1611491 (Refugee)

[2017] AATA 2848

1611491 (Refugee) [2017] AATA 2848 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611491

COUNTRY OF REFERENCE:                  Fiji

MEMBER:K. Chapman

DATE:13 November 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 13 November 2017 at 6:58pm

CATCHWORDS

Refugee – Protection Visa – Fiji – Imputed political opinion – Related to members of opposition parties – Perceived support for opposition parties – Involvement in coup – Fear of persecution – Fear of violence – Witness credibility – Inconsistencies in submissions – Evasive oral evidence

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 June 2016 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 [in] January 2016. Her claims for protection concern her purported links to [Mr A], [Mr B] (including his family members), and associated persons, which allegedly see her face harm at the hands of the Bainimarama Government in Fiji. The delegate refused to grant the visa on the basis that the applicant was not of adverse interest to the Fijian authorities.

3. [In] July 2016, the applicant applied for review of the visa refusal decision, providing a copy of that decision with her application for review. The applicant appeared before the Tribunal on 24 August 2017 to give evidence and present arguments, being represented by her registered migration agent. The Tribunal received a copy of the applicant’s [Driver Licence] at the review hearing.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

    Country of reference

11. According to the protection visa application, the applicant claims to be a citizen of Fiji. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Fijian national. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

12. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3).

    Issues

13. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Fiji, there is a real risk she will suffer significant harm.

    Documentary evidence before the Tribunal

14. The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:

    a.the applicant’s protection visa application forms lodged [in] January 2016 (including a typed continuation of her answer to question 90 on two separate pieces of paper, extract from her passport, Fijian New Taxpayer Registration, Fijian Birth Certificate, Form 26, Form 160, Form 80, and Form 956);

    b.Statutory Declaration of the applicant dated [in] April 2016;

    c.submission from applicant’s representative dated [in] April 2016;

    d.[information] relating to [Mr B], the Fijian [military], the former Police Chief of Fiji, alleged sexual abuse concerning the military, [Mr A], and Frank Bainimarama;

    e.a ‘Country Information’ index produced by the applicant enclosing various documents such as an Amnesty International report, UN Human Rights Council report, and media articles (and open source internet information) relating to alleged abuse by the Fijian authorities, SODELPHA blog, [Mr B], [and] the Fijian authorities (including the Government, military and police);

    f.Statutory Declaration of [Mr C] dated [in] May 2016;

    g.Statutory Declaration of [Mr D] dated [in] May 2016;

    h.a recording of the Departmental delegate’s interview with the applicant;

    i.the Departmental delegate’s visa refusal decision dated [in] June 2016 (a copy of which was provided to the Tribunal by the applicant);

    j.the application for review submitted on 27 July 2016;

    k.Departmental administrative and Movement records; and

    l.a copy of the applicant’s [Driver Licence] received at the review hearing.

    Claims for protection

15. The applicant’s written claims for protection may be summarised as follows (noting that information additional to the initial written claims was added by subsequent Statutory Declarations, a matter described in further detail later in this decision record):

    a.her biological parents were not married when she was born and the names of her maternal grandparents were recorded on her birth certificate. She was raised by her biological mother and maternal grandparents. The applicant’s biological mother also had [a number of] children to another man, one of which is [Mr C] whom she considers her brother. The applicant’s biological father married another woman who had [a number of] sons from a previous marriage, one of which is [Mr D] whom she considers her step brother. Her [relative], [Ms E], is [related to] [Mr A], who [played a role in the coup] in 1987. The applicant considers [Mr A] her [relative] and his [son] her [relative];

    b.in [2016] a member of the Fijian military conveyed to her [relative] [Mr A] a threat of harm against the applicant due to her caring for the mother of [Mr B] ([Ms F]) and the perception that [Mr B’s family] were assisting [Mr A] to [oppose] the Bainimarama Government, thus implicating the applicant in anti-Fijian Government activity. The threat included receiving the same treatment as Vilikesa Soko, a man previously tortured and killed by the Fijian military. The applicant’s brother, [Mr C], conveyed the threat to the applicant on [in] 2016 during a telephone call when she was advising him of her impending return to Fiji. The applicant’s step brother, [Occupation 1] [Mr D], also warned her not to return to Fiji as he could not protect her (note there is some inconsistency in the applicant’s written claims regarding the conveyance of the purported threat, a matter to which the Tribunal shall later return);

    c.the applicant fears harm by the Fijian authorities due them becoming aware of her [social media] exchanges with relatives in Fiji that link her with [Mr B’s family] and impute her involvement in an alliance between [Mr B’s family] and [Mr A] to [oppose] the Bainimarama Government. She maintains that her communications and those of her family have been monitored by the Fijian authorities;

    d.the applicant was allegedly interrogated in 2001 by the Fijian military during one of the coups;

    e.the applicant’s alleged links with [Ms G], who has allegedly acted as an intermediary between [Mr A] and [Mr B], has drawn her to the adverse attention of the Fijian authorities. [Ms G] is apparently of adverse interest to the Fijian authorities and was also detained by the military during a coup in 2001; and

    f.the applicant’s links with her family, [Mr B’s family], [Ms G] and associated parties place her at risk of harm from the Fijian authorities under the leadership of Frank Bainimarama, such that she cannot return to Fiji, nor can she relocate within Fiji to avoid harm.  

    Evidence at the review hearing

16. The applicant’s oral evidence may be summarised as follows. She informed the Tribunal that she received assistance from her registered migration agent, and her mother who lives in [City 1, Australia], regarding her protection visa application. The applicant confirmed that she completed all of the protection visa application herself by handwriting answers into the forms and typing the supplementary answer to question 90. She also confirmed she typed her own Statutory Declaration dated [in] April 2016. Further, she confirmed that all of her claims for protection were contained in the aforementioned documents. The applicant also informed the Tribunal that she understood her written claims for protection, signed her protection application and Statutory Declaration, and that these documents contained truthful information.

