1611310 (Refugee)

1611310 (Refugee) [2019] AATA 984 (2 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1611310
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Angela Cranston
DATE:2 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 02 January 2019 at 11:45am

CATCHWORDS
REFUGEE – protection visa – Fiji – member of a social group – Sodelpa – imputed political opinion – critical of the government – attacked by officials – delay in applying for protection – mother in Fiji ill – credibility issues – inconsistent evidence

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-5LA, 36, 65, 424A, 438, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 1 April 2016. The applicant stated the following:
I am afraid to return to Fiji because if I return my life is in danger from the Fijian military.
Before I left Fiji I experienced serious harm because my support of Sodelpa and my criticism of the Fiji First Party and its leader Mr Binimarama. I was falsely accused of [damaging] a military officer’s vehicle and beaten.
[Criminal] incident [date]-[date] August 2014
Two military officers who live near our house park their two vehicles opposite my house. [They] always parked the vehicles at that spot.
On Friday night [date] August 2014 one of the vehicles [was damaged]. The next day there was tension around my place because of this. The army officer who had the [vehicle damaged] came to my house with two army officers around 6pm on Saturday and told me that someone saw me near the vehicle and I was the one who did that. I said I swear to God I have nothing to do with this, he said you were talking bad of the military for the last two weeks and look at your SDL flag, you are the only one who would do that. He held me by the neck and the two others started hitting me and I told them, You know about me I am not that kind of coward and I do things openly not like a coward. He said you are a coward and that’s why you say bad things about good military men. Did you serve your country like us you are just a coward you are afraid of your life you are not a real man. If we confirm that it is you then your life won’t be spared. Just be on the alert we are watching you. We will come back soon and they left.
I was worried as to who told them that I was around the vehicle that night [it was damaged]. I know there are three Fiji first party supports around my place and any one of them may have just dobbed me in although I don’t have a clue as to who would have the courage to do that.
[date]/8/2014-[date]/8/14 incidents
[Mr A], who was the local Sodelpa candidate for my area asked me to come to his rallies to give security to him.
On [date]/8/14 there was a Sodelpa election rally in [location in] [Town 1]. The SDL candidate was [Mr A] and I was close to him and strongly supported him. I attended with two of my friends [Mr B] and [Mr C]. We were at the back of the crowd and we were asked to keep an eye for any attempt at disruption and/or threat to [Mr A].
The rally started [and] there were [several] people. While we were listening to the speeches someone threw a stone at us and it hit my mate [Mr C] on his right shoulder. We thought it was coming from a particular house which had a Fiji First Party flag flying in front their lawn. So, the three of us walked towards and asked the people there why they would throw stones at us. They said Lakolaivi meaning in English go away and we have no idea. I said you are just as bad as the dictator who is ruining our country. They said just go away will teach you a lesson. Because we didn’t want this to disturb the rally we just walked away.
We are from a nearby area so they know me and the other friends of mine. The next day was a Saturday I just got back from shopping in town it was around 8 pm I was about to have dinner. There was a twin cabin outside my house and my nephew came running saying sotia, sotia meaning soldier. I got a shock and walked out of the house and saw four people of them two in uniform. The driver and another person were in uniform. The person in the uniform (not the driver) said you [applicant’s first name]. I said yes I am, what’s the matter. He said shut up and come with us. I said what’s wrong and what have I done.
He said shut up and the other two pushed me into the vehicle. My aunty came running but the person pushed her to go into the house.
One of them asked me to take us to the other two troublemakers, I said what do you mean and he said take us to the other two idiots who were insulting our leader at [Mr A’s] rally yesterday. I said to them that they didn’t say anything and he said you are lying and don’t make us more angry just take us to them. I had no choice and took them to where my other two friends were and when we went to their place only one of them, [Mr B] was there and they picked him up. Both of us were taken to the camp and locked in different rooms. We were beaten, verbally abused and asked to run around and crawl on the ground. I was beaten saying that I abused the leader and I said no I didn’t do that they must be lying and they said you are lying.
