1613340 (Refugee)

[2019] AATA 5181

1613340 (Refugee) [2019] AATA 5181 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613340

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:4 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2019 at 5:12pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – disapprove of the current government – supports former Prime Minister Qarase – political comments at work – reprimanded by employer – detained and interrogated in relation to sedition activities – released without charges – ability to depart Fiji using own passport – no further interest to the Fiji authorities – limited contacts with Ms Oni Mereoni Kirwin – indigenous Fijians rights – restatement of Christian values – failed asylum seeker – validity of application – dual nationality – New Zealand – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his [age] from Fiji, who claims to be a national of that country.

2. The applicant first visited Australia in October 1999, as the holder of a [temporary] visa. He most recently arrived [in] October 2015, on a [different] visa. He applied for a Protection (Class XA) visa on 19 January 2016. On 5 August 2016, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 29 January 2019.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant worked as a [Occupation 1]. The Tribunal accepts that his superior reprimanded him in 2012 when he made some unprofessional political remarks, and that in 2015, he was questioned about some sedition offences and later released without charges. It also accepts that he disagrees to some extent with the current government. However, the Tribunal considers that the applicant has exaggerated these past incidents, and it finds he is not a person of adverse interest to the Fiji authorities for these or any other reasons. It concludes he is not a person in respect of whom Australia has protection obligations.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant worked until his departure from Fiji as a senior [staff] in the [Public Service] He claims that in mid-2012, he received a reprimand after making comments that were perceived as anti-government. An investigation followed. There was no outcome, but the applicant feels that his career stalled. In August 2015, the Fiji Police interrogated him for two days in connection with secessionist activities in the province of Ra, after [a] relative had driven the applicant’s car there during a visit to Fiji. The applicant claimed that he was ‘charged’ with sedition and inciting communal antagonism, although other evidence indicates that this was a caution interview that resulted in no charges or further investigation. Since arriving in Australia, the applicant sought the help of Ms Mereoni Kirwin’s groups, in seeking protection. The applicant claims to disapprove of the current government.

8. The applicant claims to fear that, due to all these factors, the Fiji authorities will perceive him to be a person with an anti-government political opinion; and that they will prosecute him on charges of sedition or inciting ‘communal antagonism’ which, he suggested, may be pending. He has particular fears that, if convicted and imprisoned, he will face a bleak future in prison, as a former [Occupation 1].

   Background

9. The applicant is a [age] year old man from [Town 1], Fiji. He is an ethnic Fijian whose languages are Fijian and spoken Hindi, and he is a Christian. He also speaks fluent English, and gave most of his evidence at hearing in English.

10. The applicant attended primary school in [Town 1]. In [year], he commenced secondary school in [Town 2], and has lived in [City 1] and [environs] from that time. He completed Form 6 in [year]. From 2001 to 2004, while employed at [Employer 1], he undertook a [specified] course at [an educational institute].

11. The applicant worked for [Employer 1] from 1992 until his most recent departure for Australia, as a [Occupation 1] and later as a [Occupation 2]. Correspondence submitted to the Tribunal refers to his recent work there as [a staff in charge of a certain role] of [Employer 1], managing [specified assets] and supervising [specific activities]. He also served in the Fiji military from [date] to [date], which included a posting [overseas].

12. The applicant married in [1988]. His wife was born in [City 1] in [year], and remains in Fiji. The couple has a [number of children]. The two oldest [children], [Child A] (born in [year], currently [age] years of age) and [Child B] (born in [year], currently [age]), were in Australia at the time of application. The applicant has since advised that [Child A] has a partner in Australia, and [Child B] has returned to Fiji to continue his studies. [Details of younger children deleted].

13. The applicant indicated that, at the time of application, his father (a New Zealand citizen) was resident in New Zealand, and his mother (a Fiji citizen) was in Australia. The applicant’s father has since returned to Fiji, and passed away. The applicant has a sister in [one country], and a step-sister in [another country]. Through maternal relatives and his wife’s family, he has extended family in Australia.

14. The protection visa application purported to include two of the applicant’s sons in Australia, [Child A] and [Child B]. However, as noted in the delegate’s decision record, they were barred under s.48A of the Act from making a further protection visa application while in Australia, as they had previously been refused protection visas while in the migration zone.

15. The applicant holds a Fiji passport, issued in [2013].

    Evidence

16. The evidence before the Tribunal includes the following relevant material (not all is listed):

    §  The applicant’s protection visa application form, of 19 January 2016. This was accompanied by typed responses to the questions, setting out his protection claims. At his Department interview, the applicant submitted an ‘affidavit’ dated 6 April 2016, which addressed his claims in more detail.

    §  Identity and personal documents:

    -   The applicant provided a partial photocopy (biodata page only) of his Fiji passport, issued [in] 2009. He brought the passport to the Tribunal hearing.

    -   A copy of the applicant’s first Fiji passport ([2001] to [2011]) with stamped pages showing multiple trips to Australia.

    -   Various identity documents, such as his Fiji drivers licence, his [Occupation 1] identity card and a [specified] Authority card. He also submitted to the Tribunal an extract from [Employer 1’s staff] list showing that he was [in charge of a certain role] in [the workplace].

    -   The applicant’s birth certificate, and those of his wife and four children, as well as his certificate of marriage.

    -   The applicant provided a copy of his latest Australian visa grant notice, and list of travel dates to Australia.

    -   A copy of the applicant’s father’s birth certificate.

    §  The applicant’s protection claims are set out in brief comments on the application form, and a more detailed submission dated 14 January 2015 from his representative. The letters of support (see below) also contain statements that the applicant relied on in his application.

    §  Supporting documents (to the Department and the Tribunal):

    -   A letter from [Superior 1], dated [August] 2012, entitled ‘Unprofessional conduct and disrespect of authority’.

    -   A motor driver’s daily running sheet, dated [August] 2015, purporting to show transport from [Town 3] to [Town 4] for the applicant and [another co-worker].

    -   A letter dated 6 September 2018 from [Mr C], a barrister and solicitor, who claims that the applicant was part of the group of suspects interviewed and charged with sedition [in] August [implicitly, 2015].

    -   A ‘to whom it may concern’ letter from [Superior 2], [Employer 1], dated [in] December 2015, confirming the applicant’s employment history and stating that he was arrested and detained for two days, without charge, in connection with the Ra sedition case.

    -   A letter from a police officer, [Ms D], dated [January] 2019, confirming that she advised the applicant in August 2015 that the police had instructions to re-arrest all those involved in the sedition case. A copy of her Fiji Police Force ID card is attached.

    -   A statement from [Mr E] (the applicant’s wife’s [relative]), stating that he used the applicant’s car to take [a foreign] flag and other secessionist materials to Ra province, during a visit to Fiji in May 2015. A partial photocopy of his [passport] shows travel to Fiji in 2014 and 2015, including [May] to [June] 2015).

    -   A statement from [Mr F], an army officer who served with the applicant [overseas]. He states that he advised the applicant to flee Fiji [in] August 2015, based on information that the applicant would soon be taken to court on sedition charges.

    -   Letter of discharge from the [Employer 1], dated [in] December 2015.  

    -   A ‘to whom it may concern’ letter from Ms Oni Mereoni Kirwin, in her capacity as ‘President, PISAI Australia’ and ‘President, Nadroga-Navosa Sovereign Christian Governments in Exile’, dated [in] January 2016.

    -   Documents relating to the applicant’s activities in Fiji in the lead-up to his departure in October 2015, such as the purchase of land, a mortgage over the land, a development application, a building permit, a vehicle purchase and evidence of his qualifications as a [Occupation 2].

    §  The applicant indicated on his protection visa application form that he would provide the following later: (a) a copy of the [Town 5] police station cell entry diary, and (b) copy of the police interview record. Subsequent correspondence from the Fiji Police Force CID, dated [November] 2017, indicates that they are unable to release a copy of the ‘caution interview’ as there were no formal charges. The applicant provided copies of email correspondence showing that he had tried to obtain copies of these documents.

    §  Country information:

    -   In accordance with Ministerial Direction No.56, the Tribunal drew on Department of Foreign Affairs and Trade’s most recent Country Information Report – Fiji, dated 27 September 2017, a copy of which the applicant also included in his written submissions.

    -   The applicant provided a large number of documents (142 pages) under the heading ‘Supporting documents for a re-think on the status of Fiji nationals now seeking refugee/protection in Australia and New Zealand from police-military brutality and non-independent judiciary in their country’. The applicant has not claimed, and the Tribunal has not identified, anything that relates directly to his personal claims. In her letter of [January] 2016 (referred to above), Ms Kirwin refers to these documents (paragraphs 19ff.). They therefore appear to be a package of supporting documents that she prepared for the applicant (and other Fiji applicants for protection visas), of a general nature.  

    -   Three extracts from the Fiji Times on-line, dated 26, 27 and 31 August 2015 concerning the heavy military presence in Tavua prior to a court hearing in which more than 30 villages from Ra were accused of sedition. A further item, dated 30 April 2018, advises that two men convicted of sedition have been jailed. The applicant confirmed at hearing that none of the articles mention him personally.

    §  The applicant attended a protection visa interview (‘Department interview’) on 7 April 2016. The Tribunal has listened to the recording, which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 5 August 2016.

    §  The review application form has attached to it a copy of the delegate’s decision.

    §  A submission received on 3 July 2018 has attached to it further documents (included in the list above).

    §  A submission received on 25 January 2019, with supporting arguments. Attached to it are various documents, some of which were previously submitted, and some new ones (set out in the consolidated list above).

17. The Tribunal received post-hearing submissions dated 5 February 2019, 12 February 2019, 15 February 2019. These addressed, respectively, the applicant’s nationality and issues that arose at hearing, such as the circumstances of his departure from Fiji. The Tribunal has listed the documents attached to these submissions above, for ease of reference.

18. The applicant appeared before the Tribunal on 29 January 2019, to give evidence and present arguments. The hearing was conducted in English, in which the applicant is fluent, although an interpreter in Fijian and English was present to assist if the need arose.

19. The applicant is represented in this matter by [his representative]. [His representative] attended the hearing.

    Receiving country and validity of application (dual nationality)

20. The applicant claims that he is a national of Fiji. He holds a Fiji passport, and has shown his familiarity with that country.

21. An issue that emerged is whether the applicant has dual Fiji/New Zealand nationality. A non-citizen who is a national of two or more countries cannot make a valid application for a protection visa, unless the Minister has exercised his/her discretionary power to allow such an application, on the basis that s/he thinks it is in the public interest to do so.[1]

    [1] An application for a protection visa is valid only if it is not prevented by s.91P of the Act: s.46(1)(d). Section 91P provides that if Subdivision AK of the Act applies to a non-citizen the application is not a valid application. Subdivision AK applies to a non-citizen if, at the relevant time, the non-citizen is a national of two or more countries: s.91N. The Minister has a personal discretionary power to determine that s.91P does not apply to an application if the Minister thinks it is in the public interest to do so: s.91Q.

22. On his protection visa application form, the applicant stated that his father is a New Zealand citizen (question 21, Form 866C) and was born in New Zealand (question 43). The New Zealand Citizenship Act 1977 provides that ‘every person born outside New Zealand on or after 1 January 1949 but before 1 January 1978 shall be a New Zealand citizen by descent if […] his father was a New Zealand citizen at the time of that person’s birth’[2], although this does not apply if the ‘person’s relevant parent was a New Zealand citizen by descent only […]’.[3] The applicant later provided his father’s birth certificate that shows he (the father) was in fact born in Fiji, of a New Zealand father. As a result, it appears that the applicant’s father was a New Zealand citizen by descent, and that the applicant does not have New Zealand citizenship by descent: s.13(4) of the NZ Citizenship Act.

    [2] Section 13(3)(a)

    [3] Section 13(4).

23. The Tribunal is satisfied that the applicant is a Fiji national, and that he does not have dual Fiji/New Zealand citizenship, or the nationality of any other country. Fiji is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

24. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

25. The Tribunal formed the impression that the applicant’s protection claims drew on incidents and experiences that he had in Fiji, but that he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection. It is also concerned that family members, and friends from [the police and former employer], have been prepared to assist the applicant with his application, sometimes by providing selective or misleading statements.

26. The applicant noted that he had a successful career with the [Employer 1], and had in effect forfeited a retirement pension that could come into effect when he turned 55. He invited the Tribunal to take these factors into account as evidence of his need for protection. The Tribunal notes, however, that there may be many reasons (apart from a fear of persecution or significant harm) motivating the applicant to move to Australia with his family. For instance, his affidavit of 6 April 2016 describes his discussions in mid-2012 with extended family members in NSW as to how he and his family might be able to move to Australia. Although the applicant claimed that he had explored these options in response to fears for his and his family’s safety (following problems at work), the Tribunal considers that his and his family’s subsequent conduct[4] undermines these comments. In its view, the applicant’s relinquishing of his position at [Employer 1] is of limited probative value in assessing whether he feared persecution or significant harm in Fiji, or whether other factors motivated him to depart that country.

    [4] The applicant’s return to Fiji and his previous employment in mid-2012, his older [children’s] later travel to Australia, the applicant’s return visit to Australia only in September 2015 (without seeking refuge in other places, such as New Zealand), and one son’s more recent return to Fiji, without incident.

27. The Tribunal’s full assessment follows.

    Profile and experiences in Fiji

    Improper conduct and disciplinary action in August 2012 

28. The applicant claimed that in August 2012, his employer disciplined him for unprofessional conduct and anti-government remarks. As recounted in his statements of claim and his oral evidence, the events unfolded as follows:

    §   Former Prime Minister Qarase was imprisoned in Korovau prison following his conviction on corruption charges (which the applicant referred to as ‘trumped-up charges’). [In] August 2012, [a senior staff member] telephoned the applicant to confirm arrangements for [Mr Qarase].

    -   During that call, the applicant confirmed that arrangements were in place. He added that, if needed, he would [undertake a backup plan]. His [supervisor] agreed. They both knew that this deviated from standard [procedure]. [A different team], some 24 km away, was actually responsible for such arrangements.

    §   On the morning of [August] 2012, the applicant decided that he would in fact [undertake the backup plan]. He knew that the [responsible team would not have the capacity]. [Details deleted]. He claims to have told some of [his co-workers] that he still considered Mr Qarase to be the legitimate prime minister. He quipped, in a half joking way, that ‘the wheels do turn around’, an oblique reference to Mr Qarase’s possible future leadership of the country.

    §   In the end, the applicant [went through with his backup plan which deviated from established procedures].  

29. The applicant claimed [his Superior 1] reprimanded him for these actions, in writing [in] August 2012. He submitted a copy of a letter headed ‘unprofessional conduct and disrespect of authority’. It identifies two breaches of conduct:

    a)[Deviation from established procedures] was a security [breach]; and

    b)A reliable source had overheard the applicant’s comment to [a co-worker] that Mr Qarase ‘was still the legal Prime Minister and should be treated like one. That the current regime will also end up in prison for illegally overthrowing the previous government.’  

1. According to the applicant’s statement, the [responsible team] had reported his conduct.

2. The applicant claims that [his employer] conducted an investigation into his conduct, but that it was ‘strange’. First, a junior [staff] interviewed him with some questions. Later, a more senior [staff] put the same questions to him. The applicant said that these investigations usually involved a three-member panel, which then prepared a report and recommended a caution, demotion or dismissal. In his case, there was no follow-up to the two interviews. The applicant found the silence and uncertainty ‘quite tormenting’. To this day, he is unsure of the outcome of the investigation.

3. The Tribunal accepts on the available evidence that the applicant’s supervisor reprimanded him in August 2012 for unprofessional conduct, and that two [Employer 1 staff] interviewed him about the security and protocol breaches. It does so with reservations, however, as there are some loose ends in his narrative. For instance, even if the applicant had already indicated to his supervisor that he might [have a backup plan], it is unclear what motivated him to go on to make political comments to other [co-workers] at the same time, even if partly in jest. It is also unclear why, if the [responsible team] considered the applicant’s [arrangements] to be a security risk or improper, he was also able to [complete the entire plan]. It also notes that [Superior 1]’s description of the applicant’s words appear to go beyond the applicant’s own characterisation.

4. The Tribunal also has reservations about the applicant’s characterisation of the investigation as ‘strange’, and it does not accept his portrayal as wholly reliable. It does not have independent information as to the [employer’s] internal procedures when following up such matters, and therefore cannot gauge what the applicant’s expectations were. It is clear, however, that the [Superior 1]’s blunt letter about the applicant’s unprofessional conduct already carried some force. As for the ‘full investigation’, the applicant does not appear to know whether the two interviewing [staff] wrote a report for [Superior 1], and/or placed a record on his personnel file, or took other action. The Tribunal places little weight on the applicant’s claim that he expected a more formal, transparent outcome or further punishment. As discussed at hearing, he had already served with the [Employer 1] for 20 years; he held positions of trust; and he remained employed in a similar position. There is no mention of any such incident or concerns in the [Employer 1’s more recent letter of] December 2015 (even though it does refer to the more recent allegations).

5. Based on the available material, the Tribunal finds that the [Superior 1]’s written reprimand [in] August 2012 served as a caution; that the two subsequent interviews did not result in any immediate follow-on; and that the applicant soon came to realise that there would be no further action.

   Repercussions from the security breach in August 2012

6. The applicant claimed that he was unsettled by the lack of outcome from the ‘investigation’ (that is, the two interviews), and he started losing sleep because of the eerie quiet surrounding his case. He also felt that he was being monitored. In this context, he mentioned that since Mr Qarase’s imprisonment at Korovau Prison, 14 soldiers had been deployed there, guarding entrances and searching people, although the Tribunal is not satisfied that this had any direct bearing on the applicant. Overall, the Tribunal is concerned that the applicant has exaggerated and misconstrued the situation following his reprimand. It does not accept that the lack of follow-up was foreboding; that the presence of additional security at the prison was linked to the applicant, that the applicant sensed he was being monitored; or that he genuinely feared for his safety.

   Travel to Australia in September 2012

7. The applicant obtained travelled to Australia in September 2012. He wrote in his statement of claims, and confirmed at hearing, that he came here planning to seek protection.

   §   The applicant travelled to Australia the month following the incident [and] the reprimand. During the hearing, he noted that, prior to such trips, he had to arrange leave from work, obtain a visa and make travel bookings. Although the Tribunal does not have the details of when exactly he obtained leave from his employer, or made visa and travel arrangements, it was obviously around the time of the alleged incident. The Tribunal accepts that the applicant may have been upset when the [Superior 1] sent the reprimand; and initially worried about further disciplinary action or a blot on his career record. However, it does not accept that he travelled to Australia in September 2012 in fear for his safety (from persecution or significant harm) or after prolonged uncertainty about the course of the investigations.

   §   In his statement of claims[5], the applicant wrote that his concerns for his safety escalated after a disturbing incident when an empty coffin was placed in the doorway to his office. He wrote: ‘I knew only I had to get out of the country’. The applicant said this occurred five months after the security breach, hence in early 2013. The alleged incident therefore occurred after the applicant’s return from Australia in late 2012, and played no role in his decision to travel.

   [5] Statement of 6 April 2016, paragraph 19.

8. The applicant claimed that he did not seek protection in Australia in 2012, but he discussed with relatives in NSW - members of his mother’s and of his wife’s extended families – how they could help the whole family leave Fiji. There are several striking aspects of the applicant’s account relating to this period:

   §   The Tribunal formed the impression, from the applicant’s written and oral evidence, that his focus was not on fleeing for his safety, but rather on securing his and his family’s eventual migration to Australia. For instance, during the course of discussions about his possible New Zealand nationality and whether he could have gone to that country, the applicant said that he had never applied for New Zealand citizenship and, although his father wanted him to move there, he was not interested. This seems consistent with the impression that the applicant’s long-term focus was on moving to Australia; and it suggests that he did not flee Fiji in late 2012, as intimated.

   §  The applicant claimed that the main reason he did not seek protection in Australia in late 2012 was because he feared that this could have adverse consequences for the rest of his family. If he stayed abroad and the Fiji authorities perceived him as having absconded, they might target and punish his two teenage [children], [Child A] and [Child B]. So he reluctantly returned to Australia and arranged for the [children’s] travel to Australia in January and December 2013, as the first stage of the entire family’s migration. Further relevant information emerged during the course of this review.

   -The applicant confirmed that his [children] did travel to Australia. As noted in the delegate’s decision record (attached to the application for review) and also confirmed by the applicant, they both sought protection in Australia, without success. He told the Tribunal that [Child A] remains in Australia and has a partner here (implicitly, [he/she] has sought or obtained a partner visa); and [Child B] has returned to Fiji, where [he/she] is studying, without incident.

   -The Tribunal signalled that [Child B]’s return to Fiji, without incident, while the applicant remains in Australia, may raise questions about the reasons he offered for not seeking protection in late 2012. In other words, it might cast doubt on the applicant’s claim that he feared his [children] would be in harm’s way if he stayed in Australia out of reach of the Fiji authorities. The post-hearing submission noted that now, in 2019, the Fiji authorities’ focus is on pursuing the applicant for the sedition case, which does not relate to his [children].

   -In the Tribunal’s view, this does not address the applicant’s stated reasons for not seeking protection in 2012, or at least the reasons he gave for not doing so. It recognises that the applicant’s thinking might have changed between 2012, 2015 and 2019. And it takes into account that his fears in 2012 may have been genuine, even if they have since proved to be unfounded. However, even allowing for these factors, the Tribunal considers that the applicant’s return to Fiji in October 2012 casts doubt on the significance of the reprimand in 2012, and the applicant’s description of how it affected him.

9. Taking all of the above into account, the Tribunal accepts that the applicant may have been upset at the reprimand he received at work, and this may have bolstered his interest in moving to Australia with his family. However, it does not accept that he genuinely feared for his or his family’s safety at that time; that it caused the [Employer 1] to have any lasting concerns about his professionalism or impartiality; or that it led the Fiji authorities to view him as anti-government.

   Experiences in Fiji from late 2012 until August 2015

10. The applicant returned to Fiji and continued working until his departure in September 2015. Relevantly, he continued to work as [a person in charge of a certain role].

11. The applicant claimed that in late February 2013,[6] there was a startling and worrying incident. He stepped out from his office one day, in the early afternoon. On his return, there was a coffin in the doorway to his room, blocking his entry. The applicant tried to find out what had happened, but fellow [co-workers] and CCTV operators declined to help him. He was deeply disturbed. In Fiji, people who are subject to these kinds of signs can ‘mysteriously disappear or [are] found dead’.

    [6] The applicant wrote ‘February 2014’, but this appears to have been a typographical error, given his reference to this having occurred some ‘five months’ after the written reprimand.

12. The applicant claimed that, meanwhile, there was still no outcome to the investigations; he felt that he was being monitored; and he was losing sleep due to the uncertainty. He drew some comfort that some of his colleagues were good Christian men who were concerned for him. As described, all these incidents occurred after the applicant’s return from Australia in late 2012, so they had no influence on his decision to travel there.

13. The applicant claims that he interpreted the ‘coffin incident’ (Tribunal’s term) ‘as a sign as to where [the] investigation was heading’. In the Tribunal’s view, there is minimal context for the alleged incident, or to support the applicant’s interpretation of it. For instance, there is no information about who put the coffin there, their motives or why they chose to do it in February 2013, without any follow-up. There is nothing to suggest that [Employer 1] management engaged in such actions to intimidate or discipline [employees]; that colleagues bully others in this way; or whether this may have been some kind of unrelated prank. The applicant has not claimed or suggested that there was any follow-up to this incident, in the almost 2½ years that he continued working in [the workplace]. In the circumstances, and given the Tribunal’s concerns that the applicant tends to exaggerate and misconstrue incidents, the Tribunal does not accept that there was a ‘coffin incident’ in February 2013 that led him to fear for his safety, or that caused him additional psychological pressure.

14. The applicant’s account of the period from February 2013 to August 2015 referred to his continued uncertainty about the investigations and the lack of any news. He remained in his position, but expressed concern to the Tribunal that his career had stalled and that he missed out on promotions. The Tribunal does not have before it material to indicate that the applicant was due for promotion in the period from late 2012 to mid-2015, on the basis of either merit or time served.  

15. The applicant claims that various factors prevented his travel to Australia before September 2015. There were financial issues, as he first raised money for his [children] to travel in January 2013 and December 2013. His leave applications in 2013 and 2014 were turned down, and, he implied, without approved leave he realised that he could not secure Australian visas. The Tribunal accepts, on the basis that it is possible, that the applicant would like to have visited Australia sooner, if he had had the money, accrued leave and/or approved leave. However, his continued employment [with the employer] and his delayed departure from Fiji reinforce the Tribunal’s view that he did not suffer any noteworthy adverse effects following the reprimand in August 2012.  

    Sedition allegations, detention and charges in August 2015

16. The applicant claims that in August 2015, the Fiji Police detained and interrogated him in relation to sedition activities, linked with the proposed breakaway Christian state of Ra.

17. By way of general background, the Department of Foreign Affairs and Trade recently reported[7] on localised efforts by indigenous ‘rebels’ to establish a so-called (breakaway) Christian State in Ra and Nadroga. In August 2015, the media reported the arrest of some 40 rebels for conducting ‘military-style training’ in Ra province. On 16 August 2015, Fiji authorities arrested 16 people in Nadroga-Navosa province for causing communal antagonism and sedition, after they signed the ‘Provincial Institutions of Self-Government of the Nadroga Navosa Christian State’. Another 37 persons were arrested in connection with attempts to establish the Ra Sovereign State, in the same period. DFAT, writing in September 2017, noted that trials were underway for 16 individuals from Ra province and 14 individuals from Nadroga province, all charged with sedition for their involvement in the attempted establishment of separate Christian states.

    [7] See DFAT Country Information Report – Fiji, 27 September 2017

18. The applicant has consistently maintained that he has never had any association whatsoever with Ra, except that his wife’s [relative] married into a family originally from that area. The only other link was the substantial submission prepared for the applicant by Ms Mereoni ‘Oni’ Kirwin,[8] dated 19 January 2016, in which she declares that she knew the applicant from Fiji, and that he is a member of both the charity PISAI, and the Nadroga-Navosa & Ra Sovereign Christian Governments in Exile. The applicant has since advised that he approached Ms Kirwin in the hope that she could assist him with his protection visa application, and for no other purpose. These circumstances cause the Tribunal to be somewhat sceptical about the applicant’s claim that the Fiji authorities suspected him of supporting the secessionists, but it now proceeds to assess the detailed account he gave of how this arose.

    [8] Writing as President of Pacific Indigenous Samaritan Association (PISAI) and as President of Nadroga-Navosa Sovereign Christian Governments in Exile.

19. The applicant described the incidents and allegations in his written statement of claims, his evidence at the Department interview[9] and at the Tribunal hearing, with a reasonable amount of detail and fairly consistently.

    §   [In] August 2015, [a senior staff member] unexpectedly called to say that [the applicant would be collected] at 8am, and [be taken to a] Police Station. The Police CID Unit had put in a request [to] interview the applicant.

    §   A driver collected the applicant from home, and they made the three-hour trip to [Town 3]. [An] intelligence officer, who worked with the police, accompanied the applicant. The applicant produced a photocopy of a driver’s running sheet showing the applicant’s transport from [Town 3] to [Town 4] in the early afternoon and evening of [August] 2015, with the annotation that the applicant and an escorting officer had been travelling ‘for sedition case’. The timing of these trips does not match the applicant’s accounts of his movements on that day, but it generally supports his claims.

    [9] The decision record, which the applicant attached to the review application, sets out relevant details.

20. The applicant said that a Fiji Police [team] had set up an interrogation centre [in Town 3]. Upon his arrival there, the applicant was escorted to the interrogation centre where a police task force was assembled. There were military personnel in the background. During the course of that day and the next, the police interrogated him about his links with secessionists, arising from the following: (a) the alleged presence of his car at a meeting of secessionists in the nearby village of [Village 1] in June 2015; and (b) information allegedly found on a laptop listing him as the interim [Minister] in the new state.

21. The applicant emphasised that the police treated him like a criminal during their investigations, using foul language and being discourteous. They denied him food.  

22. During the questioning, the officers took the applicant’s two mobile telephones, personal and official, and checked whether these revealed any contacts with secessionists. These revealed no incriminating evidence. The applicant commented that this was unsurprising, as he in fact did not know the secessionists.   

23. The applicant’s car: The police first asked the applicant why his car had been found in [Village 1] (a village in Ra, associated with secessionist activities), during a secessionist gathering.

    §   The applicant told the Tribunal that his wife’s [relative] [Mr E], an Australian citizen living in Perth, regularly visits Fiji and borrows his car. He did so during a visit in June 2015.

    §   Unbeknownst to the applicant at the time, [Mr E] drove his (the applicant’s) car to [Village 1], where he attended a large reception and traditional ceremony conducted by the people of Ra. He gave the people in the village several items, including a flag that was supposed to be the new identity of the Ra Province, when it became a sovereign Christian State. He also gave them a Bible and a scroll on which the Ten Commandments were printed.

    -   The applicant submitted a statement from [Mr E] confirming these events, and providing a partial photocopy of his Australian passport showing travel to Fiji between [May] and [June] 2015.

    §   [Mr E] mentioned the trip and his activities in Ra to the applicant only three days after it had occurred.

    §   The applicant later explained this to the police, emphasising that he has no knowledge of or involvement in efforts to set up a breakaway Christian state.   

24. The applicant’s nomination as an interim Minister in a secessionist State: Later that day, the police also revealed to the applicant that they had found his name on a laptop confiscated from supporters of the secessionist movement, listing him as interim [Minister]. They showed the applicant the list. Responding to the police questions, the applicant denied any involvement in any such group.

25. Sedition charges: The applicant claims that officers then escorted him to a room where they read charges to him, of sedition and inciting communal antagonism. They then conducted a formal interview which went on late into the night.

    §   The police drove him back to [Town 5] Police Station, where he was detained overnight, as if he were a high security inmate.

    §   The following morning, the police returned him [Town 3] Police Station, where officers interviewed him again until late that afternoon, [in] August 2015.

    §   The police advised that they would forward the matter to the Director of Public Prosecutions (DPP), who would decide whether to pursue the matter. They released him, dropping him off at [a bus stop]. He made his way home from there.

26. The applicant provided a range of evidence to support these incidents, and the police interest in him. These included, most relevantly:

    §   [Superior 2] wrote a reference letter [in] December 2015 which referred to the applicant’s arrest, detention and interrogation [in] August 2015, and his later arrest ‘without any charges laid against him on that allegation’.

    -   The Tribunal notes that this letter was written just after the applicant had lodged his protection visa application. While it appears to be a general character reference, its timing and the explicit reference to serious allegations (albeit without any actual charges) strongly suggest that it was in fact written to support this application. 

    §   [Mr C], [a] barrister from [Village 1], confirms in a letter dated [September] 2018 aspects of the applicant’s claims about [Mr E]’s use of his car. [Mr C] adds that he ([Mr C]) was one of [the] individuals charged with sedition, and later released on bail; that the High Court remanded him (and the others); and the matter is ongoing. Significantly, he adds: ‘My understanding is that soon after [the applicant’s] caution interview, the police released him’.

    §   The applicant also provided a copies of a written exchange in which he seeks a copy of the caution interview record. The applicant’s police contact, [Ms H] advised that she was not in a position to provide any documents, as the matter was with the DPP. Subsequent correspondence with Fiji Police Force [led] them to advise the applicant in the following terms: ‘[the Fiji Police Force]’ is not in a position to submit to your request for the release of a copy of your caution interview due to the fact that you were not formally charged with any offence’.

    §   (Ms Kirwin referred to these incidents in her supporting letter, produced solely to help him with this application. She wrote that he was subject to ‘police and military brutality’, and that he was subject to ‘fictitious and dubious allegations of sedition and inciting communal antagonism still hanging over his head […]’. Relevantly, the applicant has not claimed to have been subject to military brutality. Given Ms Kirwin’s lack of first-hand knowledge about this incident and the applicant’s account of his limited contact with her, the Tribunal places no weight on her letter as independent corroboration of his claims.)

1. The Tribunal shares the delegate’s concerns about the credibility of this claim. It is concerned that the applicant, together with family and friends (including former and current work colleagues), may have fabricated or mischaracterised this incident in order to associate himself with the Christian secessionists in Ra. Despite these misgivings, the Tribunal accepts on the basis that it is plausible, that the [Fiji Police Force] arrested him, transported him to an investigation centre in [Town 3] and questioned him (in the vicinity of military personnel) in relation to possible offences relating to sedition and inciting ‘communal antagonism’. These are indeed serious offences.

2. The Tribunal also accepts that [Mr E]’s use of the applicant’s car to visit Ra, without his prior knowledge or consent, may have formed the basis for enquiries that the applicant himself was somehow associated with the breakaway Christian state. Again, the Tribunal makes this finding with reservations.

3. The Tribunal has more difficulty with the applicant’s claim that the police showed him a laptop on which his name appeared as a minister in the secessionist state.

   §   The applicant said that when he saw the list, there were irregularities. For instance, his name was incorrectly spelt, and, unlike the other nominated ‘ministers’ whose names were on the list, he was not assigned a driver. He thought that the police may have doctored the list with a view to intimidating him and extracting a confession. In other words, he suspects that the police do not have any evidence or reason to believe that the secessionists view him as part of their inner circle, or a potential minister.

   §   In other evidence, the applicant expressed concern that the appearance of his name on the list might have been a sign that someone was framing him. The Tribunal considers this suggestion to be speculative and contrived. First, it does not sit well with his other thoughts that the police might just have added his name to a list as a means of testing his credibility. Second, there is no apparent reason why a person with a grudge would try to frame him for such an obscure offence as sedition, in a part of Fiji in which he has virtually no personal link.  

   §   The Tribunal has significant doubts as to whether this was a line of questioning at all. It finds that, if it did occur, the police presented the list with the applicant’s name on it merely in order to test whether he had any broader involvement with the secessionist movement (beyond the use of his car for transport to a gathering). 

4. As noted above, the applicant provided a straightforward, credible account in his primary application and on review, that he in fact has no association with or interest in the secessionist Christian state, except that his relative [Mr E] used his car to travel to a meeting and transport some secessionist materials. [Mr E] is his wife’s [relative], whose sister-in-law (his brother’s wife) is from Ra. The applicant provided a statement from [Mr E], but did not request the Tribunal to take evidence from him. The Tribunal is satisfied, and finds, that the applicant provided the same kind of explanation to the police during the caution interview. It notes that the police also checked his two mobile telephones, to confirm that he does not communicate with the suspected secessionists; and there appeared to be no other incriminating evidence.

5. The Tribunal makes the following findings in relation to the events of August 2015.

   §   The Tribunal finds that the applicant was questioned during a caution interview, on the basis of evidence that the Fiji Police viewed him as a potential defendant or witness to an offence (in this case, sedition and inciting communal antagonism), after his car had been sighted at a meeting of the secessionists in [Village 1]. Relevantly, this was a caution interview, during which evidence is gathered that may or may not form the basis for further action, such as charges.

   §   The Tribunal appreciates that the line of questioning may have surprised the applicant, but it finds that he was readily able to explain the reason why his car had been sighted in Ra, and there was no other incriminating evidence against him.

   §   The applicant spoke of his mistreatment during this period, such as being spoken to rudely and not given food during the day. He described it as ‘rude, violent, demanding, crude, humiliating and inhumane. The Tribunal accepts that the questioning was unexpected and upsetting for the applicant, and that the interviewing officers may have been brusque. However, it is not satisfied that the treatment amounted to persecution or significant harm, even cumulatively, and even taking into account the psychological impact on the applicant.

   §   The Tribunal notes that [Superior 2] referred to his ‘wrongful imprisonment’, and the consequent pain and suffering for the applicant and his family. [Superior 2] made the comments in the context of a letter which, in the Tribunal’s view, was written to support this application. The Tribunal is not satisfied on the available material that the caution interview or the conditions in which it was held were unlawful (although there might, in different circumstances, be questions about the admissibility of the record in any legal proceedings); or that the applicant received treatment that was cruel or inhuman, or degrading, such as to amount to ‘significant harm’.

   Events following the detention

6. The Tribunal accepts that the investigating officers forwarded the record of the caution interview to the DPP, as per normal practice. The applicant’s account of the interview and the surrounding circumstances, his release without charges, and the lack of any further investigation or other measures up to the present, all indicate that the Fiji Police had no further interest in him.

7. Pressure at work: The applicant returned to work after the interrogation. He claims that [Superior 2] spoke to him, and he (the applicant) reassured his superior that he had no connection with the secessionists whatsoever, with the sole exception that his wife’s [relative] had used his car to travel to a meeting of the secessionists. It is apparent from [Superior 2]’s letter [of] December 2015 that he had no further concerns about the allegations.

8. The applicant claims that, nonetheless, at work he was subject to rumours and ridicule, as senior colleagues started to call him the ‘[Government Official]’. At hearing, he described further adverse impacts. He claimed that, in light of the allegations, he had to work under the strict supervision of [Superior 1]; his job duties were [changed]; and he believes his name was removed from a shortlist of [staff] nominated for participation in [a sought-after program]. The Tribunal is concerned that the applicant was improvising in describing these impacts, and places little weight on these statements.

9. In his letter of 5 April 2016, the applicant also mentions that the incident tarnished his career, and that he had ‘lost all credibility’ with his superiors. The Tribunal considers that – against the background of his unprofessional conduct in 2012 – the applicant’s supervisors might well have regarded the applicant as having acted unwisely in lending his car to a relative, without any expectations as to where or for what purposes it was used.

10. More relevantly, however, the applicant remained in his position (at least nominally); he was granted leave; and, according to the letter of discharge dated [December] 2015, he remained an [employee] until he failed to return to duty from his visit to Australia. The Tribunal notes, too, that even after the applicant’s discharge, [Superior 2] wrote a positive recommendation letter, which specifically stated that the applicant was detained and questioned in relation to a sedition matter, but released without charges. There is no hint in the letter that the applicant is a person of ongoing interest to the DPP or any other Fiji authorities. The Tribunal places greater weight on these factors than it does on the applicant’s unsubstantiated claims that he faced ridicule, pressure and the denial of employment opportunities as a result of the questioning in August 2015. It finds that the applicant has significantly exaggerated the subsequent effects.

11. Fear and apprehension: The applicant claims that he feared for his safety after the August 2015 questioning, and remains worried that he may yet face serious criminal charges of sedition and communal antagonism.

    §  In this context, he provided a copy of an email he allegedly sent [in] April 2016 to [Ms H], a police officer who had been sympathetic to his situation. The applicant, writing just prior to his Department interview, gave the following background information:

    [Information deleted]. 

    §  The applicant also received a statement from a police constable, [Ms D], who identifies herself as a family friend. She wrote that she told the applicant in August 2015 that the police had been tasked to ‘charge all those involved in sedition cause because the government saw this as a major threat to the government’s stability’. She alerted him that they would start to re-arrest him and others, and that he would have to leave the country as soon as possible.

    §  In a similar vein, [Mr F], an officer who served with the applicant [overseas], wrote a statement declaring that he likewise informed the applicant [in] August 2015 that he should flee the country ‘because he [[Mr F]] had information that he was soon to be taken to court for the case of sedition […]’.

12. The Tribunal accepts that his detention and questioning may have upset the applicant, and perhaps added to his (already longstanding) interest in leaving Fiji for Australia. However, it does not accept that he genuinely feared being re-arrested, detained, questioned again or subject to criminal charges. In relation to his comments to [Ms H], that he had to leave the country for his safety, the Tribunal is concerned that the applicant chose his words in April 2016 with his forthcoming Department interview in mind, and that it was not an accurate reflection of his thoughts at the time. Similarly, in relation to the comments from [Ms D] and [Mr F], both of whom claim that they tipped the applicant off about a possible re-arrest and court trial, the Tribunal has several concerns. First, both of these persons appear to be close to the applicant and apparently keen to assist him. The Tribunal therefore places limited weight on their statements as independent corroboration of what occurred. Second, neither gives insight as to how they accessed the information, and whether it was specific to the applicant or general in nature. Third, subsequent events – that is, the fact that the DPP has taken no further action – cast doubt about the reliability of their information. The Tribunal finds that the DPP took no action because the applicant clearly had no personal connection with any secessionist activities, and was not a person of adverse interest to the Fiji authorities. It further finds that, even if the unexpected detention and questioning upset the applicant, he quickly knew there was no basis for any further action, and he did not genuinely fear for his safety.   

13. In sum, the Tribunal accepts on the available material that police officers questioned the applicant in August 2015 in relation to the serious offences of sedition and communal antagonism, which secessionists in Ra province were alleged to have been involved. Their interest in the applicant arose out of his relative’s use of his car to attend a secessionist meeting. The Tribunal accepts that the applicant was upset about the questioning, and concerned that it might affect his career prospects, in light of the reprimand he received in mid-2012. However, the Tribunal finds that the questioning was merely a caution interview. It does not accept that any charges were laid during the course of the interview (as the applicant claimed), or at any time since. The Tribunal does not accept that there were any noteworthy repercussions, such as teasing at work, diminished job opportunities or changed work arrangements. The Tribunal also does not accept that the applicant genuinely feared any further repercussions, from the DPP, his employer or others; and that he did not fear persecution or significant harm from anyone.

    Departure from Fiji

14. The applicant departed Fiji [in] October 2015, more than two months after the police had questioned him about suspected secessionist links. Two questions arise with the applicant’s departure from Fiji: (a) whether he did so in response to a genuine fear of being harmed by the Fiji authorities, and/or in pursuance of his longer-terms plans to move to Australia; and (b) in particular, how he managed to depart if, as claimed, he was subject to ‘sedition charges’.

15. The applicant’s motivations: The applicant’s account of his discussions in 2012 with family in Australia how he and his could migrate here raises questions about his motivation for departing Fiji in 2015. At hearing and in the post-hearing submission, the applicant reiterated that he only left Fiji due to his fears arising from the ‘sedition charges’, and not for any financial, economic or family-related reasons.

    §   He emphasised that he had served in the [Employer 1] for many years, and was a qualified [Occupation 2].

    §   He also submitted evidence of having made various financial and personal commitments between March 2011 and September 2014. These included transactions during 2011 and 2012, such as the purchase of land, a bank loan, development application and the grant of a building permit. All of these preceded the dispute over his dealings with Mr Qarase in August 2012. He also submitted evidence of a car loan taken out in September 2014.

16. It is difficult to assess a person’s subjective motives or fears at a past point in time. Furthermore, there may be multiple factors motivating a person to undertake travel or other activities. Even so, on the totality of the evidence before it, the Tribunal considers that the applicant’s long-term interest in migrating to Australia may be one relevant factor. It takes into account that he took out a car loan one year before his departure, but it places little weight on this as evidence that the applicant intended to stay in Fiji for the longer term, and that he left in October 2015 only due to a fear of persecution or significant harm.

17. The applicant’s ability to depart Fiji: As discussed at hearing, a more significant issue is the applicant’s ability to depart Fiji in October 2015 if, as claimed, he was subject to ongoing investigations or (pending) charges of sedition. The seriousness of such allegations weighs heavily in the Tribunal’s consideration of this matter.

18. The applicant claimed at hearing, and his representative confirmed in his post-hearing submission, that he was able to depart Fiji using his own passport because the charges had not yet proceeded to the courts (Tribunal’s italics), and there was at that stage no court order requiring him to surrender his passport. The Tribunal accepts that he had not appeared before court and that the prosecutors (or other authorities) had not applied for or obtained any court order to have his passport confiscated. However, the Tribunal has found above that after the police caution interviews [in] August 2015, there was no further action at all. The Tribunal further finds that, following the caution interviews [in] August 2015, the applicant knew that he was no longer a person of interest to the authorities. His departure from Fiji in October 2015 reinforces its findings above that the Fiji authorities had no adverse interest in him, at the time of his departure.

    Activities in Australia

19. The applicant presented a letter from Ms Oni Mereoni Kirwin, who describes herself as ‘President, PISAI Australia’ and ‘President, Nadroga-Navosa Sovereign Christian Governments in Exile.’ Her letter states that she knew the applicant [personally]. She also stated that the applicant ‘is a member of [PISAI], and has requested [her] help with his current application for a protection visa’. While most of the letter appears to be a general description of her beliefs and activities, she concludes: ‘[the applicant] has […] been subjected to police and military brutality in Fiji in August/September 2015, with fictitious and dubious allegations of sedition and inciting communal antagonism still hanging over his head today.’ She goes on to state that the applicant ‘is a registered member of both PISAI and the Nadroga-Navosa & Ra Sovereign Christian Governments in Exile’.

20. At hearing, the applicant stated briefly that he approached Ms Kirwin’s group seeking help with his protection visa application. She wanted him to join the group and pay a fee. At the Department interview, he expanded on this saying that, at the time, she was helping fund legal representation for those persons on sedition charges.

21. The Tribunal is satisfied from the applicant’s evidence at hearing that the applicant’s sole purpose in approaching Ms Kirwin was to seek her assistance in obtaining protection in Australia. His contact with her group was limited, and his brief comments indicate that he was not interested in joining or making any financial contribution to her group. The applicant has not claimed, and the Tribunal detects no implied claim, that he had any further involvement. Despite the applicant’s claim of his very limited contacts with Ms Kirwin’s group, his representative advanced a claim that even this could result in an imputed anti-government political opinion. The Tribunal assesses this immediately below.

    Political opinion   

22. The applicant claims that he is opposed to the current Fiji government. He claims that this was reflected in his comments in 2012, and that he generally feels inhibited from voicing these opinions, due to the current political climate in Fiji. He said that, in Australia, he feels free to voice his opinion critical of the Fiji government (for instance, in discussions). The Tribunal accepts, on the basis that it is plausible, that the applicant prefers the leadership of former Prime Minister Qarase and, as he suggested at the Department interview, he broadly supports stronger rights for indigenous Fijians and the restatement of Christian values. However, there is no persuasive evidence that he has been interested or engaged in any broader political movement or activities.

23. The submission of 21 January 2019 places greater emphasis on the applicant’s perceived political opinion, arising from the comments he made in 2012; the incidents in 2015 (when his car was located at a secessionist meeting in [Village 1], and his name was found on a list of proposed ministers for a breakaway state); and his involvement with Ms Kirwin’s group.

24. The Tribunal’s assessment of these incidents is above. For the reasons that follow, the Tribunal does not accept that these factors, individually or cumulatively, have led the Fiji authorities or others to regard him as a person of adverse interest, due to a perceived anti-government political opinion.

    §   In relation to the applicant’s political comments [in] August 2012, the Tribunal notes that this occurred while the applicant was [on duty at work]. [Details deleted]. The Tribunal is not satisfied that his careless joke or comments to colleagues actually involved an express statement that ‘the current regime will also end up in prison for illegally overthrowing the previous government’, even if the [Superior 1] characterised it in those terms. The Tribunal is also not satisfied that the [Employer 1’s] reprimand went beyond an instruction to the applicant that, while [at work], he must act in an impartial, non-political manner. In light of the applicant’s continued employment in a senior position of trust in [Employer 1], the Tribunal is not satisfied that he was perceived by his employers or others to have a strong anti-government political opinion.

    §   The Tribunal does not accept that the caution interview in August 2015 involved anything more than the applicant having to account for why his car appeared at a secessionist meeting in [Village 1] in mid-2015. It finds that he provided an explanation for this, and that he is of no further interest to the Fiji authorities in this regard. The Tribunal does not accept that the applicant’s name appears on any genuine list of proposed ministers for a breakaway state (although the police might have asked him about that in the course of their questioning).

    §   The Tribunal notes that the applicant described his contacts with Mr Kirwin’s groups as minimal, and for the sole purpose of obtaining help with his protection visa application. The submission of 21 January 2019 goes one step further, suggesting that his membership of the PISAI and the Fiji Native Government in Exile may ‘bolster’ perceptions that he is an anti-government supporter, and holds a political opinion opposed to the government. The Tribunal is not satisfied that the Fiji authorities have any knowledge of or interest in the applicant’s contacts with Ms Kirwin or her groups. Furthermore, given the applicant’s strong statements that he has no past involvement with or interest in the breakaway Christian state of Ra (a reassurance that the Fiji Police evidently accepted in the caution interview), the Tribunal does not accept that his brief contacts with Ms Kirwin would result in such a perception.

1. On the available evidence, the Tribunal does not accept that the applicant holds a political opinion that motivates him to speak out or become engaged on Fiji political issues. In its view, his preference for Mr Qarase as prime minister and his views on Fijian rights and Christian identity, fall well short of such a political opinion. The Tribunal also finds that the applicant was not perceived (by his employer, the Fiji authorities more generally, or others) of having a political opinion opposed to the government. In reaching this conclusion, the Tribunal takes into account the incidents in August 2012 and August 2015, as assessed above.

   The applicant’s dismissal from [Employer 1]

2. The applicant presented a letter of discharge from [Employer 1], dated [December] 2015. The stated reason was that he had ‘fail[ed] to adhere to rules and regulations’. The letter acknowledges the applicant’s past service and sets out some administrative arrangements. Curiously, the letter misspells the applicant’s surname.

3. The letter was dated some seven weeks after the applicant’s arrival in Australia. The limited available information suggests that he had failed to return to work after his approved leave, which resulted in his dismissal. The applicant’s continued employment in a senior position in [Employer 1], up to the time of his dismissal in December 2015, and the [employer’s] apparent expectation that he return to work after his visit to Australia, reinforce the Tribunal’s findings above that he was not a person of adverse interest to the Fiji authorities, in connection with charges of serious sedition or inciting ‘communal antagonism’, and any anti-government political opinion, actual or perceived.

4. The Tribunal detects nothing in the content or tone of the discharge letter to suggest that the applicant is a person of adverse interest to the [employer] or the Fiji authorities, for any other reason.

   Failed asylum seeker

5. The Tribunal accepts that the applicant, having sought protection in Australia, would return to Fiji as a ‘failed asylum seeker’ if this application fails.

   ASSESSMENT: REFUGEE CRITERION

6. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to other relevant factors – in particular, country information and the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Fiji (for reason of his political opinion, actual or imputed, or for any similar reason enumerated in s.5J(1)).

7. Findings: The Tribunal has found above that the applicant is a long-serving [Occupation 1]. It accepts that he disapproves of the current Fiji government, but is not satisfied that he has political opinion that extends beyond that general view. It accepts that he was reprimanded for unprofessional conduct in August 2012, and that he was concerned about the impact on his career prospects. The Tribunal also accepts that he was interviewed under caution in August 2015. Although the applicant was surprised and upset by his treatment over the two days of questioning, the Tribunal finds that there were no charges or further investigations relating to the offences of sedition or communal antagonism, and the matter was closed. The Tribunal finds that these incidents added to the applicant’s resolve to move his family to Australia, but that he did not flee persecution or significant harm. The Tribunal finds that he was not of adverse interest to the Fiji authorities at the time of his departure, in relation to criminal matters or any perceived anti-government opinion. The Tribunal does not accept that the Fiji authorities have developed any adverse interest in him, as a result of his contacts with Ms KIrwin’s groups or for any other reason.

8. Future conduct: The Tribunal asked the applicant about his future conduct if he were to return to Fiji. He reiterated his protection claims, underscoring that he fears the prospect of being prosecuted on criminal charges (due to the sedition allegations), a long period of imprisonment and harsh treatment as a former [Occupation 1]. The applicant was unable to elicit further details from him.

9. The Tribunal accepts that the applicant was discharged from [Employer 1], after he failed to return to work after his approved leave. The Tribunal is not satisfied that there were any other factors behind the discharge. Although it now appears that the applicant has forfeited his position in [Employer 1], he has qualifications as a [Occupation 2] and in [Discipline 1], and he appears to have a good network of [contacts] in Fiji. On the limited available material, the Tribunal infers that the applicant would return to [City 1], re-establish himself there and seek work commensurate with his qualifications and experience. The Tribunal is not satisfied that there are any factors (for instance, related to the (now-rejected) claims of pending criminal charges or of an adverse political profile) that would prevent the applicant from re-establishing himself in Fiji. On the available material, the Tribunal is not satisfied that the applicant faces a real chance of being subject to serious harm – including the denial of a capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist[10] - on his return to Fiji.

   [10] To take one of the non-exhaustive instances of serious harm set out in s.5J(5) of the Act.

10. In light of the above assessment, the Tribunal finds that the applicant is not subject to any pending criminal charges (including any that might have a political background). It follows that there is no real chance of the Fiji authorities further investigating, prosecuting, convicting or imprisoning him because of such matters, or of him being subject to serious harm as a result of such legal actions. Similarly, there is no real chance of the applicant being subject to serious harm arising from discriminatory treatment from the Fiji authorities, fellow prisoners or others, due to his political opinion (actual or perceived), his past work as [Occupation 1], or for any reason set out in s.5J(1)(a).

11. The Tribunal has had regard to a range of country information, including DFAT’s most recent country report of September 2017. The applicant provided a full copy of this report to the Tribunal, and it underpinned discussions at hearing. In relation to individuals associated with the Australia-based Fiji Democracy and Freedom Movement (FDFM, which the applicant did not claim to be involved with) and PISAI, DFAT opined that ‘Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at moderate to high risk of harassment and arrest by authorities’, and clearly distinguished this from persons who are mere members or supporters of these organisations. Having regard to the above findings of fact, the Tribunal concludes that there is no real chance of the Fiji authorities developing an adverse interest in the applicant, arising from the caution interview in August 2015, his brief contacts with Ms Kirwin in Australia, or any combination of these factors.

12. The Tribunal has accepted that the applicant prefers the former government led by Mr Qarase, and that he shares the views of those promoting greater rights for indigenous Fijians and Christian values. However, it does not accept that he has an adverse political profile with the current Fiji authorities, including as a result of the mid-2012 incident with Mr Qarase; the caution interview in mid-2015; his brief contact with Ms Kirwin’s group; any political comments he may have made in Australia; or any combination of these incidents. The Tribunal does not accept that, if he returns to Fiji, there is a real chance of the Fiji authorities pursuing him due to any perceived anti-government stance, let alone inflicting serious harm on him. Given the applicant’s limited political interests, the Tribunal also does not accept that he would have to modify his conduct or refrain from political activities in order to avoid persecutory harm.

13. The applicant’s statements imply that he also fears harm as a result of returning to Fiji as a failed asylum seeker. When asked about this at hearing, he said he would not feel safe returning until such time as there was a new government, and restated his other protection claims. He did not suggest that he feared the consequences of merely having sought protection in Australia. Indeed, the email he sent to the police officer [Ms H in] 2016 disclosed to her that he was attending a protection visa interview the following day, without any apparent concern that this could cause him problems on his return to Fiji.

14. Nonetheless, for the sake of completeness, the Tribunal considers it appropriate to assess this implied claim. Even though the Australian authorities will disclose no information about the applicant’s protection visa application, it is reasonable to assume that the Fiji authorities may suspect that he sought protection, given the duration of his stay in Australia and the fact that many other Fijians have done so. Despite the sizeable number of Fijians who seek protection in Australia and who have returned to Fiji, the Tribunal has found no information to suggest that the Fiji authorities have any adverse information in such people. As discussed at hearing, the one exception appears to be persons who are already high profile regime opponents[11] (in other words, persons whom the Fiji authorities are intent on pursuing for independent reasons).

    [11] ‘DFAT Advice FJI36727 - Returnees 6 July 2010’, Department of Foreign Affairs & Trade, 6 June 2010, CISDCDCAAB1944 

15. The Tribunal is mindful that the applicant and his representative have stressed that it is the cumulative effect of the applicant’s circumstances that give rise to a real chance of persecution. However, even on this basis, the Tribunal finds that there is no real chance of him being subject to serious harm amounting to persecution, for any of the reasons set out in s.5J(1).                

16. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Fiji.

17. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

18. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.

19. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about general and political conditions in Fiji. It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him (such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment). It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Fiji.    

20. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    CONCLUSION

21. 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).

22. 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).

23. 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

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

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

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