1612443 (Refugee)

[2017] AATA 3030

1612443 (Refugee) [2017] AATA 3030 (22 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612443

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Christine Cody

DATE:22 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 December 2017 at 4:03pm

CATCHWORDS
Protection visa – Fiji – Political opinion – Pacific Indigenous Samaritan Association Inc (PISAI) - Christian breakaway States of Nadroga-Navosa and Ra – Race – Indigenous Fijian – Military control of government – Religion – Christian – Credibility issues

LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5J-5LA, 36, 65, 424AA, 499
Migration Regulations 1994 Schedule 2

CASES
MIEA v Guo & Anor (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 [in] July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A.

2. The applicant, who claims to be a citizen of Fiji, applied for the visa [in] February 2016, making claims on the basis of his claimed actual/implied political opinion and activities in Australia. The delegate refused to grant the visa on the basis that, although prepared to accept some of the claims, having regard to credibility concerns and country information, the delegate was not satisfied that the applicant is a refugee or entitled to complementary protection.

3. The Tribunal has before it the Departmental file and the Tribunal file.

   The Department     

4. The Departmental file[1] contains documents including the applicant’s protection visa application forms, a copy of his passport, supporting documents, a copy of the recording of the interview with the delegate (to which the Tribunal has listened) and the delegate’s decision record. There are no certificates restricting disclosure of any material on the Department’s file.

   [1] Other documents, such as relating to his bridging visa application are not relevant.

5. According to the applicant’s written documents, his background and claims can be summarised as follows:

   ·     The applicant was born in [year] in Suva, Fiji. His ethnicity is Fijian and his religion is Christian. He speaks, reads and writes in Fijian. He was educated initially at [two specified schools] until [year], and he then attended [a college] [in specified years], completing [a qualification][2]. He also undertook [occupation] training from [specified years].

   [2] Copy of [qualification] provided.

   ·     In Fiji he worked as [an occupation 1] for [an employer] (since October 2009).

   ·     He provided three different addresses in Fiji, the last address was in Suva from [time frame].

   ·     He is married. His family members include his wife, his [specified children], who are residing in Suva. He is in contact with them every day by mobile. He did not disclose any other family members.

   ·     His passport was issued [in] 2015. He left Fiji legally [in] November 2015, arriving in Australia on the same day, in [city]. He entered Australia as a visitor.

   ·     Since his arrival in Australia in November 2015, he had been residing in [Town 1][3].

   ·     He did a course at [a college] in [Town 2] in December 2015. He provided a certificate from [an authority] dated [in] December 2015, confirming that he had successfully completed the requirements of [a specialist] Course. The certificate states that his registration statement is sufficient proof of satisfactory completion with a registered training organisation of the required training necessary to apply for [a specified] permit.

   ·     At the date of signing his application on [a date in] February 2016, he said he was not employed, he provided no details of any employment in Australia since his arrival.

   ·     He is a strong supporter of the two Christian breakaway states of Nadroga-Navosa and Ra which are being closely monitored by the Bainimarama regime. The Prime Minister warns of severe punishment for sedition.  The applicant associates himself with Ms Oni Kirwin. All those who are involved with Oni Kirwin have been forewarned by Bainimarama of the harm that awaits them if they go back to Fiji. His safety is at risk because of his involvement with Oni Kirwin and the recent breakaway government in exile. He is a citizen of the Fiji Native Government in exile, the breakaway Christian state of Nadroga-Navosa and Ra. He fears he will be crushed by the Bainimarama' government because he is a follower of Oni Kirwin and also a member of the Pacific Indigenous Samaritan Association Inc (PISAI).

   ·     There is military and police brutality happening in Fiji. The torture, rape and brutality and deaths in custody continue in Fiji and he fears this if he returns to Fiji. The government is over-militarised.

   ·     He cannot relocate because his safety is at risk.

   ·     The police do not have any power to protect him because all ministries in Fiji are controlled by the military.

   [3] [Deleted.]

6. He did not complete the section asking for information about assistance provided to him in completing the form. The envelope enclosing the protection visa application forms states that the sender was the applicant, care of [an Official 1 of PISAI] (he provided [the Official 1] details as his contacts in Australia[4]).

   ·     He stated that he was not politically active, and he was not a member of any political organisations in Fiji.

   ·     When asked his intention coming to Australia, he responded that he wanted the opportunity to be given work rights and to seek employment. When it was put to him that he was already employed in Fiji, he responded that there are no work rights or religious rights in Fiji. When it was put to the applicant that according to country information, there is freedom to practice religion in Fiji, he responded that Fiji was a Christian state and it is now a secular state. When asked why he was supportive of PISIA in seeking to establish two Christian states in Fiji, he said because he was brought up in a Christian family.