17. The applicant indicated her primary residence was in [City 2, Fiji] from 2002 to 2014, as reflected in her application for protection, although she spent time in [another city] for work purposes. She variously worked at [list of employers]. The applicant has never been charged or found guilty of an offence, she obtained her Fijian passport [in] 2014 in Fiji, she departed legally through the airport in Fiji and arrived in Australia [in] November 2014 holding a [temporary] visa. She confirmed she was granted three further [temporary] visas in Australia [on various dates throughout] 2015. The applicant also confirmed that [in] January 2016 she applied for a waiver of [a visa condition] attached to her [temporary] visa and that [in] January 2016 the request was refused by the Department. It is worth pausing to reflect that the applicant’s written claims indicate she learned of a threat to herself from the Fijian military [in] January 2016 and applied for a protection visa [a few days later].

18. When asked by the Tribunal why she travelled to Australia in November 2014, the applicant advised she came to visit her cousin in [City 3]. The applicant made contact with a friend, [Ms G], who advised her that [Mr B’s family] lived [in City 4] and provided their contact details to the applicant. The applicant subsequently contacted [Mr B's mother, Ms F], whom she had previously known in Fiji, and was invited to stay with her. [A number of] days after arriving in [City 3] during November 2014, the applicant travelled to [Ms F’s] residence [in City 4] and commenced living with [Ms F and two other family members]. According to the applicant, [Ms F] was ill and she agreed to care for her at their family residence. The applicant confirmed to the Tribunal that only those three other persons lived at the residence. She indicated that she applied for extensions to her [temporary] visa in order to care for [Ms F], whose health was deteriorating. She added that she also wanted to reconnect with her biological mother who resides in [City 1]. The applicant apparently had a falling out with [Mr B’s family] following the arrest in Australia of [Mr B] for [matters] in [2017]. Since that time she has resided in [City 1] with her biological mother and has not spoken to [Mr B’s family].

19. When asked by the Tribunal why there were no documents provided in support of her claims for protection from any member of [Mr B’s] family, the applicant initially advised that they had supported her application to waive [a condition] on her [temporary] visa. She added that another lawyer was handling her case at the time, although later in the review hearing she gave evidence that her current registered migration agent (and lawyer) had assisted her with both the [temporary] and Protection visa matters. Following further questioning by the Tribunal, the applicant advised that she had never asked any member of [Mr B’s] family to write in support of her application for protection. The Tribunal raised with the applicant that it might have some difficulty accepting her claims that concern her involvement with [Mr B’s] family, when she did not ask them for any assistance or evidence in her case, particularly given that she was living with them. The applicant responded that most of her discussions with [Mr B’s family] were verbal regarding the application for protection and she didn’t ask any of them for written support. She did indicate she was directed to [independent information] concerning [Mr B’s family] by them.

20. The applicant explained that she sought assistance from [Ms F] in relation to seeking waiver of [a condition] on her [temporary] visa. She indicated she saw a letter from a [doctor] and a letter from [Ms F] regarding the matter of the waiver, but she was not sure if these were submitted to the Department. The Tribunal asked the applicant why she would ask [Ms F] for assistance with the waiver, but not ask for assistance with her application for protection, and indicated it might have some difficulty accepting her claims as a result. The applicant responded that she thought the [independent information was] “good enough” to support her claims and did not seek other assistance. The Tribunal raised with the applicant that it might have some difficulty with the totality of her claims for protection given that she links [Mr B’s] family so centrally to them, yet did not ask for any assistance from them. The applicant responded that [Mr B], who was living at the [City 4] family residence, provided her with the [independent information that she supplied. The Tribunal drew to the applicant’s attention that her earlier evidence was that she lived only with [Ms F and two other family members], and this appeared inconsistent with her claim that [Mr B] was also living there. The applicant replied that [Mr B] lived at the residence for a time following his release from prison, and that when answering earlier questions of the Tribunal she thought she was only being asked who lived at the residence when she started living there. The Tribunal raised with the applicant that it might have some difficulty accepting her claims for protection given [Mr B] is so central to them, yet she didn’t obtain his assistance with her application for protection, even though he was living with her at the time. The applicant responded that she did not ask him to write anything for her as she thought the [independent information was] enough. The Tribunal observes that the applicant displayed an evasive demeanour whilst providing her oral evidence concerning [Mr B’s] family.

21. The Tribunal asked the applicant what she feared if she was to return to Fiji. She told the Tribunal that she feared persecution from the Bainimarama Government by way of being sent to gaol. The applicant advised that [Mr B] was involved with financing the SDL political party (Soqosoqo Duavata ni Lewenivanua) in Fiji and that her [relative] ([Mr A]) was [involved in politics]. She submitted that the current Prime Minister, Bainimarama, suspects [Mr B] is currently supporting [Mr A] to [oppose his] government, adding that [Mr B] and [Mr A] are well known to each other. When asked by the Tribunal how it is that they know each other, the applicant indicated she “can’t tell much” about that matter, other than to say [Mr B worked with Mr A] during a coup in 2003. Following further questions from the Tribunal, the applicant advised that [Mr B] contributed [money] to the SDL and is not well liked by the current Bainimarama Government, and her association with [Mr B] causes a threat to herself. The applicant added that her links with both [Mr A] and [Mr B] cause the threat to her. When asked by the Tribunal if she was linked to anyone else who causes or heightens a threat to her in Fiji, the applicant responded that she was not.

22. The applicant described having [siblings] who lived at the family residence in [City 2], one of which is [Mr C]. She also has [a number of] step siblings in Fiji, one of which is [Mr D]  (a [Occupation 1]). When asked by the Tribunal what her relationship is to [Mr A], the applicant advised she is related through [details of relation]. The applicant refers to him as [details of relation]. The Tribunal drew to the applicant’s attention that in her Statutory Declaration [in] April 2016 at paragraph 22, she indicated there have been no family functions at [Mr A’s] residence due to restrictions placed upon him by the Fijian Government, and that he can only have gatherings involving his immediate family, and this might suggest if she is related to him she is a more distant relative. The applicant confirmed she had written the aforementioned information and advised that only adults normally go to such functions. She explained that she last saw [Mr A] in person during 2013 when they bumped into each other in a shopping mall. The applicant detailed that his son was there also, and they had a brief discussion regarding family.

