husband; the Tribunal accepts that applicant 2 believes what she told the Tribunal about her husband’s release but finds that this is speculation on applicant 2’s part about what she thought could have occurred but did not. While the applicant states that he was kept in handcuffs when he was taken to the toilet at the police station, and he claims that he feared the police would ill treat him, he told the Tribunal that he was not subjected to police ill treatment while he was in detention and the Tribunal so finds.

4. The Tribunal accepts the applicants’ claims that there is some police corruption in the police force in Fiji and that there are reported instances of police brutality, and also that there is some prejudice sometimes against indigenous Fijians by Indo Fijian police officers. The Tribunal also accepts the applicants’ claims that because of police corruption, in 2014 they suspected and were worried that police might plant evidence at the applicants’ house to be found in “a second search” to implicate the applicant in the burglary or try to trap the applicant in some way; the applicants’ evidence before the Tribunal is however that these events did not eventuate and the applicant was not implicated in the burglary or otherwise trapped by police. Although the applicant states in his 2016 statutory declaration that he was told by the sergeant after he was released from his one day detention that the case was “still with him”, which the applicant understood to be a threat and mean that the case was still open and would be further investigated, the applicant also states in the declaration that the police did not contact him any more about the matter.

5. On the evidence before it the Tribunal finds that the applicant’s arrest and one day detention in April 2014 was part of an investigation by the police into an offence that they suspected at the time the applicant had committed; he was not ill treated by the police in detention and they released him when they had photographic evidence that he did not commit the offence. The Tribunal finds that after the applicant was released from detention in April 2014 he was not contacted again about the matter by police/authorities.

6. The applicant claims that he is afraid that if he returns to Fiji he will be suspected again and taken as has happened to others and both applicants claim that the applicant is still of interest to police in Fiji and they could suffer harm because of this. The Tribunal does not accept these claims. If the applicant, or applicant 2, were afraid of harm in Fiji for these reasons they would not have returned there after leaving there in 2014, on two occasions, and would not have delayed making their protection visa claims in Australia. Further they both remained in Fiji from April 2014 after the applicant was released from detention until August 2014 when they came to Australia and describe no difficulties from authorities during that time.

7. The applicant claimed before the Tribunal that his elder brother who lives in [Town 1] was asked questions about him by police in 2017; the police wanted to know where he was staying as they did not know he had left the country. The applicant told the Tribunal that the only reason he can think of for why police would be asking questions about him in Fiji in 2017 is that at the time of his arrest in 2014 in [Town 2] they said they were not finished with him and they needed more information. The applicant said that the police might come looking for him in Fiji if he returns there. The applicant told the Tribunal he had not made this claim before as he got the information from his brother in 2017. When the Tribunal asked him why then it was not included in his July 2018 statutory declaration given the importance of the claim he said he overlooked it and things were going through his mind while he was at the Tribunal. The Tribunal does not accept as true that police were asking about the applicant in Fiji in 2017; if this claim were true in the Tribunal’s view the applicant would have included it in his statutory declaration declared July 2018; he did not do so. The Tribunal considers ad finds that this is an embellishment of the applicant’s claims to assist him to obtain a protection visa to remain in Australia.

   Legal proceedings commenced by the applicants against police

8. Both applicants claim that they cannot return to Fiji because they will be targeted and pursued/harmed by police/authorities because of the legal proceedings filed by them which they claim exposed police misdeeds during the arrest and also police corruption including “insurance scams” which police were involved in. In her 2016 statutory declaration applicant 2 states that she and her husband left Fiji and will be pursued there if they return because they have complained about the police and had a lawyer look at the misdeeds of the police. In his 2016 statutory declaration the applicant indicates that it was mainly the worry about what would happen to him and his wife in Fiji, because of the complaints they have made about the police in their case, and their engagement of the lawyer, that led them to apply for a visa to stay in Australia.