   ·     He claims to have become a member of PISAI [in] February 2016. He claims that he is seeking protection in Australia because the Prime Minister has pledged that anyone who becomes a member of PISAI would be brought to justice and arrested. He fears that he would be arrested and questioned by military if he returns to Fiji because of his membership.

   [4] [Official 1] was his authorised recipient (not as an agent, but as a “friend”, concerning correspondence with the Department

   The applicant’s affidavit sworn [in] April 2016 and the delegate’s decision record

7. After the interview, the applicant, care of [Official 1], provided a sworn affidavit The delegate’s decision record noted that [Official 1], while not a migration agent, had put forward submissions on behalf of the applicant that he faces harm because he:

   ·     Is a member of particular social groups including the Fiji Native Government in exile domiciled in Sydney;

   ·     Is a Christian, and in Fiji, the Prime Minister has enshrined secularism without consultation.

   ·     As an indigenous Fijian, his race will be subjected to ethnic cleansing.

8. While the delegate was prepared to accept that the applicant supports the Fiji Native Government in Exile, when considering country information he did not consider that the applicant will be targeted because of any claimed attendance at meetings run by Ms Kirwin in Australia or due to his membership of this PISAI. The delegate was only prepared to accept that he has low level views and does not accept that the applicant has an anti-government profile. Having regard to the improved human rights situation in Fiji in recent years, the delegate was not prepared to accept that the applicant would be arrested and harmed on his return to Fiji. The delegate noted that reports confirm the applicant’s claim that the Fijian Government formally banned Ms Kirwin from travelling to Fiji. For instance, A Fiji Sun report, dated 29 August 2015[5], stated that Ms Kirwin had ‘been banned from entering Fiji’ and quotes the Director Fiji Immigration Nemani Vuniwaqa: “She is on our blacklist because of her involvement with the late Ratu Osea Gavidi in the so-called Christian state in Nadroga and Ra as their legal adviser.”

   [5] Koroi, N, Vakasukawaqa, A and Naidu, S 2015, ‘Kirwin Banned’, Fiji Sun, 29 August, see: ; CXBD6A0DE17588

9. The affidavit produced by the applicant records contains over 150 pages including supporting documents. It indicates that the applicant is a registered member of the “charity organisation” Pacific Indigenous Samaritan Association Inc (PISAI) which is based on the works of compassion carried out by the founder/president Pastor Oni Kirwin. He strongly supports the objectives of PISAI, and he is a registered member and active supporter of Fiji Native Government in Exile, attending members meetings and contributing to the core objectives. The paramount and sacred purpose is self-determination and the support of self-determination efforts in 14 provinces of Fiji, including two which (it is claimed) have already formed their independent Christian states, namely Nadroga-Navosa and Ra. [Official 1 of PISAI] is his friend and has been helping him with his application for “political refugee status in Australia”. Reference was made to interest by the Fijian authorities in suppressing Christian secessionist movements; Fijian people cannot speak out about political matters; they cannot worship God without fear of persecution; that the indigenous race are being mainstreamed and persecuted. He will face harm because of his open association with [PISAI].

   The Tribunal

10. The applicant provided to the Tribunal an application for review form and a copy of the delegate’s decision record. The Tribunal has considered the issue of jurisdiction and finds that it has jurisdiction to consider the application for review. [Official 1] remained on the record with the Tribunal (not as an agent, but as a “friend” who was his authorised recipient for correspondence).

11. The applicant appeared before the Tribunal 2 November 2017 to give evidence and present arguments. The Tribunal explained that it was considering whether the applicant met the requirements as a refugee or under complementary protection, noting that it was not bound to follow the delegate’s decision record and it would make a fresh decision on all of the evidence before it, up until the time it issued a written decision.

12. In the application for review form, in answer to the question of whether he sought to ask for an interpreter, the applicant said no. Further, when he was forwarded the Hearing Invitation on 16 October 2017, he was requested that, if he wanted an interpreter, he should tell the Tribunal at least seven days prior to the hearing. He did not do so. The information sheet provided to him prior to the hearing stated that, if requested, the Tribunal would organise an interpreter to be present at the hearing for the applicant. At the hearing, when the Tribunal noted that the applicant had not requested an interpreter, it said that it was important for him to let it know if there was anything he did not understand. The applicant agreed. The Tribunal is satisfied that the applicant was able to understand the proceedings, give evidence and present arguments in English.

13. Some of the evidence given by the applicant includes:

    ·     He has been living with pastors in Australia, and assisting them with their church activities.

    ·     His wife and children live with [a relative]. His wife works as [an occupation]. They have recently been divorced. His wife continues to live with [this relative] because the children live there. He has [siblings] who live in Suva. [They] are working: one works for [a service] company and [another] works for [a named] shop which sells [goods].

    ·     When asked what he feared would happen if he returns to Fiji, he said he will be arrested because of his involvement with [PISAI] and his support of the group. The Tribunal put to him that although the Fijian government is aware that Ms Kirwin/ her organisation is based in Australia, this does not mean that they would be aware of his involvement. He said he does not know if they are aware of him and if they are aware of him, he does not know this.

    ·     When the Tribunal asked if there was anything else that caused him fear or worry or concern about going back to Fiji, he said there was nothing else. While noting that it had not made up its mind, the Tribunal put to the applicant its concerns with the credibility of his claims, as well as country information sourced from the DFAT Report (27 September 2017).

14. Further relevant evidence, and information put to the applicant pursuant to s.424AA of the Act, is set out below.

    FINDINGS AND REASONS

    Country of reference

15. The applicant produced his passport issued by the Fijian authorities. The Tribunal accepts that the applicant is a national of Fiji, and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Fiji.

    Credibility

16. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the 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.

17. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

18. 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 & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

19. The Tribunal had a number of concerns about the applicant’s inconsistent, changing and unlikely evidence, and his delay in leaving Fiji once he considered his life was at risk, as well as his delay in claiming protection in Australia. The Tribunal’s concerns are set out below.

20. Firstly, the Tribunal was concerned that the applicant gave inconsistent evidence about and relevant to his fears of returning to Fiji. The applicant told the Tribunal that Ms Kirwin helped him fill in the application form, and that she gave him the reasons to claim protection. When the Tribunal asked the applicant the reasons he had sought protection as set out in his application for a protection visa, his evidence was vague. After saying words to the effect of: “what were the reasons I claimed protection?”, he said the government was being militarised in Fiji, and their rights as indigenous people were being taken away, and Fiji is a Christian state. He said these were the only reasons he had claimed protection.

21. However, at a different stage in the hearing, he told the Tribunal that his only fear if he returns to Fiji is that he will be persecuted because he is part of PISAI. The Tribunal considered if that was his only fear, or a significant fear, he would have told the Tribunal this when asked why he had claimed protection. When this omission was put to the applicant, he said he didn’t think of it. The Tribunal considers that if the applicant had a genuine association, and/or believed that he faced any chance or risk of harm because of his association with this group, he would have told the Tribunal this when asked for the reasons he had claimed protection. The Tribunal considers that this omission undermines his claims and credibility.

22. Further, although he could not recall when asked at hearing that he had claimed persecution in his protection visa application because of his association with [PISAI], this was a claim that had been made in his protection visa application form. The Tribunal however, had concerns about the genuine nature of this claim as, when giving evidence to the Tribunal, he claimed that he had only [joined] PISAI, on the same day that he signed his protection visa application forms ([in] February 2016). The Tribunal put to the applicant that it may be that he had travelled to Sydney [and] joined the association in order to claim protection and remain in Australia. In response, he said that this was what he believes in. The Tribunal does not find this persuasive.

23. Secondly, the Tribunal was concerned that the applicant’s evidence about his discovery of Ms Kirwin/PISAI in Australia, and the involvement of the pastor with whom he lived in the organisation, was changing and was inconsistent.

24. The applicant told the Tribunal that he had found out about PISAI in the first week of January 2016, from the pastor with whom he was living in [Town 1]; as the pastor was the head of PISAI in [Town 2], and the applicant had then attended meetings organised by that pastor.

25. However, his evidence to the delegate was different. He told the delegate that he had found out about PISAI when he had overheard a Fijian woman in [Town 2] talking about it, on about [date range in] February 2016 (a few days before travelling to Sydney to sign his protection visa application). This had led to him to ask the pastor about it; the pastor located the address of the organisation in Sydney for the applicant, who was then able to contact the organisation. This was the only time the applicant had discussed the organisation with the pastor, and he didn’t know whether the pastor had any position in PISAI.

26. The inconsistencies in his evidence were put to the applicant as issues[6] and pursuant to section 424AA of the Act:

    ·     In response to the inconsistency as to how he learned about the organisation (either from the pastor or overhearing a Fijian woman), he claimed that he heard the information around a dinner table where both the pastor and the Fijian woman were present.