1. The Tribunal raised with the applicant that the Delegate’s decision refers to the Department asking her for further evidence that [Mr A] is her [relative] and asked if she had provided such information. She replied that she had not, because she was unable to obtain the necessary documents. The applicant indicated that she spoke with her step brother [Mr D]  to see if he was available for interview and to provide documents, however he purportedly indicated “at the moment it is getting hot” and it was hard for him to provide evidence. The applicant advised she last spoke with [Mr D] a few days prior to the review hearing, and that they speak regularly through [social media].

2. The applicant confirmed to the Tribunal that she had never been involved in any political activity at all concerning Fiji, or in any political activity with [Mr B’s family] or anybody else regarding Fiji. She also confirmed she has never protested publicly against the Fijian Government. The Tribunal drew the applicant’s attention to her written claims, where she indicated she is under threat if she returns to Fiji and she confirmed this was correct. The applicant advised that simply because she was in Australia with the [Mr B’s family], she is under threat because the Fijian Government fears [Mr B] is funding her [relative, Mr A] to oppose them. She added that the Fijian Government thinks she is conveying messages between [Mr A] and [Mr B’s family].

3. When asked by the Tribunal who told her about the threat she faced, the applicant responded that in [January] 2016, [Mr D] informed [Mr C] over a cup of tea that she was in great danger because of her involvement with [Mr B’s family]. [Mr D] advised that the police could not protect the applicant until the current Fijian Government was changed. The applicant came to learn of this exchange when she rung [Mr C] to advise she was returning to Fiji from Australia. [Mr C] thought the applicant was returning to Fiji at a later time. He conveyed the warning from [Mr D] to the applicant, advising she might get the same treatment as Vilikesa Soko, who was some years earlier tortured and killed by the Fijian military (details of which are available in open source media). The applicant again confirmed to the Tribunal that she had never been involved in politics.

4. The Tribunal drew to the applicant’s attention her answer to question 90 of the protection visa application, where she indicated she phoned her brother [Mr C]  [in] January 2016 and he informed her it was not safe to return to Fiji “… because our [relative],[Mr A] had informed him (emphasis added) as follows: That our [relative] has been [warned] by a [military officer] who has said to him that “she’ll get what Vilikesa Soko got when she comes back”.” The applicant confirmed this was correct. In that answer to question 90 she also indicated, “My [relative] told my brother (emphasis added) that he can’t protect me from the military if I come back to Fiji and I must stay away. He explained that my association with [Mr B’s family] was “toxic” and made me a target for “the haters”.” The applicant confirmed this was correct. In that answer to question 90 she also indicated, “My [relative] also contacted my step brother (emphasis added), [Mr D] who is a [Occupation 1]. He told him of the threat to me.” The applicant confirmed this was correct. In that answer to question 90 she also indicated, “Notwithstanding that my step brother [Mr D] is a  [Occupation 1], he strongly urged me (emphasis added) to stay away from Fiji until the Government of Bainimarama is removed and the impartiality of the Courts is returned and the police are able to protect the people.” The applicant confirmed this was correct.

5. The Tribunal drew to the applicant’s attention her Statutory Declaration [April] 2016, where she indicated she phoned her brother [Mr C]  [in] January 2016, and he informed her that he was advised by [Mr D]  that he had spoken to [Mr A], and then conveyed the threat to [Mr C] who in turn conveyed it to her. The applicant confirmed this was correct information. The Tribunal raised with the applicant that there appeared to be inconsistency in her written claims concerning who [Mr A] actually spoke to, and which of her brothers she spoke to, regarding the alleged threat to her, inviting her comment. The applicant responded that [Mr A] only spoke to one brother. The Tribunal indicated to the applicant that it might have some difficulty with her evidence given these inconsistencies, and given she wrote both the answer to question 90 and the Declaration, inviting her comment. Following a lengthy pause, the applicant advised that the “second one is incorrect.” She added that it was her error to indicate [Mr A] spoke to both brothers and that both brothers spoke to her. The Tribunal observes that the applicant displayed an evasive demeanour, and did not deliver her evidence in a forthcoming fashion, in relation to how the purported threat was conveyed.  

6. The applicant confirmed to the Tribunal that she submitted a Statutory Declaration from Mr [Mr C] dated [in] May 2016, and a Statutory Declaration from Mr [Mr D]  dated [in] May 2016. In response to questions from the Tribunal regarding how these Declarations were obtained, the applicant advised that she spoke to [Mr D] on a date she could not recall, to request the Declarations. [Mr D] indicated he would write his Declaration and help [Mr C] get his completed. The applicant asked [Mr D] to write down everything relating to himself and the other brother. The Declarations were emailed by [Mr C] to the applicant. The Tribunal raised with the applicant that the Declarations contained the identical concluding paragraph, “I am prepared to travel to Australia to be interviewed in relation to this Statutory Declaration.” The applicant advised that [Mr D] helped [Mr C] with his Declaration, hence the similar wording.

7. The Tribunal raised with the applicant that the Departmental delegate’s decision indicates she advised that her brother [Mr C] fears his phone line is tapped, and also that he had not been approached by the military after he apparently told her of the threat to her. Further, the Statutory Declaration of [Mr D] indicates [Mr A] advised that he was ‘under regular surveillance and that it was not safe to speak on telephones or send emails or be seen in public.’ The applicant confirmed the aforementioned was correct information. The Tribunal raised with the applicant that if [Mr A] is under such close scrutiny, that might suggest it is unlikely he was able to meet with [Mr D] undetected by the Fijian authorities, and it is unlikely [Mr C] would have been able to pass information to her and not come to the attention of the Fijian authorities himself, inviting her comment. The applicant responded that [Mr A] and [Mr D] met at a public place during [a public event] so there were lots of people around and they had a brief discussion. The Tribunal drew to the applicant’s attention that the Departmental delegate’s decision indicates she advised that the Fijian Government monitors communications, and in her Statutory Declaration of [April] 2016 she indicated the Fijian authorities are aware of her links to [Mr B’s family], “through my [social media] exchanges with my relatives in Fiji as I believe the government is monitoring electronic communication.” The Tribunal asked the applicant how she has been able to communicate with her brothers without them coming to the adverse attention of the Fijian authorities, if communications are monitored as she suggests. The applicant responded that she has used [various communication methods], along with other accounts.