9. The Tribunal accepts the applicants’ evidence in their statutory declarations and at the Tribunal hearings that before they left Fiji in August 2014 they commenced legal proceedings for compensation, through a lawyer/solicitor in Fiji, in relation to the applicant’s arrest by the police in April 2014 but those proceedings were discontinued on the advice of the solicitor after they came to Australia after the solicitor could not get relevant documentation to proceed with the case. The applicant told the Tribunal that they saw the lawyer/solicitor and made the complaint about the police after his release from detention and before they left to come to Australia in August 2014 but it was after they came to Australia that the solicitor told them the case could not proceed. The applicant explained that the solicitor subpoenaed documents from the police department but the documents were not produced and the solicitor even returned their money to them. The applicant said that he believes that, because of their involvement in “scams” the police are hiding his case and the case did not continue not only because of the documents but because the solicitor was afraid to, or not comfortable with, “taking on” the police department. He agreed with the Tribunal’s suggestion however that he was just speculating about the solicitor being afraid to/uncomfortable with taking on his case against the police department. Applicant 2 told the Tribunal that the lawyer told them it was a case that should not be pursued because it was against the authorities but she said also the case was also not pursued because they could not get the documents for the proceedings. The Tribunal does not accept on the evidence before it that the applicants’ case against the police was discontinued because the police were trying to hide evidence or that the solicitor acting for the applicants was afraid to take the case against the police/authorities. If the latter claim were true in the Tribunal’s view the solicitor would not have commenced the proceedings or issued subpoenas for the documents from the police as the applicants told the Tribunal was the case.

10. The Tribunal finds that there is no real chance or real risk that the applicants, or either one of them, will suffer serious harm or significant harm from police, the military or authorities or anyone else in Fiji because of the legal proceedings the applicants commenced against the police before they left Fiji in August 2014, including because the lawyer they engaged is acting in a case involving a chief and a sedition issue, to the extent that the applicant/applicant 2 makes that claim.  Although the applicants’ evidence is unclear about when they learned the proceedings against the police were withdrawn, it is clear that the proceedings against the police have been discontinued for a number of years and are no longer on foot; the applicant’s evidence to the Tribunal is that it was probably in 2016 he learned that the case was not going ahead and applicant 2 initially told the Tribunal that she learned the case was not proceeding in about September 2014 but she later said she learned the case was not going on in 2015 after they were in Australia. Further the evidence before the Tribunal is that the applicants have travelled to Fiji from Australia and stayed there at their usual place of residence, without difficulties, since the time of the commencement of the proceedings.

    No interest by Fijian police in applicants

11. Applicant 2 claims that she fears harm in Fiji because of what happened to her husband but she said that she herself has had no difficulties with authorities in Fiji when she was there. The applicant states in his 2016 statutory declaration that he had no problems with authorities before the 2014 incident apart from an incident which happened in his village in 2009. He states that he is afraid of the police because in 2009 in his village police came to his house and took him at gunpoint when he was with a group of youths who were drunk and he was drunk too. He said the police did not hurt him and let him go after his uncle who was a soldier spoke to them. He said that in Fiji police can enter his home and take him using force.  Although the Tribunal accepts that the applicant was taken by police in 2009 as he claims and released without harm, he describes no incidents of police interest in him after he was let go by police in 2009 and no instances of interest in him by police/military/authorities apart from his arrest when he was suspected of burglary and detention for one night in April 2014. Despite his claims that the police threatened him after he was released in 2014 by indicating that the matter was still open, his evidence is that he has not heard from the police/authorities since he was released either before he left Fiji in August 2014 to come to Australia or on his two return trips to Fiji in November/December 2014 and January/February 2015.

12. The Tribunal finds that if the applicants, or either one of them, return/s to Fiji they will not be of interest to police/the military/authorities there including because of applicant’s detention and arrest in April 2014, and/or because of the legal proceedings commenced by the applicants against the police before they left Fiji in August 2014, which are no longer ongoing, because of their connection with their lawyer and/or because the applicant was taken by police and released in 2009. The Tribunal does not accept that applicant 2 will of interest to police/military/authorities in Fiji because of her association with/connection to her husband, the applicant. The Tribunal finds that there is no real risk of significant harm or real chance of serious harm to the applicants, or either one of them, from police/military/ authorities in Fiji as the applicants claim for the reasons that they claim.   

    Applicant 2’s claims about speaking out against corruption and matters of concern in Fiji

13. Applicant 2 claims she was sidelined and overlooked in getting promotions in her employment, including as a [Occupation 4] and civil servant, because she was a “whistleblower” about corruption and was outspoken about corruption in the [civil service]. While the Tribunal accepts applicant 2’s statement that she spoke out about matters she believed adversely affected [government services] in Fiji, including lack of funds and the misuse of grant monies and lack of proper facilities for [provision of services] as she claims in her 2016 statutory declaration, and the Tribunal also accepts that younger [candidates] with more degrees but less experience were placed in the jobs she applied for, and that senior jobs within the civil service were often given to military personnel, the Tribunal does not accept on the evidence before it that the applicant was discriminated against in her employment to the extent that she suffered, or will suffer in the future, serious or significant harm, because she was outspoken against authorities/the government  as she claims. The evidence before the Tribunal, including her oral evidence at the Tribunal hearing, is that she worked as a [Occupation 4] from 1988, that she was promoted to the head of her department at her [workplace] in 2012, that she worked in her [position] in Fiji  for many years (her employment history is set out in her application for protection visa), that she was granted leave without pay before she left Fiji and that she did not resign from that employment until about August/September 2015 after she came to Australia in August 2014.

14. As the Tribunal understands applicant 2 also claims that as an outspoken woman, critical of the government in a patriarchal society, she will face a risk of harm in Fiji, where there is a history of harm against citizens and where corruption is widespread. She claims that the risk of harm to her is greater than it would be for a male.  The Tribunal accepts that Fiji is a patriarchal society. The Tribunal finds however that there is not a real risk or real chance that applicant 2 will suffer significant harm or serious harm because she was and will be an outspoken woman in Fiji. The Tribunal does not accept that she fears harm in Fiji for this reason given that she has returned there from Australia on two occasions. Further she has lived in Fiji for many years and has given examples of having spoken out about matters of concern to her previously. She told the Tribunal that she herself has had no difficulties from police/authorities in Fiji before she left there in August 2014 and describes no instances of harm to her, or threats to her, on her two returns to Fiji from Australia in September 2014 and January 2015.

    Applicant 2’s Bank loan and discounted debt settlement

15. Applicant 2 claims, and the Tribunal accepts, that in 2008 the terms and conditions of her home loan agreement with [Bank 1] were changed so that she had to pay more. She told the Tribunal that because she had joint ownership with her father, the payments went up because of her father’s age. The Tribal accepts this evidence. Applicant 2 also claims that with the knowledge of the government her title document to the property has been withheld by the bank for five years even though she paid out the loan in 2015 through her superannuation fund. The e mail correspondence that applicant 2 has provided to the Tribunal in relation to the settlement of her housing loan with the bank through the transfer of funds from her superannuation fund appears to indicate that the debt repayment to the bank actually favoured applicant 2 in the sense that it refers to her receiving a discounted debt settlement of the loan, that is she was not required to pay the full debt amount in settlement. The bank states in e mail correspondence provided to the Tribunal, between the bank, the superannuation fund and applicant 2, that in the circumstances of a discounted debt settlement it is the bank’s policy to hold the mortgage for five years. In applicant 2’s 2018 statutory declaration she states that after she paid the loan amount the bank told her the loan would be null and void in their records and that they would release the title to her in five years. Although the applicant claims that the Bank will not release the title to her after the five year period the Tribunal considers this is speculation on the part of the applicant; in the Tribunal’s view the evidence does not support this claim as the bank has indicated in its correspondence that its policy is to withhold the title for the five year period. The Tribunal finds that there is not a real chance or real risk that the applicant will suffer serious harm or significant harm for the purposes of the Migration Act because of these actions/transactions on the part of the bank in relation to applicant 2’s housing loan and its repayment.

    Claims in relation to Land Rights

1. Having regard to the country information consulted by it, and referred to above, the Tribunal accepts that there have been changes to land tenure in Fiji and that a land trust board holds all indigenous land in a statutory trust under the provisions of legislation and administers the land on behalf of the land owners; monies received by the board by way of rents and premiums in respect of the land are distributed by the board to all members of the relevant proprietary unit. All indigenous Fijians are automatically registered upon birth into a register of native landowners.  

2. Applicant 2 claims in her 2018 statutory declaration that as an indigenous Fijian by right she is a land owner but the current government land policies deny her land rights and her access to subsistence; she claims that if she wants to use her land she has to lease it. Applicant 2 told the Tribunal at the hearing that the current government denies land owners their ownership of the land and has marked off their crop growing boundaries so that they will not be able to survive. The Tribunal reminded applicant 2 that she had told the Tribunal that she had family members who remained living and working in Fiji without difficulties who were surviving there; she told the Tribunal that apart from one sister who migrated to Australia around 2000 she had two sisters with husbands and children living in Fiji. One sister was a [Occupation 4] and her husband worked at a [business] and the other sister stayed at home and her husband worked; they all live together in the family home in Fiji. She said that she was in contact with them in Fiji and they are “not really” having any problems, apart from worrying about the house loan issue and the title being kept with the bank. She said otherwise they had no problems. Further she told the Tribunal that she herself had been living and working in Fiji for many years travelling to and from Australia without difficulty. Further when the Tribunal asked applicant 2 how she claims the changes to the land tenure affected her, or had an impact upon her, she said that it is just about their rights and that they have no voice. She said that other people can get a licence to use their land. When the Tribunal asked her if she/her family get payments from the use of the land she said that that their land is untouched by the government as it is hard to access but there is a claim in relation to her father’s land. She said that her husband’s land is used but their payments for the use have been held up.

3. The applicant in his 2018 statutory declaration claims that he has suffered harm because the government in Fiji has implemented changes to traditional ownership of lands and the government has usurped the rights of the chief; his family has no rights to use the land for subsistence and is planning to engage a lawyer to take action to recover royalties as they have not been paid for timber cut from their land. He fears harm because of his association with his family with whom he is in contact.

4. The applicant told the Tribunal at the hearing that a lot of the rights of land owners have been taken away and complaints fall upon “deaf ears”. The applicant said that the people to whom you take complaints are the one “doing these things”. When the Tribunal asked the applicant how the land tenure changes affected him, he said that the issue is the suppression of people’s rights, he is concerned that the land is no longer privately owned. They cannot stop people accessing resources on lands because the government gives licences to outsiders to access resources on the lands; if they try to do so they will be stopped by the military. Although the applicant claims that there is no fairness to complain about land rights and they will be targeted if they try to stop people using their land he also indicates in his 2018 statutory declaration that his family are planning to take legal action to recover royalties for the use of their land under the changed land tenure scheme. Although the applicant mentioned his family being denied the land for subsistence the Tribunal does not accept that the applicant/his family are denied subsistence in Fiji. He told the Tribunal that he has [a number of siblings] living in Fiji and that they live in different places in Fiji, including in [City 2] and [Town 1]. He said that they are all married with families and their children who have gone through the education system are working and supporting the families. He said that his [relative] who is a Sodelpa member now works as a [Occupation 5] after he was sent from Parliament.

5. The Tribunal accepts that the applicants are concerned that there have been changes to land rights/tenure of indigenous Fijians in Fiji but the Tribunal finds that there is not a real risk or real chance that the applicants or either one of them will suffer significant harm or serious harm in Fiji because of the changes to their/their family’s land tenure in Fiji.

   Connection/association with family members in Fiji

6. The Tribunal does not accept as true that the applicant, or applicant 2, fears harm in Fiji because of his/her association with/connection to family members.

7. The Tribunal finds that there is no real chance of serious harm or real risk of significant harm for the applicant because of his association with his family members in Fiji with whom he is in contact, including because they are planning to take legal action to recover royalties from indigenous lands in Fiji. The applicant has described no difficulties that his family members are having in Fiji. Although he told the Tribunal that his elder brother was asked questions about him (the applicant) by the police in 2017 the Tribunal does not accept this claim is true, as discussed above. Although the applicant mentioned his [relative] being expelled from his role in Parliament he told the Tribunal that his [relative] has remained living in Fiji and is working as a [Occupation 5] there now and is still himself a member of the opposition party,  Sodelpa. The applicant described no further difficulties that his [relative] was encountering in Fiji.

8. To the extent that she makes the claim the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for applicant 2 because of her association with family members in Fiji.  Applicant 2 claims in her 2018 statutory declaration that her husband, the applicant has a [relative] in Fiji who is a member of Sodelpa and that he has been suspended from Parliament because of what he said. The Tribunal does not accept that applicant 2 will suffer harm because of her husband’s [relative] given that the applicants’ evidence is that the [relative] himself remains living and working in Fiji without problems and remains a member of the opposition party, Sodelpa. Applicant 2 also said that [Mr A] (opposition [party senior member]) is her [distant relative]. In the Tribunal’s view if the applicant feared harm for this reason she would not have returned to Fiji after leaving there, including on two occasions since leaving there in 2014. Given that on the evidence before it applicant 2’s family connection to [Mr A] is not a close one, and that she has returned to Fiji from Australia twice since leaving there in August 2014, without having any difficulties from police/authorities there, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for the applicant because of her family connection to [Mr A].

   Membership and activities in Australia with Sodelpa

9. Both applicants claim that they are registered members of Sodelpa, the opposition party in Fiji, that they have supported and engaged in activities of Sodelpa in Australia and will be persecuted for their political opinion if they return to Fiji. They have produced to the Tribunal three letters from Sodelpa in support of their claims.

10. The applicant told the Tribunal that he began getting involved with Sodelpa in March 2016 when Rabuka came to Australia; he became a member of Sodelpa and attended three of meetings during 2016, 2017 and in 2018, and gave financial support to Rabuka’s campaign. The applicant said that he is also involved in fund raising like selling tickets. He last went to a fundraiser for Sodelpa in 2018; he attended only one event in 2018 when Rabuka was there and could not attend other events in 2018 or in 2019. The applicant told the Tribunal that he was not registered as a member of Sodelpa before he made the protection visa application because the party was not registered then; although they occasionally attended some casual meetings in houses in 2016 these were not big meetings and the Rabuka meeting was the highlight. The applicant said that he joined Sodelpa because he wants to support a change of government in Fiji.

11. The Tribunal raised with the applicant that country information consulted by it indicates that it is high profile people and leaders of opposition that have difficulties in/returning to Fiji because they are of interest to authorities due to their political opinion rather than people like himself.  The applicant responded, saying that could be correct but locally there is evidence people are taken privately and that happened to some individuals. When the Tribunal asked him why he thought that could happen to him he said that it was because of the legal proceedings they had taken and that things could go wrong in Fiji as there was no safety there. The Tribunal does not accept that be will be taken by authorities in his country, including because he commenced /legal proceedings for the reasons given above in this decision under the heading “Legal proceedings commenced by the applicants against police”.

12. Applicant 2 told the Tribunal that she is afraid of harm and cannot return to Fiji because of her political involvement with Sodelpa against the government. She states that “they” (the Fijian authorities) are aware she is here in Australia and involved with Sodelpa including on [social media]; they are aware she is a whistleblower and will speak up. She told the Tribunal that she first became involved with Sodelpa in Australia and this was around March 2016 when she made the protection visa application and when Rabuka first came to Australia. She previously voted for Fiji First when she was in Fiji but moved away from that party after they came to Australia. Her first activity with Sodelpa was in March 2016 at the visit of Rabuka. She told the Tribunal that her activities with Sodelpa include going to meetings and fundraising activities and helping [at various events]; she has attended about 7 meetings. She described herself as an ordinary member of Sodelpa who helps with administrative support for the NSW Party. She told the Tribunal that she is also involved with [promotional activities] through which she gives out information about Sodelpa meetings and fundraisers and last did this from January to October 2017. She also told the Tribunal that she has made comments on [social media] in support of Sodelpa from 2016 and has discussions with others on [social media] who support Fiji First Party. The Tribunal raised with applicant 2 that country information consulted by it indicates that it is not low profile or ordinary members like herself, but rather high profile people and leaders of opposition parties, that have difficulties in/returning to Fiji because they are of interest to authorities due to their political opinion. Applicant 2 responded, saying in Fiji people are suppressed, and there are discriminatory things in place if you don’t carry out top officers’ directions, like your pay being cut, although she agreed that her pay was never cut. She said that what she says does not go down well and she is victimised in a subtle way.

13. The Tribunal asked applicant 2 about the document dated 2 August 2018 from Sodelpa NSW, given to the Tribunal in support of their application and the comments in that document that she and her husband had to flee Fiji due to threats and persecution from the police department. Applicant 2 told the Tribunal that she gave the writer that information as at the meeting they shared this.  

14. Having regard to all of the evidence before it, including the documents produced in support of the applicants’ claims, the Tribunal accepts and finds that the applicants are registered members of, and supporters of, Sodelpa in Australia and have been such since about March 2016, that is, about the time they made their application for protection visas. It accepts they have been involved in  a limited number of meetings and fundraising activities of Sodelpa on the occasions and in the manner that they claim and that applicant 2 has been involved in [communications] as she explained to the Tribunal and has left some comments/exchanged comments with others on [social media] about Sodelpa. The Tribunal accepts that the applicants will support Sodelpa if they return to their country, and will do so as they have done in Australia, as ordinary members.  However given the applicants’ evidence to the Tribunal about their relatively low level role in the activities of Sodelpa in Australia, and having regard to the country information consulted by it, the Tribunal finds that there is not a real chance of serious harm, or real risk of significant harm for the applicants or either one of them because of their membership and activities with Sodelpa in either Australia or in Fiji.

    CONCLUSION

15. Considering the applicants’ claims both individually and cumulatively, the Tribunal finds that for the purposes of the ‘refugee’ criterion the applicants do not have a genuine fear founded upon a real chance of persecution for one or more of the reasons of his/her race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if they, or either one of them, return to their country.  Further the Tribunal finds that for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants, or either one of them, being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicants, or either one of them, will suffer significant harm. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants protection visas.

    Christine Long
    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.

    …