It was about 11pm and they locked us back in our rooms and asked me to walk home around 5am.
I have had two incidents within a short time and I was afraid that a third one may be round the corner so I decided it is just too dangerous for me in Fiji so I applied and got out of Fiji.
My mum has been ill and I wanted to be with her but people told me her that if I apply for protection visa I cannot go back home even for an emergency that is even if my mum’s health worsened.
So I kept on postponing making the protection visa in case I had to be with my mum if her health gets very serious.
My dad had left my mum and got married again and she has raised me and she has had a very sad life so I didn’t want her to die destitute or without love and care she truly deserved. Lately her health has improved to the point I am satisfied that there is no danger to her life and that’s what the doctors have told her as well.
So I don’t have the impediment to applying for the protection visa and thus I applied for the visa.
The delegate refused to grant the visa and the applicant applied for review.
The adviser wrote the following:
Applicant claims
The applicant experienced two events in which he was seriously harmed because of his perceived actions against the Fijian military and its leader Mr Bainimarama.
The first incident of serious harm took place on Saturday, [date] August 2014.
The second incident took place on Saturday, [date] August 2014
Delay in applying for visa
The applicant had two main reasons for the delay in applying for the protection visa. Firstly his mother was ill back in Fiji. She had brought him up alone after his father abandoned the family. He was reluctant to leave her when he left Fiji due to fear of danger to his life. He was concerned that her health problems might get serious and he may not be able to see her at all until her time comes to leave this world.
Secondly, he didn’t know how to go about applying to stay here permanently. His friend who invited him to come to Australia didn’t provide him much information about it. He met a woman at a Fijian function around the latter part of 2015 who told him that her sister in [Australian city 1] helps people with visa problems. He altogether paid [an amount] to her expecting help with his visa. When eventually there was no help he looked around and ultimately found the migration agent/lawyer through whom he applied for the protection visa.
Although various court decisions state the delay is a factor in taking into consideration whether someone has a genuine fear of returning the country from where they alleged to have fled, when an applicant arrives in Australia he/she is on safe grounds and there are many issues they face in trying to settle down in a new country and the courts do not appear to appreciate the challenges applicants face. The Tribunal being involved merits review is in a better position to understand problems faced by applicants in general and this applicant in particular.
He could not speak much English and although he has been in Australia before he was not familiar with the visa application process in relation to protection visa.
Applicant’s knowledge about Sodelpa and 2014 election
Sodelpa is a party that just changed its name from SDL. Sodelpa still has the letters S, D and L as a reflection of its past. To the general population it is the same party and with just slightly different acronym.
What each of these letters in the party’s name means is more than an academic discussion than anything of serious concern to ordinary Fijians. No wonder the applicant thought that the words SODELPA meant the same as SDL. It is submitted that it is not basic information, because meaning of what the each of the letter mean in the acronym means nothing in the practical sense because it is just a political slogan. The applicant didn’t claim to be a senior party official.
Claimed two incidents
The applicant was only detained once and that he has clarified that with the delegate. He was only detained on the night of [date] August 2014.
A hearing was held on 27 November 2018. The applicant said to came to Australia in November 2014 on a [temporary] visa that ceased 3 months thereafter and had lodged his protection visa application in April 2016.
The applicant stated that he filled out the application form and wrote his English statement with his aunt’s help. She had read the English back to him in Fijian. He also indicated that his adviser had helped write his statement and the application form and had read both back to him and they were correct. The adviser then stated the applicant’s aunt had part completed the form.
The applicant stated that before he came to Australia he lived with his mother in [Town 1] since birth. He had worked in a [workplace] since 2000 and up until he left Fiji.
The applicant stated he came to Australia because of the injuries he suffered when he was once taken to the military barracks on [date] August 2014 for two reasons, firstly because someone [damaged the] military vehicles and secondly they blamed him because he was against the government and a Sodelpa supporter. When asked how they knew he was a Sodelpa supporter he stated there was a Sodelpa flag on his roof. When asked if there are any other reasons that they knew he was a Sodelpa supporter he stated he attended most of the Sodelpa rallies within their area but there were no other reasons.
The Tribunal put to him that in his statement he said there was a rally at which people started throwing stones at him. He agreed stating there was a rally in [Town 1] where his friend asked him to be security. Someone hit one of his friends with a stone and when he asked why, told the applicant to go away and he told them what they had done was an indication of the person who was leading the country. He stated that on Saturday afternoon on [date] August the soldiers came in the vehicles. The Tribunal sought clarification of the date and whether it had occurred in the afternoon and the applicant repeated they came on [date] August and agreed it was in the afternoon. He stated they forced him into the vehicle, collected one of his friends and took them to the barracks and released him [on] Sunday morning. The Tribunal asked why he didn’t talk about this second time when the Tribunal had asked him about how many times he had been to the barracks. He stated his earlier answer had been he had been only once and the Tribunal put to him that his earlier answer had been he went because he had been accused of [a crime] and because he was a supporter of Sodelpa. He stated there were two reasons, one was [a crime] and what had happened at the rally. The Tribunal put to him that he had earlier stated that they knew he was a supporter of Sodelpa because there was a flag on his house. He stated that was the first part of his story. The Tribunal put to him that in his statement he said the soldiers came to his house at 8pm not during the afternoon. When asked to explain he stated they came after dinner.
The Tribunal put to him that when the Department talked to him he stated that he was taken to the camp in the second week of August 2014 and not [date] August. He stated he was only taken once on [date] August. The Tribunal put to him that he told the department he was taken once on [date] August and once on [date] August but then told the department that he was taken in the second week of August. He stated he was confused about the question and was only taken once. The Tribunal put to him that he also told the department that he was accused of [a crime] but did not say that in his statement and also said that the camp incident in the second week of August was the first time he encountered difficulties with the Army but then said he was taken to the camp on [date] August only and that during the other incident they only visited him. The applicant stated on [date] August the soldiers came to his home because they questioned him over the [crime]. The Tribunal put to him that it seemed that his story had changed. He stated there were two reasons, the incident on [date] and [date] August and the incident on [date] and [date] of August.
When asked how he was involved in Sodelpa he stated he was a member and also took part in organising rallies in his area. When asked when the election in 2014 was held he stated November and the Tribunal put to him it was September. When asked about the number of votes Sodelpa received he stated they got 15 seats and 20% plus. The Tribunal put to him that it thought Sodelpa received 28%. When asked about the recent election, he stated Sodelpa received 21 seats and 30% of the votes and the Tribunal put to him that it thought Sodelpa got 40% of the vote.
The applicant said he could not return to Fiji just in case something happened to him again.
When asked why it took more than a year after his [temporary] visa ceased to apply for a protection visa, he stated he didn’t want to apply for a protection visa because his mother was sick. He also stated that in 2016 a [Australian city 1] lady told him she could help secure a protection visa and he had sent her money and instructions to work on his application but she didn’t do anything.
When asked how staying in Australia unlawfully meant he could be with his mother he stated he delayed applying for protection because of his mother’s situation. The Tribunal again asked how he could be with his mother if he was unlawfully in Australia.
The adviser stated the applicant came to Australia and applied for an extension of his [temporary] visa. The Tribunal put to him that on the basis of the department’s records the applicant last held a [temporary] visa on 12 February 2015. The adviser stated his [temporary] visa was extended and provided letters from the Department. The adviser stated the applicant was granted a [temporary] visa on 5 November 2015. The Tribunal put to him that was not consistent with the movement records and there was no evidence of the visa in the applicant’s passport.
The adviser stated that he thought the last time the applicant had a [temporary] visa was in February 2016. The Tribunal put to him that even if that was correct he still didn’t have a visa when he applied for a protection visa in April 2016.
The adviser stated that when you applied for a protection you obtained a bridging visa which meant the applicant could not return to Fiji and even if he got a protection visa, he could not return to Fiji because they would cancel his protection visa.
The agent was then asked to provide oral submissions that did not repeat any of his written submissions. The agent took issue with the Tribunal’s suggestion that he would repeat his written submissions because he said, he was a professional. He also disagreed that the applicant had said that the military came in the afternoon. He also stated the delegate had put to the applicant that he was taken twice and had confused the applicant. He also stated the applicant mixed up dates and got mixed up. He also stated things were still happening in Fiji and the media was controlled by the government. He also stated the applicant had a picture of the person who helped him in [Australian city 1] and he had given money to that person.
The Tribunal put to him that DFAT said that senior members of opposition political parties (those running for office were at a moderate risk of being monitored and intimidated by security services) and that did not suggest to the Tribunal that being a supporter of Sodelpa put one at risk. He stated it happened to them, middle management and anybody including Sodelpa followers.
The Tribunal put to the applicant that it was confused about whether he got a [temporary] visa after he arrived in Australia and stated that his advisor provided a letter however there was no stamp on his passport and it was not in the department’s records.
The applicant stated the letters came from the Department of Immigration. When asked if someone helped him lodge his application for a [temporary] visa in Australia, the applicant stated he got two extensions and his school mate helped him. When asked when the first extension was, he stated he could not remember.
Following the hearing, the Tribunal sent the following letter pursuant to section 424A:
At interview 23 June 2016 the following conversation between you and the Department occurred:
Q. Why were you taken to military camp?
A. The reason why I was taken to the camp was because of my membership or association with Sodelpa and my supporting that party.
Q. When were you taken to the camp?
A. I was taken to the camp during the first and second week of August 2014.
Q. During the first or second week is that what you said?
A. The second week.
Q. The second week of August 2014?
A. Yes…..
Q. Said you were taken to the camp in second week of August 2014…
Q. Was this the first time you would have been taken to a military camp in Fiji?
A. Yes
..
Q. They came to your home on a Saturday in the second week of August what did they say?
A. They accused me of [a crime] because they saw me standing next to one of their military vehicles.
Q. Were they the only accusations they made against you?
A. No, there was another incident on [date] to [date] of August. There was a rally in [Town 1].
Q. This incident in the second week of August in which you were taken to [Town 1] camp was this the first time you ever encountered any difficulties with Fijian soldiers or the military?
A. That was the first time…
Q. Your statement reads as though there was an earlier incident in which people came to your house held you by the neck and started hitting you?
A. Yes they were soldiers too.
Q. So when did that happen?
A. On the second day of August.
Q. When we spoke about this minutes ago you indicated that on the second week of August when you were taken to the camp was the first time you had problems with the military?
A. What I was saying was what happened was on [date] and [date] of August which was a Friday/Saturday….
…
Q. You said you were taken to the camp because of membership and association with Sodelpa and because you had been accused of [a crime]to this vehicle. Had there been any other activities that you were involved in that lead to you been taken to the military camp?
A. The only other incident was on [date]/[date] August 2014.
Q. So what date was this?
A. The [date]/[date] August
Q. What happened on the [date]?
A. A delegate of SDL party asked me to provide security whilst he went on a campaign to speak to his electorate in [location]
Q. Were you providing security to this political candidate?
A. Yes, me and two other mates
Q. Were there any significant problems during this campaigning?
A. There were some protestors demonstrating by throwing stones and rocks.
This information is relevant to the review because the Tribunal may find your answers in relation to when and why you were taken by the military to camp have continued to change, that is in your statement you said that on [date] August 2014 the military accused you of [damaging their vehicles] but did not state they took you to camp and also stated that on [date] August 2014 there was a rally and that stones were thrown and that on [date] August you were taken to camp and accused of insulting the leader at the rally. If the Tribunal finds your answers have changed, then subject to your comments it would not find you credible and would not accept the alleged incidents occurred and subject to your comments, would affirm the decision under review.
Your delay in applying for a protection visa
Movement records you arrived in Australia on [date] November 2014 on a [temporary] visa that ceased on 2 February 2015. You were granted a further [temporary] visa until 27 June 2015 and did not apply for a protection visa until 5 April 2016.
This is relevant because the Tribunal may find that your delay in applying for a protection visa even after you failed to hold a [temporary] visa is not consistent with someone who fled Fiji because it was too dangerous for them to be in Fiji. If the
Tribunal finds that you delayed in applying for a protection visa, then subject to your comments it would affirm the decision under review.

The Tribunal received a request for an extension of time however given that the agent did not address why he needed an extension of nearly two weeks and given that the issues in the 424A letter were discussed at hearing and were the subject of submissions prior to hearing, it decided not to reissue the 424A letter but undertook not to make a decision before the 18 December 2018.
The Tribunal received the following response before that date:
The applicant’s statutory declaration stated that he was visited by the Army on [date] August 2014. Further it stated that on another occasion he was taken to the camp on [date] August 2014.
In the applicant’s answer above the applicant was saying that he was taken to the camp on the second week. Although there is a difference between the second week of August 2014 and [date] August 2014 they are both in August 2014. It was only a short period apart. The Tribunal hearing is not a memory test but an opportunity to understand the applicant’s claims.
The idea of whether it was first time that he was taken to the camp was introduced by the delegate. He later clarified that he was taken to the camp only once and that was on [date] August 2014.
…..
The applicant appears to say that on the first incident ‘they accused me of [a crime] because they saw me standing next to one of the military vehicles’.
He then referred to the incident on [date]/[date] August.
The applicant appears to mix up the dates but not what happened at the incidents. But it is the delegate who introduces the concept of first time and second time. There is also confusion between first time and first of August.
…
The applicant clarified the matters of concern and confirmed that the only incident in which he was taken to the camp was on [date] August 2014.
He also gave details with regards to the second incident.
Conclusion
What all this means was that because of the proximity of the two incidents that applicant confused the dates of the incidents.
He clarified the two incidents. The applicant has clarified that on the first incident which he erroneously stated that took second week of August (instead of saying second day of August)… He then referred to the next incident… But he later clarified the first incident.
Has the applicant’s answers changed
The applicant’s answer has not changed. There was confusion between the dates, second of August, second week of August and [date] August.
He made an error at the beginning by saying that the first incident was on the second week of August instead of saying it was on the second day of August and this led to all the confusion, but the applicant clarified the incident subsequently.
He clarified that there was a first incident in August and then the second incident was on [date]/[date]August.
Delay in applying for the visa
As explained by the applicant at the hearing he had two reasons:
His lack of knowledge about the visa and him being misled by the woman from [Australian city 1] and
His concern is that if he applied for the protection visa he could not go and visit his mother in Fiji who was ill.
Both the reasons are logical.
Once someone reaches the shores in Australia he/she is not in danger of persecution anymore because they are under the protection of Australia. The only thing that may suggest that the person’s life may not be in danger is if the person returns.
If there was a delay, the decision-maker must look at the reasons for the delay.
When an applicant makes an application for protection visa, he/she is given a bridging visa and it takes effect once the substantive visa expires or if the applicant does not have a substantive visa at the time of the application. The applicant will not be able to travel back home from which he fled. This is a significant issue for any applicant.
So if his mother was ill and if she was to become so ill as to fear for her life he would have not been able to travel because he would not be given a BVB to travel. So his understanding in this matter was correct. So he had a genuine reason for delaying the making of the application even though he had a fear of persecution.
Secondly people coming to Australia often do not know about protection visa and the process of applying and are often misled by people in the community and this is common in the Fijian community.
Decision-makers do not understand how difficult it is to understand the visa system and the complexities involved in applying for the visas and especially protection basis.
As the Tribunal has pointed out the courts have held that even three months delay could be considered as adverse.
But in so deciding the Tribunal must consider each case on its merits.
When an applicant comes to Australia he/she sometimes has a relative or friend who provides them good advice and guidance that allow them to make proper decision. In many cases they don’t get good advice and they drag on without knowing what to do.
It is too arbitrary to use the delay in applying for the protection visa as a reason adversely to an applicant.

Country Information

According to DFAT COUNTRY INFORMATION REPORT FIJI dated 27 September 2017:
Opposition parties
3.42 A range of opposition political parties contested the 2014 elections. Most representatives of opposition political parties have told DFAT that police and military routinely monitored and followed them during the campaign. Some reported continuing monitoring in 2017, intensifying in the lead up to the 2018 election. Monitoring was in some cases relatively open and cordial (for example, a polite telephone call enquiring after the subject’s movements and plans), sometimes annoying (for example, a vehicle parked outside the home), and sometimes intimidating (for example, overt police presence at a political gathering).
3.43 Credible contacts allege that the government brought charges against opposition political party leaders, including former Prime Ministers Qarase and Chaudhry, in order to disqualify both from running in the 2014 election: according to the Constitution, individuals convicted of a crime with a maximum sentence exceeding 12 months are ineligible to run as candidates. Charges against Chaudhry relate to bringing foreign currency into the country without informing the reserve bank. Those against Qarase relate to abuse of office while he was Chairman of Fijian Holdings from 1992 to 1995. Credible legal professionals in Fiji assessed that the grounds for bringing these cases to court were weak and pointed out that more serious allegations against other people had not been prosecuted.
3.44 Since Fiji’s 2014 election, three Opposition MPs have been disqualified from Parliament for periods of at least two years:
On 29 September 2016, SODELPA MP Ratu Isoa Tikoca was suspended until the 2018 election for making statements that ‘intentionally targeted Fijians who are Muslims or adherents to Islam’;
In June 2016, National Federation Party (NFP) MP Tupuo Draunidalo was suspended until the 2018 election for insulting the Education Minister; and
In May 2015, SODELPA MP Ratu Naiqama Lalabaluva was suspended for two years for making offensive comments about the Speaker.
3.45 On 10 September 2016, police detained opposition NFP Leader, Dr Biman Prasad; opposition SODELPA Leader, Sitiveni Rabuka; Fiji Islands Council of Trade Unions Leader, Attar Singh; former SODELPA politician and academic, Dr Tupeni Baba; Director of the NGO Pacific Dialogue, Jone Dakuvula; and Fiji Labor Party Leader, Mahendra Chaudhry. They were arrested ‘on suspicion of having breached the Public Order Act 1969 (as amended)’ for attending a public meeting that police had not permitted. Credible sources informed DFAT that all detained were taken to a police station in Suva, charged and subsequently released. Authorities dropped the charges on 17 October 2016, citing insufficient evidence and noting the arrests ‘appeared selective’.
3.46 Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.
According to ABC News, accessed 18 December 2018, The SODELPA party led by Sitiveni Rabuka, secured 39.85 per cent of the votes to become the largest opposition party in the November 2018 election.
According to the Guardian, Fiji's Frank Bainimarama confirmed as election winner with outright majority, Sodelpa candidates won 140,000 votes, or 28% in the 2014 election.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Preliminary matter

As a preliminary matter the Tribunal notes that there is a certificate made by a delegate of the Minister under paragraph 438(1)(a) of the Migration Act in relation to folio 93,97 and 118 of the Department's file[number deleted]. That section permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate 'that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed'. It states that the disclosure of this information would be contrary to the public interest because the folios in question 'contain information relating to an internal working document and business affairs'.
This certificate is clearly invalid and of no effect because the fact that the folios contain information relating to an internal working document and business affairs is not a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed.
However, these documents are not relevant to the issue in this review.

Substantive issue

The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Fiji and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his written application, the applicant stated that on [date]-[date] August 2014 a military vehicle [was damaged] and the next day, army officers approached him around 6pm and held him by the neck and started hitting him and that on [date] August 2014 he was at a Sodelpa rally where stones were thrown at him and the next day, he and his friend were taken to camp by vehicle and beaten and abused. However, at departmental interview the applicant stated that he was taken to camp in the second week of August 2014 which was the first time he was taken and that they accused him of [damaging their vehicles] but when it was put to him that his statement suggested there was an earlier incident, he changed his evidence and said that happened on the first and second day of August. In addition, he stated at interview that on [date]/[date] August 2014 he was again taken to military camp after he provided security to a political candidate and protesters demonstrated by throwing stones and rocks. The Tribunal finds that the applicant’s answers in relation to how often, when and why he was taken by the military to camp have continued to change, that is in his statement he said that on [date] August 2014 the military accused him of [damaging their vehicles] but did not state that after that incident, they took him to camp. He also stated that on [date] August 2014 he attended a political rally where stones were thrown and that on [date] August he was taken to camp and accused of insulting the leader at the rally. While the adviser has stated that the applicant appeared to have mixed up the dates and that it was the delegate who introduced the concept of a first and second time and that the applicant confirmed that that the only incident in which he was taken to the camp was on [date] August 2014 , the Tribunal does not accept that the applicant’s testimony in relation to how often, when and why he was taken to camp could have changed if in fact he had been taken to camp by the military on only one occasion and if he was in fact talking about an event that had actually occurred. The Tribunal also finds that the applicant's delay in applying for a protection visa until 5 April 2016 even though his last [temporary] visa ceased three months after it was granted on [date] June 2015 is not consistent with his alleged claims that it was too dangerous for him to remain in Fiji. In reaching this conclusion, the Tribunal has considered the claim that he lacked knowledge about the protection visa and was concerned that if he applied for the protection visa he could not visit his ill mother in Fiji. The Tribunal does not accept that someone who fled Fiji because they feared harm from the authorities and who subsequently obtained a further [temporary] visa onshore would not have been able to ascertain that he could apply for a protection visa, especially as the alternative was, in the applicant's case, to become unlawful. Indeed, the argument has also been made that the applicant knew about the protection visa but did not apply because he could not visit his ill mother in Fiji. Again, the Tribunal does not accept this was the reason he did not apply earlier given that the applicant has failed to explain how his remaining unlawfully in Australia would result in him being able to visit his mother.
The Tribunal has found is not satisfied that the applicant has been telling the truth when he states that he was questioned or assaulted by the military over [damage to the vehicles]. The Tribunal does not accept that he was at a political rally where stones were thrown, that he insulted the government and he and his friend were subsequently detained by the military or that he suffered physical harm as a result. While the Tribunal accepts that the applicant may support Sodelpa, the Tribunal does not accept that this has led to the applicant being harmed in the past. Given DFAT’s assessment that senior members of opposition political parties and leaders of opposition political parties face only a moderate risk of being monitored and intimidated and that they face a low risk of being arbitrarily detained or otherwise harassed, the Tribunal is not satisfied that the applicant would face a real chance of serious harm based on activity as an ordinary member of an opposition political party or any other opposition political activity. In reaching this conclusion, the Tribunal has considered the news report that states that the Criminal Investigations Department is to investigate the death of a man allegedly assaulted by police, however given the DFAT report, the Tribunal does not consider it logical to extrapolate from that article that the death of a man who was allegedly assaulted by police officers attending a reported disturbance means that the applicant would face a real chance of serious harm.
The Tribunal has considered the applicant's accepted claims both singularly and cumulatively however the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as defined in s5J(4) and s5J(5) because of his race, religion, nationality, membership of a particular social group or political opinion. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees definition.
Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has found that it is not satisfied the applicant has been telling the truth when he states that he was questioned or assaulted by the military over [their vehicles being damaged]. Neither does the Tribunal accept that he was at a political rally where stones were thrown at him and he insulted the government and he and his friend was subsequently detained by the military and suffered physical harm as a result. While the Tribunal accepts that the applicant may support Sodelpa, the Tribunal does not accept that this has led to the applicant being harmed in the past. Given DFAT’s assessment that senior members of opposition political parties and leaders of opposition political parties face only a moderate risk of being monitored and intimidated and that they face a low risk of being arbitrarily detained or otherwise harassed, the Tribunal is not satisfied that based on activity as an ordinary member of an opposition political party or any other opposition political activity there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicant been removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Angela Cranston
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

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.
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.
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.
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.
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.
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

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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 984

2 January 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction