1611139 (Refugee)

[2019] AATA 3207

1611139 (Refugee) [2019] AATA 3207 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611139

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Paul Noonan

DATE:18 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2019 at 2:52pm

CATCHWORDS

REFUGEE – protection visa – Fiji – race – ethnic Indian – political opinion – political instability – particular social group – failed asylum seeker – employment – land resumption – fear of physical assault – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91R
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
SZRSN v MIAC [2013] FCA 751
SZRTN v MIAC [2013] FCCA 583

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Fiji, applied for the visa on 15 July 2014 and the delegate refused to grant the visa on 4 July 2016.

3. The Department conducted an interview with the applicant in respect to his protection claim on 28 June 2016. The applicant has provided the Tribunal with a copy of the Departments subsequent decision, made on 4 July 2016, to refuse the applicant’s claim for protection.

4. The applicant appeared before the Tribunal on 1 February 2019 to give evidence and present arguments. The applicant also appeared before the Tribunal in a further hearing on 4 March 2019.

5. The Tribunal noted that the applicant presented a medical note, without a letterhead or medical registration number, dated 16 January 2019 at the commencement of the first hearing. The letter from [a named doctor] stated that the applicant has been attending her medical clinic since March 2018 for the purpose of receiving ongoing treatment for anxiety and depressive symptoms. The Tribunal confirmed this information with the applicant and asked if he was in a fit state to continue with the hearing. The applicant confirmed that he considered he was in a fit state to continue with the hearing. The Tribunal proceeded with the hearing and was mindful of the applicant’s stated conditions. The Tribunal found the applicant to be lucid and cognisant throughout the hearing.

6. At the commencement of the second hearing the applicant noted that he is receiving treatment for anxiety and depression and seeing a doctor every two weeks. He feels much better however his memory can be unreliable at times. The applicant again confirmed that he considered he was in a fit state to continue with the hearing. The Tribunal proceeded with the hearing and was mindful of the applicant’s stated conditions. The Tribunal found the applicant to be lucid and cognisant throughout the second hearing.

   RELEVANT LAW

7. 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, the applicant 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.

   Refugee criterion

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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 a protection 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 the applicant 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The Applicant’s Background

22. It is not in dispute that the applicant is a Fijian national and he has produced to the Department a copy of his Fijian passport. The Tribunal finds that the applicant is a citizen of Fiji and has assessed his claims against that country as his country of nationality and the receiving country.

23. Nor is it in dispute that the applicant travelled to Australia on a [temporary] visa valid arriving [in] February 2012. The applicant subsequently applied for a further [temporary] visa and eventually a bridging visa expired on 16 August 2012 and he became an unlawful non-citizen until 15 July 2014 when he lodged his claim for protection.

24. The applicant informed the Tribunal that he had what he considered to be a difficult childhood. His parents both suffer from alcoholism. He suffered abuse as a child. His parents separated when he was a child. He left high school in year [number] and moved from [his town] to Suva. There he worked odd jobs and also started having problems with alcohol. However in 2004 he commenced [a specified college] course in [an industry] by correspondence and achieved a Certificate Two qualification. He continued to struggle and spent time as a homeless person. He also worked for a few months as [an occupation]. He also was in a relationship from 2006 to 2012, when his girlfriend left him. In 2012 his [relative] who lives in Australia, together with his family and himself made arrangements financially for him to travel to Australia.

25. The applicant informed the Tribunal that the purpose of him travelling to Australia was to get away from his past. At this time he was also baptised a Pentecostal Christian. He has continued to pursue his religion in Australia. The Tribunal also noted written submissions presented in the evidence attesting to the applicant’s good character while he has been in Australia. The Tribunal accepted this evidence as true in respect to the applicant’s ethnicity, place of origin, background and good character while being in Australia.

26. The applicant informed the Tribunal that he was in a car accident about a year ago. At that time he lost his job and his girlfriend and it was these events that caused him to become depressed. However the applicant noted that he has since resumed work as [an occupation] in a [business] and he also works [in this occupation] at [a named agency].

    Claims for protection

27. In his original written claim for protection the applicant provided the following information:

    ·In respect to the question asking why did he leave Fiji the applicant wrote that: “he left due to the situation in Fiji at that time. It is so hard to make a living. The rise in prices and also it is hard looking for a job so I can support my family. The cost of living is so expensive and it is unaffordable. So I decided to come to Australia to find a job so I can support my family back home. I find Australia a place to earn and make a living and for a bright future for my family”. 

    ·In respect to the question have you experienced harm in Fiji the applicant wrote that: “ as an Indo-Fijian we have experienced a lot of persecution and hardships after the coup. They take back the land that belong to us and demolished out houses. We have been abused physically and verbally. I have no choice because of my safety and also for my future and my family I have to move to Australia. For a safer future”.

    ·In respect to the question asking what does he fear may happen to you if you go back to Fiji the applicant wrote: “There is an upcoming election and I fear that there might be another coup and there will be more harm for me”.

    ·In respect to the question asking who he thought may harm/mistreat him if he went back the applicant wrote: “The military and landowners”.

    ·In respect to the question asking why do you think this will happen to you if you go back the applicant wrote: “If this is what has happened in the past there is no doubt it can happen again”.

    ·In respect to the question asking do you think the authorities of that country can and will protect you if you go back the applicant wrote: “There is a new constitution now that we have to forgive those that are involved in the coup and that clearly guarantees that anyone can do the coup because they know they will be forgiven. But it cannot guarantee us that we will be protected if we go back”.

28. The Tribunal discussed the reasons for well-founded fear of persecution contained within the refugee definition in Article 1A with the applicant. The applicant confirmed that he considered his claims primarily met reasons related to race and political opinion. However it was apparent to the Tribunal during the hearing that the applicant also had concerns in respect to reasons related to his membership of a particular social group, being failed asylum seekers returning to Fiji and also unemployed people living in poverty. The Tribunal proceeded to consider the applicant’s reasons.

    Race

29. The applicant informed the Tribunal that he had experienced harm from both Indo-Fijians and Indigenous-Fijians due to his mixed ethnic heritage when he was in Fiji. When asked to recount what significant harm he had experienced in the past due to race the applicant informed the Tribunal that he had primarily experienced verbal abuse. He had also experienced a one off instance of physical abuse perpetrated by an Indigenous-Fijian man in Suva. He had abused him as being Indian and he had got into a fist fight with him. The applicant confirmed he had not sought medical treatment nor reported the matter to police. He had not reported the matter as he was afraid that any subsequent police action may lead to reprisals against him from the perpetrator or his friends.

30. The Tribunal put to the applicant that, as set out in the Department’s decision dated 4 July 2016, the applicant had informed the Department in an oral interview with the department conducted on 28 June 2016, that he had been beaten, stripped naked and left with nothing years ago and that following the last political coup he was bashed many times. The Tribunal put to the applicant that it considered it implausible that he would not have documented such incidents in his written claim or that he would not have reiterated such incidents to the Tribunal when questioned about past harm he had experienced. The Tribunal put to the applicant that his changing story in respect to past significant harm he has experienced may cause it to doubt the truth of his claims in this respect. The applicant stated that he may not have mentioned the incident of being beaten and stripped naked in his written claim as he was confused and did not understand the question being asked of him.

31. The Tribunal considered it implausible that the applicant would not have mentioned his subsequent claims made verbally to the Department of serious physical harm where he stated he had been beaten, stripped naked and left with nothing and bashed many times in his original written claim for protection (where he was asked directly what harm he had experienced in the past) or when subsequently asked what harm he had experienced in the past by the Tribunal.

32. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility[1].  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court, Foster J at 482

33. For the following reasons the Tribunal does not accept that the applicant has experienced any serious harm in the past or faces any serious harm in Fiji in the reasonably foreseeable future due to his race from any person or authority.

34. Firstly in his claim for protection the applicant wrote that his reasons for leaving Fiji were related to the poor economic conditions in Fiji and his desire to access a higher standard of living in Australia. He did not mention fear of serious harm. The Tribunal put this to the applicant. The applicant answered that he potentially had not understood the question. Further he is giving his reasons for leaving today. In addition he had many reasons for leaving, maybe he did not think of the top reason for leaving at that time. The Tribunal considered it implausible that the applicant would not mention fear of serious harm as a reason for leaving Fiji in answer to this question had he left Fiji genuinely holding such a fear. The Tribunal also did not accept the applicant’s explanation at hearing that he may have not understood the question (which asked him directly why he had left the country) as being plausible.

35. The Tribunal also considered it implausible that the applicant would not have detailed in his original written claim his subsequent claims, made verbally to the Department, of serious harm where he stated he had personally been beaten, stripped naked and left with nothing and bashed many times. Further that he would not have detailed such experiences to the Tribunal when asked what harm he had experienced in the past instead of recounting a one off fight involving racial slurs.

1. The Tribunal considered that the applicant has made changing claims in respect to specific incidents of physical violence he has experienced in the past. The Tribunal did not accept that the applicant had been bashed many times or beaten, stripped naked and left with nothing many years ago due to his race as he had provided inconsistent evidence in this respect which the Tribunal found to be implausible and not credible. Such events would be highly significant in the applicant’s life and the Tribunal would expect consistency in the applicant’s evidence due to this. In respect to the applicant’s medical evidence the Tribunal noted that he was receiving treatment well after his written claims were made out. Further there was nothing within the medical evidence before the Tribunal to suggest that the applicant’s ability to recall such significant events would be materially impaired. Further, as noted above, the applicant appeared lucid and cognisant throughout the hearings.

2. The Tribunal also clarified with the applicant at the second hearing that he had not experienced any physical harm from the police, military or authorities during his time in Fiji. The applicant confirmed he had not. After considering the evidence in respect to this claim the Tribunal did not accept that the applicant had been beaten, stripped naked and left with nothing by fellow ordinary Fijian citizens or that he had been bashed by fellow ordinary Fijian citizens on a regular basis for reasons related to his race.

3. The Tribunal also referred to country information within the latest Department of Foreign Affairs and Trade (DFAT) country report in respect to race within Fiji. The Tribunal was unable to locate any information dealing with people of mixed Indo-Indigenous-Fijian heritage. However in respect to Indo-Fijians, which the applicant stated was how he was mainly identified as when being abused, the report states that:

   Instances of official discrimination against Indo-Fijians are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.

   In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists. For example, it is common for Indo-Fijians to drink kava (yaqona in Fijian; a plant of Pacific origin with sedative effect and a central role in traditional Fijian ceremonies), and for Fijians to eat curries and to celebrate Diwali. Many Indo-Fijians identify primarily as Fijian and secondarily, or not at all, as Indian. However, there are some Indians who strongly maintain Indian pride and refer to themselves as ‘Indians’. Many Indo-Fijians, particularly in rural areas, speak or understand Fijian.

   Overall, DFAT assesses that Indo-Fijians face a low level of official and societal discrimination based on their race/nationality.[2]

   [2] Department of Foreign Affairs and Trade – Country Information Report – Fiji, 27 September 2017, p.13.

4. The Tribunal noted that country information indicates that generally Indo and Indian Fijians coexist amicably. There was no change in government in the recent 2018 elections and the election was reported to have been transparent and credible[3]. In light of this the Tribunal considered it is reasonably to conclude that the non-discriminatory racial policies mentioned in the latest DFAT report will be maintained. The Tribunal put this country information to the applicant and noted this may indicate there is no real chance that he would face serious harm amounting to persecution should he return to Fiji now or in the reasonably foreseeable future. The applicant informed the Tribunal that he was unable to comment on the current situation as he took no interest in the current state of Fiji. He wanted to leave behind his bad memories of the place and forge a new life for himself in Australia. The Tribunal asked the applicant if his brother, who resides in Fiji had experienced any racial harm. The applicant noted that he had not but also that he appeared more Indo-Fijian than he does.

   [3] >

   The Tribunal noted that the above country information indicates there is some low level official and societal discrimination based upon race. In light of this country information the Tribunal accepted the applicant’s evidence that he had been involved in a one off altercation with another man in which race was raised. The Tribunal also accepted that the applicant has experienced occasional verbal abuse due to his race in the past, especially following on from the last coup. Having considered the applicant’s claims in respect to race the Tribunal did not consider that the incidents of harm raised by the applicant which have been accepted by the Tribunal, constituted serious harm with reference to the non-exhaustive examples listed at s.91R(2). Having considered the applicant’s claims of past harm in respect to race and his evidence to the Tribunal, in conjunction with recent country information, the Tribunal concluded that there is no real chance that the applicant will face serious harm amounting to persecution should he return to Fiji now or in the reasonably foreseeable future for reasons relating to race.

   Political Opinion

5. The applicant informed the Tribunal that his political concerns were related to the possibility of a further political coup occurring in Fiji. He could not recall exactly when the coup occurred. He was not involved in politics in any way and never has been. He feared further violence should a coup occur in the future and noted the constitution provided immunity for perpetrators of previous coups. The Tribunal noted that the last coup in Fiji was in 2006.[4] Since then there had been open elections. Country information states that Fiji’s 2013 Constitution provides for a Westminister system of government. The parliament is elected on the basis of proportional representation, through a multi-member open lists system and elections must be held every four years. Elections were held in 2014 in which the current government won a substantial majority in Parliament.[5] The Tribunal also put to the applicant country information that set out that the current government enjoyed overwhelming support from Indo-Fijians at the election in 2014[6]. As noted above this situation did not change following the 2018 elections.

   [4] Department of Foreign Affairs and Trade – Country Information Report – Fiji, 27 September 2017, p.4.

   [5] DFAT Country Information Report – Fiji, 27 September 2017, p. 8

   [6] DFAT Country Information Report – Fiji, 27 September 2017, p. 14

6. The Tribunal considered the applicant’s concerns in respect to a future coup are purely speculative in nature in light of the country information set out above. Further the Tribunal noted that the applicant is not involved in politics and has not suffered any serious harm as a result of the previous coup. The Tribunal concluded that there is not a real chance that the applicant will face serious harm amounting to persecution should he return to Fiji now or in the reasonably foreseeable future for reasons relating to his political opinion.

   Membership of a particular social group – failed asylum seeker returning to Fiji

7. The Tribunal also noted that the applicant raised with the Department that he feared serious harm due to his application for protection in Australia. The Tribunal raised this with the applicant and asked how the Fijian authorities would ascertain that he had made such an application. The applicant stated that his family knows he has made the protection claim. He has also met Fijians in Australia and therefore this information may be passed to Fijian authorities. When asked why Fijian authorities would target him for this reason the applicant was unable to provide a reason. The Tribunal pointed out to the applicant that this was not raised as a concern in either the latest DFAT report on Fiji or in the USA Department of State Country Report on Human Rights Practices for 2017 – Fiji which the Tribunal had reviewed. The Tribunal considered the applicant’s fear of harm in this regard is purely speculative and that there is no basis for this speculation provided either in his evidence to the Tribunal or in the country information before the Tribunal. The Tribunal concluded that country information indicated that the applicant does not face a real chance of serious harm due to him being a failed asylum seeker returning from Australia now or in the reasonably foreseeable future.

   Membership of a particular social group – unemployed people living in poverty

8. The Tribunal discussed the applicant’s concerns in respect to the claim that he feared economic harm should he return to Fiji. He contended that if he returned to Fiji he would suffer economic hardship. He would be homeless and suicidal. The applicant submitted that there are limited employment opportunities in Fiji and his prospects are better in Australia. The Tribunal considered the applicant’s fear of harm in respect to this claim was due to the prevailing economic conditions in Fiji.

9. The applicant made no claim that his fear in respect to this claim was because he would be singled out for persecution by a persecutor in Fiji, either implicitly or due to an imputed attribute, due to his membership of this particular social group. Accordingly the Tribunal found that the persecution feared was not related to a Convention reason.

   Conclusion – refugee claims

10. On the basis of the evidence before it the Tribunal finds that the applicant would not face serious harm amounting to persecution should he return to Fiji now or in the reasonably foreseeable future for reasons related to race, political opinion or his membership of a particular social group being failed asylum seekers returning to Fiji of for reasons related to nationality, religion or membership of any other particular social group. On consideration of the above findings, including that the Tribunal’s findings in respect to the applicant’s claim in respect to economic hardship, the Tribunal finds that the applicant does not have a well-founded fear of persecution should he return to Fiji.

11. For the reasons given above, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason. The Tribunal was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). The Tribunal therefore finds that the applicant is not a refugee.

12. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a),the Tribunal considered the alternative criterion in s.36(2)(aa). This requires the Tribunal to consider whether it has 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 the applicant will suffer significant harm.

    Are there substantial grounds to believe that the applicant will suffer significant harm if he is returned to Fiji?

13. In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that a ‘real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well founded fear’ in the Refugee Convention definition.

14. As detailed above the Tribunal has not found there to be a real chance that the applicant will suffer serious harm on the basis of his political opinion or membership of a particular social group being a failed asylum seeker returning to Fiji, should he return to Fiji now or in the reasonably foreseeable future.  For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any reason relating to his political opinion or as a failed asylum seeker returning from Australia as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji.

15. In respect to claims made on race grounds the Tribunal has found harm experienced by the applicant did not involve serious harm. The Tribunal therefore considered whether, as a necessary and foreseeable consequence of the applicant returning to Fiji, that there is a real risk that the applicant will suffer significant harm due to race.

16. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A).[7] Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The Tribunal noted the country information cited earlier in these reasons which sets out that that the current government has a non-discriminatory policy setting in respect to race. Further that in general, Indo-Fijians and indigenous Fijians co-exist amicably. The Tribunal noted the applicant stated he could not comment on the current situation in Fiji in respect to race relations. The Tribunal accepted the cited country information reflected a relatively benign situation in respect to race relations in Fiji at the present time. As such the Tribunal did not consider that as a necessary and foreseeable consequence of the applicant returning to Fiji, that there is a real risk that the applicant will suffer significant harm due to his race. 

    [7]         SZRTN v MIAC [2013] FCCA 583 (Judge Nicholls, 21 June 2013) at [43] (upheld on appeal: SZRTN v MIBP [2013] FCA 1156 (Foster J, 6 November 2013)). The Court said (at [43]) that the ‘technical’ meanings of the different types of significant harm, derived from academic studies, do not assist in light of the definition of harm in the Act, and rejected the applicant’s contention that the Tribunal ought to have had regard to external authorities (at [50]). See also SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [24] where the Court stated that the definition of ‘significant harm’ in s.5(1) of the Act makes clear that the list of categories is an exhaustive one.

17. The Tribunal also considered the applicant’s claims in respect to the prevailing economic conditions within Fiji and the impact this would have upon him should he return to Fiji. The applicant claimed that he would be unable to find a job, would be homeless and may commit suicide.

18. The Tribunal noted that the applicant had previously worked in Fiji and obtained qualifications. Further, that since being in Australia, he has worked [in a specified industry] and that he currently does so. The Tribunal put to the applicant that country information states that:

    The fundamentals of Fiji’s economy are broadly sound. GDP is estimated to have grown by 4.2 per cent in 2015 and 2 per cent in 2016, with the slowing largely due to the effects of Tropical Cyclone Winston (February 2016). The cyclone caused an estimated AUD1.2 billion worth of damage, equal to almost 20 per cent of GDP. Economic growth is forecast at 3.8 per cent in 2017 and around 3 per cent in 2018 and 2019. Growth continues to be driven by the services sector (tourism and retail), construction and manufacturing, and is supported by low interest rates and continued low fuel prices. GDP per capita in 2016 was an estimated AUD6.5 billion and the World Bank classifies Fiji as an upper middle income country.[8]

    [8] DFAT Country Information Report – Fiji, 27 September 2017, p. 6

19. The Tribunal asked the applicant to comment on the country information in respect to the economy in Fiji, and noted that, when looked at in conjunction with his qualifications and work history, this suggests he would be likely to be able to find a paying job in [his current] industry in Fiji should he return. The applicant contended that he may not be able to get a job as he did not finish high school. Employers look for this in Fiji. Further there are less jobs in Fiji than in Australia. His mother advises him that economic conditions in Fiji are not good and she advised him to stay in Australia.

20. The Tribunal acknowledged the applicant’s evidence of past periods of homelessness in Fiji and his concerns in respect to high school. However since then he has gained [industry] qualifications and extensive work experience. He is also currently working in two paid jobs. In light of the country information in respect to the Fijian economy, which states that the economy is broadly sound with growth being experienced in the services sector, the Tribunal considered the applicant broadly has a prospect not less than his fellow Fijian citizens of finding gainful employment in Fiji and that his prospects of doing so are reasonable. 

21. Having considered the applicant’s evidence in respect to the prevailing economic, living and employment conditions in Fiji, in conjunction with recent country information, the Tribunal concluded that there is no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Fiji that there is a real risk that the applicant will suffer significant harm due to the prevailing economic conditions in Fiji.

    Conclusion – Complementary Protection

22. In summary, and having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any reason relating to his race, political opinion or as a failed asylum seeker returning from Australia or as an unemployed person living in poverty as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji. Nor does the Tribunal accept there is a real risk the applicant will suffer significant harm for any other reason as a necessary and foreseeable consequence of his removal to Fiji. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

    Conclusion - Overall

23. 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).

24. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Paul Noonan
    Member