    ·     The Tribunal noted that if his evidence at hearing was true, he had not explained why, if he had found out about the organisation in the first week of January 2016, it took him a further six or seven weeks from that time to decide to apply for protection, travel to Sydney, meet Ms Kirwin and the organisation, sign the protection visa application and become a member. He said he mixed up the dates, and it has been a while. He did not clarify further.

    ·     In response to the inconsistency about the pastor’s role in the organisation, the applicant said the pastor became the leader of the organisation in [Town 2] when Oni Kirwin came to [Town 1] in March 2016. The Tribunal does not find this persuasive, for if the pastor had become the leader of the organisation in March 2016, the Tribunal considers the applicant would have told the delegate this in April 2016 when asked; instead of saying he had no knowledge of any position held by the pastor in PISAI. The Tribunal considers that his changing evidence undermines his credibility and his claims about his involvement with the organisation in Australia.

    [6] Some were sourced from the delegate's decision record that the applicant provided to the Tribunal.

1. The Tribunal is concerned that his inconsistent evidence about these matters which led to him claiming protection, undermines his credibility and his claims.

2. Thirdly, the Tribunal was concerned about the applicant’s changing evidence about his claimed involvement in PISAI (put to him, when necessary, pursuant to s.424AA of the Act).

3. As set out in the delegate’s decision record, the applicant told the delegate at interview in April 2016 that all he did with PISAI was attend the office in February 2016, become a member, pay a one-off membership fee (this is his only financial contribution), complete a protection visa application form, remain in Sydney for two weeks during which time he returned to the PISAI office to enquire about the progress of application. When asked if he had any further involvement in the organisation after he returned to [Town 1], he said that he had attended one meeting held by Oni Kirwin in [Town 1] in March 2016. The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that after he became a member, since early 2016, he attended meetings every [specified weekday] in [Suburb 1], Sydney. The Tribunal put to the applicant that if he had been attending regular meetings, he would have told the delegate this at the interview. He said he doesn’t know why he did not mention his attendance at meetings to the delegate. The Tribunal is not persuaded by this explanation.

4. Further, according to the recording of the delegate’s interview, the applicant had attended the interview [in] April 2016 with an unsworn affidavit, which the delegate discussed with the applicant. The delegate put to the applicant that he was concerned that the applicant had indicated that he was prepared to sign an affidavit which asserted that he had been attending weekly [specified weekday] meetings of PISAI and that he had been making (ongoing) financial contributions to PISAI, which was inconsistent to the evidence he had just given to the delegate at interview about his attendance at PISAI and his financial contributions.

5. After the interview, the applicant provided a sworn affidavit, which stated that he had been attending weekly members meetings on any [weekday] night he was in Sydney, and contributing financially to its core objectives.

6. However, as noted above, the applicant’s evidence to the Tribunal was that since early 2016, he attending meetings every [specified weekday] in [Suburb 1], Sydney. As put to the applicant, this did not seem credible, given his evidence that after he signed his protection visa application in February 2016, he returned to living in [Town 1] ([number] hours from Sydney), where he remained until late April/early May 2016. His continued residence in [Town 1] is corroborated by the address given in his sworn affidavit, namely [in] April 2016, in [Town 1]. Thus, it appeared highly unlikely that the applicant would have attended any [weekday] meetings in Sydney after he had returned to [Town 1]. Further, the applicant also said told the Tribunal that he had given no money to the organisation apart from the membership fee when he first joined.

7. The Tribunal put its concern to the applicant about him having sworn the affidavit (giving the impression that he had been attending meetings on the [specified weekday] nights he was in Sydney and that he was continuing to contribute financially to the core objectives of the organisation). In response, the applicant said that he had taken the affidavit back to [Official 1] be adjusted and maybe she did not make the adjustment. The Tribunal noted that he had sworn it to be true, so it did not understand why he did not know if changes had been made to a document he then swore to be true. The Tribunal considers that the applicant’s preparedness to swear an affidavit in these circumstances undermines his credibility and his claims and the contents of his affidavit.

8. Further, he then changed his evidence to say that he had been attending the meetings in [Town 1] while he lived there. The Tribunal put to the applicant that if this was the case, it did not understand why his affidavit did not mention the applicant attending meetings in [Town 1], instead it only mentioned attending meetings in Sydney when he was in Sydney. In response, the applicant said that [Official 1] probably should have put in the affidavit that he had been attending meetings in [Town 1]. The Tribunal does not find this a persuasive explanation for the inconsistencies between his evidence and the affidavit about his involvement.

9. Fourthly, the Tribunal considers that if the applicant had been involved in PISAI by attending regular meetings and making ongoing financial contributions, he would have mentioned this when asked by the Tribunal earlier in hearing what he had been doing in Australia. In response to that question, the applicant had said that apart from assisting pastors in the churches (and with church youth and men’s church gatherings) and travelling with the pastor to visit church members, he had done nothing else in Australia. The Tribunal put to the applicant that if he had been attending regular meetings and been involved with PISAI, it did not understand why he did not mention this earlier when asked what he had been doing in Australia. He said he must have thought the Tribunal was asking about his work. The Tribunal put to him that his earlier response, when asked about what he had been doing in Australia, was not about work, but instead he had discussed activities such as Bible study, youth organisation and fellowship, which clearly was not a discussion about work. The Tribunal considers that if the applicant had been genuinely committed and involved with PISAI, he would have told the Tribunal that he had been so involved in Australia when asked about his Australian activities. The Tribunal considers that his failure to do so at the time undermines his credibility and his claims.

10. Fifthly, the Tribunal was also concerned that the applicant’s changing and inconsistent evidence about his purpose in coming to/ staying in Australia.

11. The applicant told the Tribunal that his purpose in coming to Australia was just for a visit. He said he resigned from his Fijian job [in] January 2016 because he applied for protection. The Tribunal noted however that he had not applied for protection until [a month later], so this could not have been the reason why he resigned in January 2016. He then changed his evidence and said he had resigned because he was going to apply for protection in the future. The Tribunal has considered this evidence but does not find it persuasive. The applicant claimed that he had held the same job for his whole life, and that he had lived in Fiji for all of his life; the Tribunal considers that he would have remembered if he had already sought protection in Australia by the time he resigned, or whether he resigned with only one month left on a visitor visa (until [in] February 2016[7]), and having not yet applied to remain in Australia.

    [7] Refer to delegate’s decision record, page 1.

12. Further, he said that he told his wife that he was going to go for three months to Australia; he said that he had worked at his job in Fiji until [date range in] November 2015, and he had had six weeks of leave from work. The Tribunal noted that this would mean that his leave was finished in about the first week of January 2016 and he agreed. The Tribunal put to him that if he only had six weeks leave, it did not understand why he would have told his wife he was going to Australia for three months. He then changed his evidence and said that he told her that he was only going to Australia for six weeks. The applicant did not explain why he changed his evidence, which the Tribunal considers undermines his credibility.

13. As noted above, the applicant told the Tribunal that his purpose in coming was just for a visit. This however was consistent with the applicant’s evidence to the delegate at interview[8] namely that it was his intention in coming to Australia to be given work rights and get employment. The Tribunal put to the applicant that this was inconsistent with his evidence that he only intended to visit Australia, and then to return to Fiji (to his job and family). The Tribunal asked whether he could explain this and he said when he left Fiji his intention was to visit and by the time he applied for protection, the plan for resignation of his job was taking its place and he tried to sustain himself to get work rights but he was too busy with his participation in the church. As noted above, his evidence about when he resigned his job was inconsistent with this. Further, the applicant did not explain why he told the delegate that his intention in coming to Australia to be given work rights and get employment. The Tribunal considers that this undermines his credibility and also indicates that his intention in coming to Australia was not for a visit, but to remain here and work.

    [8] Refer to delegate’s decision record, page 5.

14. Further, the Tribunal had concerns with his assertion that it was in January 2016 that his intentions changed from just visiting Australia, to remaining and seeking protection. The Tribunal noted that he had attended a [training] course, obtaining a certificate dated [in] December 2015. When asked about this, the applicant said he had obtained the certificate on the pastor’s recommendation, because if he obtains work rights, he could use it to get work. The Tribunal put to him that in December 2015 his leave was still operative and he was intending to return to Fiji after his visit; it thus did not make sense that he would want to remain in Australia and obtain work rights. In response, the applicant said that the pastor had told him there’s an opportunity to study, which he took. The applicant did not provide a satisfactory explanation as to why he was taking action to assist him to obtain work rights in Australia just a few weeks after his arrival, given it was his claimed intention at that time to return to Fiji within six weeks of his arrival. The Tribunal considers that his evidence undermines his credibility, and indicates an intention to remain in Australia to work.

15. The Tribunal was also concerned that the applicant was prepared to tell the Tribunal that he had not worked at all, but that there was other evidence which was inconsistent with this assertion. When the Tribunal asked about work he had carried out in Australia, he said the whole time he had been in Australia, he had not worked. He claimed instead that he had been living with pastors, and he had been helping out the pastors in the church, and in exchange, he had been receiving accommodation and top up cards for his mobile, but no money. The Tribunal noted however that this was inconsistent with his affidavit sworn in April 2016, where it is stated that he is a farmhand by profession. The Tribunal noted that this could not be a reference to his work in Fiji, because he had said that he was [an occupation 1] in Fiji. The Tribunal also noted that having completed a course on [subject] in December 2015, while living in an agricultural area, was a further indication that he may have been working as a farmhand. In response, he said that he had been helping the pastor’s son with farming. The Tribunal does not find this a persuasive explanation for the applicant’s claim in his affidavit that his profession is farmhand. The Tribunal also notes that his explanation is inconsistent with his earlier evidence, when having been given an opportunity to explain what he had been doing in Australia, said he had been helping the pastor with the church (not being a farmhand on the pastor’s son’s property). It is also inconsistent with the concluding paragraph of his affidavit [9] where he states that he is a “seasonal farmhand (cash in hand jobs)”. The Tribunal considers that the affidavit indicates that he has been working in farming in Australia, but that he has been willing to give false evidence in order to counter a suggestion that he came to Australia to work. The Tribunal considers that this undermines his credibility.

    [9] Departmental file folio 203

16. Further, the Tribunal had another concern with the applicant’s sworn affidavit, which outlined his claimed dedication to the cause, and provided general documents in support. When the Tribunal asked the applicant what were the names of the states that had sought to secede, he correctly said Ra and Nadroga-Navosa. The Tribunal asked whether those states have their own flags and he said yes. However, when the Tribunal asked what was on the flags, he said that he has never seen the flags, although before he joined the organisation he had heard about the flags but he has never seen the flags. The Tribunal put to him that pictures of the two flags are attached to the affidavit he swore in April 2016, which was submitted to the Department in support of his protection visa application. The Tribunal put to him that it would consider that if he was as involved and committed to the cause as claimed, and if his affidavit was true, that he would have known the flags, which were reproduced in annexures to his affidavit. In response he said that [Official 1] had prepared the affidavit. The Tribunal put to the applicant that he was the one who has sworn it to be true, and asked whether he had looked at it. He then said that he had to skim read it because he had to go back to the office after the interview and had to submit it quickly. The Tribunal put to the applicant that it sounded like he did not then know what was in his affidavit; he responded some parts of it yes, others he is not too sure of. The Tribunal considers that this undermines his affidavit and his credibility.

17. On the basis of all of the above, the Tribunal is not satisfied that the applicant is a witness of truth.

    Other matters

18. At the end of the hearing, the Tribunal offered the applicant another chance to say anything that he had not already said. He said that he did not want to say anything further, because he has mixed up a lot of dates. The Tribunal is not prepared to accept that the difficulties with the applicant’s evidence can be explained by him having mixed up a lot of dates. Further, although the Tribunal accepts that he may have been nervous in giving his evidence, it is not satisfied that this can explain or overcome concerns with the difficulties in his evidence set out above.

19. While the Tribunal accepts that the applicant has been able to provide some limited information about the organisation, for example saying to the Tribunal that he discovered from [Official 1] that there was a government in exile based in Sydney which was making a stand against the Fijian government, as the government was not respecting the rights of indigenous Fijian or Christians and it was secular; and that he has seen in the media that people who support this organisation in Fiji are being tried for sedition; the Tribunal is not prepared to accept that this means that the applicant has any genuine interest in the organisation or the beliefs claimed. Further, the Tribunal is not prepared to accept that the applicant believes in or was aware of the contents of the affidavit prepared for him by [Official 1].

    Credibility summary  

20. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and the applicant has exaggerated and fabricated accounts of background, events, as well as claimed fears, upon which he has based his protection claims.

    Findings on claims of past harm and future fears

21. The Tribunal accepts that the applicant is [an age] year-old man who has been educated in Fiji, and has worked in both Fiji and in Australia. It is prepared to accept that he and his wife are divorced, and that they have [number] children, who are living with [a relative].

22. The Tribunal accepts the applicant’s assertion that he did not have any political involvement in Fiji in the past.

23. While the Tribunal accepts that the applicant was initially living with pastors in Australia and may have received some assistance from them (and it notes that in his application for a bridging visa with work rights in March 2016 he claimed that he was receiving financial assistance), the Tribunal does not accept the applicant’s explanations about the reason why he came to Australia and what he has been doing in Australia. The Tribunal finds that the applicant has been working, including as a farmhand when he lived in an agricultural area of New South Wales, and that he undertook a course at [college] in December 2015 (he told the Tribunal this course was about the [specified subject]), within a few weeks of his arrival in Australia, in order to improve his prospects of obtaining work in Australia. The Tribunal finds that he came to Australia with the intention of remaining and working, but that he has been untruthful about this in his evidence.

    Involvement with [PISAI]/ government in exile

24. As the applicant’s protection visa application was sent to the Department by [Official 1], and [is] noted on the Departmental file and Tribunal file as a “friend”/authorised recipient for correspondence for the applicant, the Tribunal is prepared to accept that the applicant has had a contact with [PISAI] and that he has paid a membership fee to join PISAI. The Tribunal is not prepared to accept that he joined PISAI for genuine, political or religious reasons, nor that he has the beliefs claimed. The Tribunal is prepared to accept one of his version of events which appears likely, namely that he joined PISAI on the same day that he signed his protection visa application form.

25. The applicant made varying claims as to the extent of his involvement with [PISAI] and/or government in exile. On the basis of the adverse credibility finding, the Tribunal is not prepared to accept that the applicant attended meetings as claimed, other than a meeting, in accordance with his evidence, with [Official 1 who] assisted him in making his protection visa application, and one or two further meetings to swear the affidavit.

26. The Tribunal put to the applicant that it may find that he does not have the political/religious views as claimed nor that he is a genuine supporter of Oni Kirwin and/or PISAI and/or government in exile, and that his only interest in these matters has been to allow him to lodge a protection visa application, and to remain in Australia, and that he would not have any interest in these matters if he returned to Fiji. The Tribunal put to the applicant concerns that he may have engaged in his claimed dealings for the purposes of strengthening his refugee claims, and that if it so found, it would have to disregard his involvement with Oni Kirwin and/or PISAI and/or the government in exile on the basis of s.5J(6) of the Act when considering his refugee claims. In response, he said he has been attending meetings from April 2016 when he came to Sydney, and it has just been meetings, not any protests or anything like that.

27. The Tribunal does not accept that the applicant seeks a state which is run by the church nor that he has the political ideals claimed, nor that he is a genuine follower of Oni Kirwin or any organisations associated with her. The Tribunal finds that the only association that the applicant has had with [PISAI] and those organisations or people associated with[PISA], was his joining of PISAI by paying a membership fee, and his meetings with [Official 1] to obtain information and support for his protection visa application.

28. Refugee claims: Concerning his refugee claims, the Tribunal finds that his referred-to Australian conduct has occurred for the sole purpose of strengthening his refugee claims, and it disregards these matters in assessing his refugee claims. Taking into account his lack of political involvement previously in Fiji, and disregarding any involvement in Australia, the Tribunal finds that it is not satisfied that there is a real chance of the applicant being imputed by the Fijian authorities of having been involved with political matters in Australia, nor of him becoming involved in any way in political matters in Fiji in the future (not because of any fear, but because of a lack of interest) or of being imputed with an adverse political opinion in the future.

1. Complementary protection claims: The legislation does not provide for the Tribunal to disregard the applicant’s activities done for the sole purpose of strengthening his protection visa claims when considering his complementary protection claims. This was discussed with the applicant at hearing. The Tribunal expressed concern that, even if he did have any involvement with Oni Kirwin or organisations associated with her for the purposes of his protection visa application, any involvement was minimal, and it found it difficult to accept that he attended any meetings. The Tribunal put to him that, having regard to the low level activity that he may have done, it did not appear that the authorities would be aware of this, leading to him facing a real risk of significant harm in Fiji. In response, he said he is not aware as to whether the authorities know or do not know.

2. The Tribunal has found that the applicant had limited involvement with Oni Kirwin and organisations associated with her. The applicant did not suggest that the authorities would have any knowledge of his involvement. The Tribunal referred to the DFAT report which states: “3.56 Overall, DFAT assesses that individuals associated with … PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities”.

3. The Tribunal is not satisfied that there is a real risk that the authorities are or will become aware of the applicant’s minimal involvement with Oni Kirwin and organisations associated with her in Australia (nor that he faces a real risk of being imputed with involvement). The Tribunal is not satisfied that the applicant faces a real risk of significant harm for such involvement (actual or imputed) upon return to Fiji or thereafter. The Tribunal has also found that it is not satisfied that the applicant has any intention of becoming involved in political matters in Fiji in the future, and thus it is not satisfied that the applicant faces a real risk of significant harm for future political activity.

   General country conditions

4. The Tribunal also considered country information in relation to the applicant being an indigenous Fijian. The Tribunal put to the applicant that it did not appear that the applicant faced or faces a real chance of serious harm or a real risk of significant harm on the basis of being an indigenous Fijian. The Tribunal noted the DFAT report[10] suggested that there was no governmental (official) discrimination against indigenous Fijian, and only a low-level societal discrimination. The Tribunal asked if the applicant sought to comment in this regard, and he said no. The Tribunal considers that if he believed that he faced any discrimination as an indigenous Fijian, he would have told the Tribunal this.  The Tribunal is not satisfied that this particular applicant faces a real chance of serious harm or a real risk of significant harm in Fiji as an indigenous Fijian in the form of discrimination or otherwise. 

   [10] For example:  3.15 In remote rural and outlying island areas, indigenous Fijians are generally an overwhelming majority of the population and are unlikely to be the victims of societal discrimination. In many cases, there is strong societal cohesion and a strong degree of cooperation between indigenous landowners and Indo-Fijian tenants (see Land Rights). 3.16 Overall DFAT assesses there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians.

5. The Tribunal also discussed security situation in Fiji. It accepts that there are people targeted by the military/government who may face harm, but that he did not seem to have such a profile, and that generally, it did not appear that he would be of interest to the authorities such that he would face a real chance of serious harm or real risk of significant harm. The Tribunal asked if he sought to comment, and he said he does not know. Although the Tribunal accepts that the Prime Minister is the head of the military and the state, it accepts that Fiji is generally stable and secure: the 2006 coup was non-violent and did not affect the country’s overall security, and elections in 2014 were calm and free of violence (DFAT Report paragraph 2.48). The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm as a result of the authorities, the political situation, human rights concerns, corruption, police brutality, or the general security situation in Fiji.

   Religion

6. The applicant claimed at hearing that he attended church in Fiji every Sunday. He has done this for his whole life and his wife and children (and [the relative]) continue to do so in his absence. The Tribunal has not accepted the applicant has the strong views about the necessity for a Christian state as claimed. The Tribunal is however prepared to accept that the applicant will return to Fiji and continue to attend church, and associate with pastors, as he has done in the past, and as his family do currently. The Tribunal also notes that the applicant’s [sibling] works in a Bible bookshop and he made no suggestion that [they have] had any difficulties for [their] religious views or involvement. The Tribunal does not accept the assertion made in the affidavit that the applicant fears that he will be impeded in his religious activities, nor does it accept that the country conditions are such as to lead to his activities being impeded. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on the basis of his religion[11].

   [11] DFAT Report: 3.17 The 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion. The Constitution provides specifically for protection from religious discrimination. Freedom of religious belief is widely respected in practice in Fiji. Fiji’s government states its commitment to addressing discrimination and promoting a vision of equal rights and equal treatment for all Fijians regardless of race, including freedom of religion and belief. Designated public holidays include Christian, Hindu and Muslim holy days. ..

7. Summary, Refugee claims: The Tribunal is not satisfied that the applicant faced any harm or adverse interest in Fiji, nor has there been any adverse interest in him while he has been in Australia, nor is there a real chance of any imputed political opinion for any activities in Australia or in the past or future in Fiji.

8. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past concerns or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.

   Complementary protection

9. 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) (see Annexure A, which provides a summary of the relevant terms).

10. The Tribunal does not accept that the applicant has the views claimed concerning political matters or belief in religious states/ Fiji. It has above found that it is not satisfied there is not a real risk of the authorities becoming aware of the applicant’s minimal involvement with Oni Kirwin and any organisations associated with her while in Australia, nor that he faces a real risk of being imputed with an adverse political/religious opinion.  

11. The Tribunal has accepted that the applicant is an educated male with qualifications and work experience in Fiji. It finds that he has worked in Australia, and that he has a home where [a relative] lives where he will return, and he will continue to attend church. The Tribunal considers the applicant to be resourceful person who will be able to again find work upon return. The Tribunal has found that otherwise, the applicant is not a witness of truth concerning his claims that he faces a real risk of significant harm.

12. The Tribunal is not satisfied that this applicant faces a real risk of experiencing significant harm for any reason (including from the authorities, his attendance at church and associating with pastors nor for any actual or imputed political reason).

13. On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Fiji, there is a real risk that he will suffer significant harm for the purposes of 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).

14. 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

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

    Christine Cody
    Member

    
    

    ANNEXURE A - CRITERIA FOR A PROTECTION VISA

16. 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.

17. 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.

18. 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).

19. 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 below.  

20. 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 below.

    Mandatory considerations

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

Extract from Migration Act 1958

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

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

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

but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)   significant physical harassment of the person;

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

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

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

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

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

5K  Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L  Membership of a particular social group other than family

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

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

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

(c)   any of the following apply:

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

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

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

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

5LA  Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)   the person can access the protection; and

(b)   the protection is durable; and

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

..

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.

…

3.24 Overall, DFAT assesses that there is now little to no official or societal discrimination against members of the Methodist church based on their religion.