8. When asked by the Tribunal to provide further information about her [social media] exchanges, the applicant explained that she posted photographs of herself with [Mr B’s family] without realising what [Mr B] had done. She indicated that she posted these photographs during [an event in] 2014, and included text [that identified the people in the photographs]. The applicant confirmed that she did not post any commentary concerning political matters in Fiji. When asked by the Tribunal if she had a copy of the [social media] posts, the applicant initially replied, “not yet.” She then added she has a copy of them. When asked by the Tribunal why she had not provided a copy of them to the Department, the applicant responded that it was “her mistake.” The Tribunal raised with the applicant that it might have difficulty accepting that the [social media] posts were made, given that [Mr B’s family] are central to her claims and she never provided a copy of them to the Department. The applicant indicated that the importance of the [social media] posts never occurred to her. The Tribunal raised with the applicant that it might have difficulty accepting this evidence, given she specifically referred to the [social media] posts in her Statutory Declaration of [April] 2016 as the means by which she suspected the Fijian Government linked her to [Mr B’s] family. Following a lengthy pause, the applicant responded that she didn’t realise the significance of the [social media] posts.

9. The Tribunal raised with the applicant that in her Statutory Declaration of [April] 2016 she indicated she knows [Ms G], who supported the SDL party in Fiji and was a friend of [Mr B], and that she spoke to her after being questioned by the military in the past. The applicant confirmed the aforementioned information was correct, and the Tribunal asked how she knew [Ms G]. The applicant advised that [Ms G] was a regular guest where she had worked in the past and they met at [one of her workplaces] in 1999. She described that they don’t talk as much as before and last did so in 2016. They last saw each other in person in Fiji and they [text] from time to time. The Tribunal asked why the applicant did not refer to [Ms G] in her initial written claims for protection at question 90. The applicant responded that she did not think it necessary to mention [Ms G] as she was just focusing on [Mr A] and [Mr B]. The Tribunal asked the applicant why she only raised [Ms G] in later written claims, and she replied that she didn’t mention her the first time, “but then thought it was stronger for her claim to have more people involved with [Mr B’s family].” The Tribunal raised with the applicant that it might have some difficulty with her evidence that Ms [Ms G] is connected to her protection claims, given that she did not initially raise the matter in her application for protection, inviting her comment. The applicant responded that she didn’t think it was relevant at first, then thought it important to mention her later.

10. The Tribunal raised with the applicant that in the Statutory Declaration of [Mr D]  at paragraph 23, he indicates that he spoke to [Ms G] [in] May 2016, who indicated she was questioned at the airport by Military Intelligence, upon returning from [an event] in [City 3] in [2016], concerning whether she met her or [Mr B] in Australia. The applicant confirmed this was correct. The Tribunal indicated to the applicant that it might have some difficulty with the evidence suggesting [Ms G] is of interest to the Fijian authorities and was able to pass information to her step brother [Mr D] , who in turn was able to furnish her with a Statutory Declaration, notwithstanding this interest of the Fijian authorities. The applicant responded that she was not aware of how messages were relayed from [Ms G] to [Mr D]. She added that [Ms G] was questioned upon her return from [City 3] because of her links to attempt to overthrow the Government, that [Ms G] is a supporter of the SDL, and the Fijian Government suspects [Ms G] was speaking to people in [City 3] about funding of the opposition. The Tribunal indicated to the applicant that it might have some difficulty with her evidence that she is of interest to the Fijian authorities who are monitoring her communications, if [Mr A], [Mr D], [Mr C], and [Ms G] have been able to communicate in the ways she has suggested, in spite of the attention she says has been directed towards them by the Fijian authorities. The applicant responded that she believed electronic monitoring is occurring, she is concerned about such monitoring and she changes numbers and internet communication accounts as a result. She added, “somehow they communicate.” The Tribunal asked the applicant if any harm had come to the aforementioned persons in Fiji. She replied that [Mr D] keeps a low profile because he works in the Government (as [Occupation 1]) and that [Ms G] was taken by the military to a barracks due to her political opinions. The applicant confirmed [Ms G] was last taken in 2003. She also confirmed that no harm had come to any of the aforementioned persons since January 2016. The Tribunal raised with the applicant that this might suggest she would not come to any harm herself in Fiji. She responded that she is still at risk, and the Fijian Government still believes [Mr B] is funding the opposition and that she is encouraging him and passing messages on his behalf. The applicant added that she supports the SDL also, although she is not a member, and wears a bandana on her arm to show that support. The applicant stated she does not support the SDL publicly. It is worth pausing to reflect that in her earlier oral evidence, the applicant informed the Tribunal that she had never been involved in any political activity at all concerning Fiji, or in any political activity with [Mr B’s family] or anybody else regarding Fiji.

11. When asked by the Tribunal if she experienced any harm from the authorities in Fiji when she was living there, the applicant advised that in 2003 her and her flatmate were taken to a military barracks and interrogated when the coup happened. She explained that [Mr A] had [aided in the coup] and the military thought she was [also participating]. When asked for further detail concerning this matter, the applicant advised she was [working] when [a number of] military vehicles parked outside and [a number of] military personnel with guns took her and her [flatmate] in different vehicles to the barracks. Their house was searched and camouflage clothing belonging to workmen was found. She was asked [questions] and she was [humiliated]. The applicant was apparently taken into an empty room with a few soldiers and questioned about her connections, [Mr A] and his son, and who she supported. The applicant told the Tribunal she informed the soldiers she supported the SDL and they were not happy. Clothing found at the applicant’s residence was sent for testing and ultimately came back clean for weapons residue. The applicant was apparently warned about [her activities during the coup] and her link to [Mr A]. A military member watched her house for [a number of] days until the clothing came back clear and then they left. The applicant stated to the Tribunal that she experienced no problems after this event. It is worth pausing to reflect that the applicant’s Statutory Declaration of [April] 2017 indicates the date of this event as 2001 and in her oral evidence she recalled it as 2003.

12. The Tribunal asked the applicant why she did not refer to the incident where she was interrogated in her original application for protection. She replied that she didn’t think it was necessary to write it then and that she “didn’t think of it then.” The Tribunal drew to the applicant’s attention that at question 91 of her application for protection she indicated she did not experience harm in Fiji, and at question 93 she indicated she did not move or try to move within Fiji as “I was not under threat at that time.” The applicant responded that she didn’t move after the interrogation incident as Fiji is a small country and there is no point moving. The Tribunal raised with the applicant that it might have difficulty with her evidence that this incident occurred given that she did not initially raise the matter in her protection visa application, noting that the instructions indicate to place all information in the application and also that she was represented at that time. The applicant responded that she didn’t include it earlier and “didn’t think of it.” The Tribunal raised with the applicant that given her claims are linked to the Fijian military, it might have some difficulty accepting that this event happened given that it was said to be caused by the military and she didn’t include it earlier. The applicant responded that she didn’t prepare herself properly.

13. The Tribunal raised with the applicant that in her written claims she indicated she only became aware of a threat to herself [in] January 2016. She confirmed this was correct. The Tribunal noted that this was shortly after her request for waiver of [a visa condition] on her last [temporary] visa was refused. The Tribunal drew to the applicant’s attention that the Departmental delegate’s decision refers to her indicating that she posted a photograph on [social media] a few months after arriving in Australia which linked her to [Mr B’s family], and her oral evidence was that this was during [an event in] 2014. The Tribunal indicated that it might have difficulty accepting the genuineness of the applicant’s claims, given the threat apparently arose so shortly after she was not permitted further stay in Australia, although she had apparently communicated her association with [Mr B’s family] on social media quite some time before [January] 2016, and on her oral evidence during [an event in] 2014. The applicant responded that when she first came to Australia she was not aware of the relationship between Bainimarama and [Mr B]. She indicated that back in Fiji she didn’t have the internet as it is a small country. The applicant advised that when residing with [Mr B’s family] she came to know about [Mr B]’s relationship with the Fijian Government little by little. The Tribunal drew to the applicant’s attention that she raised [Mr B] quite centrally in her written claims, particularly in her Statutory Declaration of [April] 2016, and asked how she did not know of his activities. She replied that [Mr B] told her all of this. The Tribunal raised with the applicant that at paragraph 24 of that Declaration, she referred to [working] in [City 2] during 2003 when [Mr B], whom she already knew, was there supporting an SDL candidate, however in her oral evidence she maintained that she didn’t know of [Mr B]’s real political links until she came to Australia. The Tribunal indicated that it might have some difficulty accepting her evidence on this matter given the aforementioned inconsistency and invited her comment. The applicant responded that she “didn’t really know and had limited knowledge.” The Tribunal observed the applicant to provide vague responses to its questions concerning apparent inconsistencies in her evidence, and to demonstrate an evasive demeanour whilst doing so.

14. The Tribunal raised with the applicant that she had submitted several media articles and other documents to the Department and invited her to explain their relevance to her claims. She advised that they show what [Mr B] went through when supporting the SDL, how the Fijian Government reacts to supporters of the SDL and those who speak their mind, and how the Fijian Government controls everything back in the country. The Tribunal raised with the applicant that none of the aforementioned material refers to herself and that it might be of limited relevance to her circumstances. The applicant responded that the articles provide general information on those who support the opposition, and that she categorises herself as an opposition person. It is worth pausing to reflect that in her earlier oral evidence, the applicant informed the Tribunal she had never been involved in any political activity at all concerning Fiji, or in any political activity with [Mr B’s family] or anybody else regarding Fiji.

15. The Tribunal raised the following country information from the Department of Foreign Affairs and Trade (DFAT), concerning political opinion, with the applicant. ‘In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly.’[1] ‘In general, DFAT assesses that those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy.’[2] ‘Overall DFAT assesses that senior members of opposition political parties (i.e., 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, including through the judicial system.’[3] The Tribunal indicated to the applicant that even if it were to accept her claims that she is related to [Mr A], or was friends with [Mr B] and his mother, or is friends with [Ms G], or that the Fijian military previously interrogated her and ransacked her flat and placed her under surveillance, the Country Information does not tend to support her claims that she will face or suffer any harm if she returns to Fiji on account of these matters. The Tribunal invited the applicant’s comment and she replied that she is still at risk if she goes back to Fiji due to the current Government, which is doing all it can to maintain office and stop anyone helping to fund the opposition. She maintained that unless the Fijian Government changes, those supporting other parties are at risk. The Government may say there is freedom of speech, however they control the media by printing what people want to hear and see. Fijians living there know the truth. Only the tip of the iceberg is visible and you must be in the country long enough to see what the Government is doing to its citizens. The applicant submitted that her life was at risk if she went back to Fiji, and she cannot believe the media until the Government changes.

    [1] Paragraph 3.73 DFAT Country Report Fiji of 14 April 2015.

    [2] Paragraph 3.74 DFAT Country Report Fiji of 14 April 2015.

    [3] Paragraph 3.84 DFAT Country Report Fiji of 14 April 2015.

1. The Tribunal indicated to the applicant that whilst it is prepared to accept that [Mr A] and [Mr B] might themselves be of adverse interest to the Fijian authorities, there is no Country Information before it suggesting relatives of [Mr A], or friends of [Mr B] and his mother, or friends of [Ms G], are of adverse interest to the Fijian authorities. The applicant was invited to comment and responded that they wouldn't publish anything and want to put a bad name on the Government as to how they were running the country. She added that the Government does things silently, away from media attention, and when the military is involved things may be categorised as accidental to protect the country from security breaches.

2. The Tribunal raised the following country information from DFAT, concerning torture and cruel, inhuman or degrading treatment or punishment, with the applicant. ‘Overall, DFAT assesses that individuals who are critical of the government now face a low risk of torture, however events move fast in Fiji and it is conceivable for events to escalate quickly where torture could occur and not be known by the Australian High Commission.’[4] ‘Overall, DFAT assesses that the likelihood of any individual being subject to cruel, inhuman, or degrading treatment or punishment is low. Someone who is seen to have embarrassed the government or security services would have a higher risk profile.’[5] The Tribunal raised with the applicant that even it if accepted her claims that she is related to [Mr A], or was friends with [Mr B] and his mother, or is friends with [Ms G], or that the Fijian Military previously interrogated her and ransacked her flat and placed her under surveillance, the Country Information does not tend to support her claims that she will face or suffer any harm if she returned to Fiji on account of these matters. The applicant was invited to comment and responded that this is a different image to what the Fijian Government is doing. She maintained that if she has to go back to Fiji she will face persecution and torture which won’t be made public, will be “under the cupboard”, and be kept low profile.

   [4] Paragraph 4.6 DFAT Country Report Fiji of 14 April 2015.

   [5] Paragraph 4.12 DFAT Country Report Fiji of 14 April 2015.

3. The Tribunal raised the following country information from DFAT, concerning State protection, with the applicant. ‘For most ordinary citizens, the police and military are effective and impartial.’[6] ‘Overall, DFAT assesses that Fiji’s judicial system is not capable of providing protection to high-profile opponents of the government. For low-profile and non-political matters, the judicial system is generally capable of providing effective state protection.’[7] The Tribunal raised with the applicant that even it if accepted her claims that she is related to [Mr A], or was friends with [Mr B] and his mother, or is friends with [Ms G], or that the Fijian Military previously interrogated her and ransacked her flat and placed her under surveillance, the Country Information does not tend to support her claims that she will face or suffer any harm if she returned to Fiji on account of these matters. The applicant was invited to comment and stated that she would still face persecution regardless.

   [6] Paragraph 5.4 DFAT Country Report Fiji of 14 April 2015.

   [7] Paragraph 5.23 DFAT Country Report Fiji of 14 April 2015.

4. The Tribunal raised the following country information from DFAT, concerning entry and exit procedures, with the applicant. ‘All inbound and outbound passengers (including Fijians) are checked against the Oracle system, which includes a ‘Stop Watch’ List (including, for example, entries based on court orders to stop departure, or alerts from Customs if the passenger has outstanding tax debts.)’[8] The Tribunal raised with the applicant that the Country Information does not tend to support her claims that she would be of interest to the Fijian authorities given that she was allowed to exit Fiji without difficulty in November 2014 using her own Passport. The applicant was invited to comment and responded that [Mr B’s family] did not sponsor her to come to Australia and there was no indication they were involved with her when she departed Fiji. She maintained that it was only after she was living [in City 4] with [Mr B’s family], then posted on [social media], that her connection with them became known. The applicant indicated that when she departed Fiji she was coming only to see her cousin. Prior to taking an adjournment during the review hearing, the Tribunal invited the applicant to provide any further information she wished. The applicant indicated that in her written claims regarding the conversation from [her relative Mr A] being with both brothers and then relayed, it was an error on her part.

   [8] Paragraph 5.40 DFAT Country Report Fiji of 14 April 2015.

5. Following the adjournment, the Tribunal raised with the applicant that, whilst it had not made up its mind, it had the following concerns with her claims for protection. The Tribunal might have difficulty accepting that she has made claims where [Mr B’s family] are central to those claims, and she indicated she lived with both [Mr B] and [Ms F], and she did not ask them to provide any statements or evidence in support of her case. The Tribunal also noted that the applicant gave oral evidence indicating she asked [Ms F] to support her request for waiver of [a visa condition] on her [temporary] visa. Additionally, the applicant displayed a limited knowledge of [Mr B]’s political activities in her oral evidence.

6. The Tribunal might have some difficulty accepting that the applicant was of sufficient interest to be interrogated, placed under surveillance and have her flat ransacked by the Fijian military in 2001, yet remained living in the same location for many years afterwards without incident, until she travelled to Australia in November 2014 departing through the airport legally and using her own passport. Additionally, the Tribunal might have some difficulty accepting this incident with the military occurred given that it was not initially raised in her application for protection, and as there appeared to be a lack of detail the applicant was able to recall in her oral evidence.  

7. The Tribunal indicated that there appeared to be inconsistency in the applicant’s written claims concerning whom [Mr A] actually spoke to, and which of her brothers she spoke to, regarding the alleged threat to her from the Fijian military. The Tribunal might have some difficulty accepting the genuineness of her claims given that the threat she says she faces arose so shortly after she was not permitted further stay in Australia, when she had apparently communicated her association with [Mr B’s family] on social media quite some time before [January] 2016, and on her oral evidence it was during [an event in] 2014. The Tribunal noted that no copy of any [social media] post or relevant photographs had been submitted to it or to the Department, and therefore it might have difficulty accepting any such post was ever made, particularly since it has been quite some time since she lodged her application for protection.

8. The Tribunal indicated it might have some difficulty with the applicant’s evidence that  [Ms G] is connected to her protection claims and that she spoke to the applicant regarding her questioning by the military, given that the applicant did not initially raise the matter in her protection visa application. The Tribunal advised it might have some difficulty with her evidence suggesting [Ms G] is of interest to the Fijian authorities and was able to pass information to her step brother [Mr D] , who in turn was able to provide her with a Statutory Declaration, notwithstanding the interest of the Fijian authorities that she says they have in monitoring communications. Additionally, the Tribunal noted that in oral evidence the applicant indicated [Mr D] informed her recently that things were ‘very hot’ in Fiji in response to her request for documents from him. Further, the Tribunal indicated it might have some difficulty with the applicant’s evidence that she is of interest to the Fijian authorities, who are monitoring her communications, if [Mr A], [Mr D], [Mr C], and [Ms G] have been able to communicate in the ways she has suggested, in spite of the attention she says has been directed towards them by the Fijian authorities, in particular by monitoring communications.

9. The Tribunal indicated that the media articles and other documents the applicant submitted to the Department appeared quite general in nature. Additionally, the Tribunal noted it had canvassed country information with the applicant from DFAT, which suggests that even if her claims are accepted regarding her being related to [Mr A], or having been friends with [Mr B] and his mother, or being friends with [Ms G], or that the Fijian Military previously interrogated her, ransacked her flat and placed her under surveillance, it does not tend to support her claims that she will face or suffer any harm if she returned to Fiji on account of these matters.

10. The Tribunal invited the applicant to comment upon the above concerns. She responded by asking if she can submit further evidence such as photographs. When asked by the Tribunal why she had delayed doing so, the applicant advised she didn’t think it was necessary at the time. The applicant explained she had photographs of herself with [Ms F and two other family members]. In response to questions from the Tribunal regarding the delay in submitting such evidence, the applicant maintained that it was an error on her part. She also indicated some of the [independent information was] submitted by [Mr B] to her registered migration agent. Further, the applicant wanted to obtain evidence from [Mr A] and others but was apparently having trouble doing so. The Tribunal noted that she applied for the visa [in] January 2016, it was refused [in] June 2016, she applied for review on 27 July 2016, she was provided reasonable notice of the review hearing and was represented at all times. The Tribunal invited oral submissions from the applicant’s representative, who indicated the [independent information was] sent from [Mr B] to himself. When asked by the Tribunal if there was any independent evidence of this, the representative indicated he was not seeking to provide evidence himself. He also indicated that the applicant cannot contact [Mr A] herself by phone or otherwise due to his [position], then indicated he was merely noting this matter. The representative told the Tribunal that the applicant has the relevant [social media] posts and asked for three days to submit them, adding that it was his error for not submitting them earlier.

11. The Tribunal invited the applicant to make any further submissions she wished before the review hearing concluded. She responded that “we have covered everything.” The Tribunal asked the applicant how much time she required to provide any final pieces of evidence for her case, and she responded she needed three days. The Tribunal confirmed with both the applicant and her representative that they were happy with it granting until 5pm on Monday 28 August 2017 to receive such evidence (four clear days from the review hearing). Once satisfied that no further oral submissions were to be made, the Tribunal concluded the review hearing. At the date of this decision, no further submissions or evidence have been received from the applicant or her representative.

    Analysis  

12. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

13. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the review hearing, the Tribunal developed serious concerns with the credibility of the applicant’s claims for protection, which are highlighted by the following matters. The applicant submitted in her oral evidence that she posted her connection with [Mr B’s] family on [social media] during [an event in] 2014, not realising the political activities of [Mr B] in Fiji, then the Fijian Government intercepted these posts, and as a result linked her to a conspiracy between [Mr B] and her [relative] [Mr A] to [oppose] the Bainimarama Government, thus placing her at risk of harm. In her initial oral evidence, the applicant confirmed she was not linked to anyone else, other than the two aforementioned men, who might be the reason for her to face harm. However, in subsequent oral evidence the applicant raised  [Ms G] as significant to her claims. Despite a lengthy passage of time from lodgement of the application for protection, and telling the Tribunal she had them, the applicant has not produced a copy of the purported [social media] posts which allegedly brought her to the adverse attention of the Fijian authorities as a co-conspirator. Whilst the Tribunal is prepared to accept, for the purposes of this review, that the applicant was known to [Mr B’s] family, the Tribunal simply does not accept that these posts were ever made. Further, the applicant’s oral evidence indicating she did not know of [Mr B]’s political activities in Fiji, and made the [social media] posts ignorant of the danger she would face in doing so, is inconsistent with the information in her Statutory Declaration of [April] 2016 seeking to demonstrate knowledge of his activities with the SDL in 2003 whilst she was [working] in [City 2]. The applicant’s responses when these matters were raised with her during the review hearing, suggesting [Mr B] only advised her of his political activities in Australia and that she “didn’t really know and had limited knowledge”, were unconvincing. The aforementioned inconsistency undermines the veracity of her claims.

14. Given the centrality of [Mr B’s] family to the applicant’s claims for protection, the Tribunal does not accept she would fail to seek statements or evidence from either [Ms F] or [Mr B] (other than [copies of independent information]) in support of her claims. This is particularly so given she was living with the [family] until well after the primary visa refusal decision was made (noting she says she has not spoken with them since May 2017), and that she obtained support from [Ms F] for her application to waive [a visa condition] attached to her last [temporary] visa. Additionally, the timing of the purported threat to the applicant from the Fijian authorities, which was allegedly conveyed to her by telephone on [in] January 2016, came just three days after her application for waiver of [a visa condition] was refused by the Department, and is inconsistent with the applicant’s assertion that her [social media] posts of [2014] were the genesis of that threat due to their interception by the Fijian authorities. Further, the inconsistency in the applicant’s written claims as to how [Mr A] conveyed the threat (either to one or both of [Mr D] and [Mr C]) further undermines them, particularly as she wrote them herself. The evasive demeanour displayed by the applicant when delivering her oral evidence regarding such inconsistencies further amplified her lack of credibility as a witness. It follows that the Tribunal does not accept that any threat was conveyed to either [Mr D]  or [Mr C]  by [Mr A] and then subsequently to the applicant.

15. For the purposes of this review, the Tribunal is prepared to accept that the applicant’s [relative], [Ms E], is [related] to [Mr A], who [undertook activities related to] a military coup in 1987, and that the applicant is related to him and to his [son]. However, the DFAT country information before the Tribunal, outlined above, does not support the contention that the applicant is at any risk from the Fijian authorities due to this circumstance alone. Indeed, the evidence advanced on behalf of the applicant was that she was able to live for many years in Fiji undisturbed by the authorities, was able to obtain her passport in Fiji, and was permitted to depart the country lawfully. The applicant also gave initial oral evidence indicating she had no involvement at all in Fijian politics, then later inconsistently advised she is a supporter of the SDL and even informed Fijian military personnel who were interrogating her of this support in either 2001 or 2003 (a matter to which the Tribunal shall return). As previously noted, the Tribunal does not accept that the applicant came to the adverse attention of the Fijian authorities due to her making [social media] posts regarding her connections to [Mr B’s family], and accordingly nor does it accept that she has been linked to [Mr A] (or any other purported associate) as an anti-Bainimarama Government co-conspirator. Following careful consideration, the Tribunal does not accept that the applicant has a high profile such as to attract the adverse attention of the Fijian authorities in the manner postulated by the DFAT country information referred to above.

16. For the purposes of this review, the Tribunal is prepared to accept that the applicant has a casual acquaintance with [Ms G]. However, the Tribunal does not accept that such a relationship brings any risk of harm to the applicant. Indeed for reasons previously outlined, the Tribunal does not accept that the applicant made [social media] posts which drew her to the attention of the Fijian authorities, nor does it accept that the applicant was suspected by them of involvement in the passage of information between [Mr A] and [Mr B]. Accordingly, the Tribunal does not accept that [Ms G] was involved in any passage of conspiratorial information between these two men or anyone else (including either [Mr D] or [Mr C]). That the applicant did not refer to [Ms G] in her initial protection visa application answers to question 90, which she wrote herself whilst in receipt of legal assistance, undermines the veracity of her subsequent claims concerning [Ms G]. Whilst it is a matter of public record that [Ms G] was once detained briefly some years ago by the Fijian military, and she is known to [Mr B], the Tribunal does not accept that the acquaintances with them asserted by the applicant brings her to any risk of harm, particularly given the DFAT country information suggests low profile individuals are not of adverse interest to the Fijian authorities. Further, the Tribunal does not accept the applicant’s claims that [Mr A], [Mr D], [Mr C], and [Ms G] (or any other associate) have on the one hand been able to communicate in the ways she has suggested, yet have been under surveillance by the Fijian military without coming to any harm in Fiji in recent times (as was stated by the applicant in her oral evidence). For completeness, the Tribunal does not accept that there were any communications between the aforementioned persons (or any other associate), or between them and the applicant.   

17. The Tribunal does not accept that the applicant was detained and interrogated by the Fijian military in either 2001 or 2003 given that she did not raise this matter in her initial answers to question 90 of the protection visa application, indicated at questions 91 and 93 of that application she had not faced harm or threat in Fiji, and gave inconsistent oral evidence regarding her lack of political activity but purportedly stated to the military personnel during questioning she was a supporter of the SDL. Further, the Tribunal does not accept the applicant’s explanation for omitting the incident in her initial written claims, which was that she “didn’t think of it”, as credible given the centrality of the military to her claims for protection and the seriousness of the purported incident. Following careful consideration, the Tribunal does not accept that the applicant has ever experienced any harm whatsoever in Fiji at the hands of the authorities (be they military, police, or other Governmental agencies). Indeed, the Tribunal has formed the impression that the applicant’s written claims were untruthfully embellished by the submission to the Department of her Statutory Declaration of [April] 2016 and the supporting Declarations of [Mr D] and [Mr C]. Given the matters previously outlined, the Tribunal finds that the Declarations of these two men have been fabricated to bolster the applicant’s claims for protection and accordingly no weight is afforded to them, nor does the Tribunal accept the veracity of any written claims of the applicant.

1. The Tribunal has carefully reviewed the supplementary written material submitted to the Department by the applicant by way of [independent information], and material compiled by her under the heading of ‘Country Information’. Given the material is general in nature and none of it refers to the applicant’s specific circumstances, when considered in the context of the serious credibility concerns previously outlined regarding her evidence, the Tribunal affords the supplementary written material no weight. For completeness, the Tribunal does not accept that the applicant is an ‘opposition person’ as she stated when discussing the supplementary written material during the review hearing, given that this is inconsistent with her earlier oral evidence advising she had never been involved in any political activity at all concerning Fiji, or in any political activity with [Mr B’s family] or anybody else regarding Fiji. Accordingly, the Tribunal does not accept the supplementary written material has any reference at all to the applicant’s personal circumstances. As outlined above, the DFAT country information does not support the applicant’s claims that she would face harm upon return to Fiji as she is not of the profile to attract adverse attention from the Fijian authorities (noting that the Tribunal does not accept the veracity of her claims to have been perceived to be involved as a co-conspirator in anti-Bainimarama Government activity).

2. For the reasons detailed above, the Tribunal does not accept the applicant has ever faced, or would face, harm in Fiji on account of her relationship with [Mr A] (or any member of his family), [Mr B] (or any member of his family), [Ms G], any member of the applicant’s own family (including [Mr D] and [Mr C]), or any other person. Additionally, the Tribunal does not accept the applicant has ever faced, or would face, harm in Fiji from any of the Fijian authorities (including the Government, military, police and judiciary). Further, the Tribunal does not accept the applicant has ever faced, or would face, harm in Fiji on account of her political opinion. For completeness, the Tribunal does not accept the applicant has ever faced, or would face, harm in Fiji for any other reason whatsoever, as it rejects the veracity of all of the claims for protection that she has raised orally and in writing. Indeed, the Tribunal has formed the view that the applicant has engaged in an elaborate contrivance regarding her claims for protection and lacks credibility as a witness. Accordingly, the Tribunal does not accept that the applicant would face any harm at all if she returns to Fiji.  

   CONCLUSION

3. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. 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

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

   K. Chapman
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …