1613955 (Refugee)

[2019] AATA 3741

1613955 (Refugee) [2019] AATA 3741 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613955

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Shane Lucas

DATE:11 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 11 February 2019 at 12:01pm

CATCHWORDS

REFUGEE – protection visa – Fiji – political opinion – opposition to Fiji First Party – member of Social Democratic Liberal Party of Fiji – abused and assaulted by Fijian military – alleged member of blacklist – evidence of recent threats or harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a Fijian national born on [date]. He applied for the visa on 13 June 2014.

3. The delegate refused to grant the visa on the basis that she was not satisfied that Australia has protection obligations to the applicant under the 1951 Refugees Convention, as amended by the 1967 Refugees Protocol. The delegate was not satisfied that the applicant has a genuine and well-founded fear of persecution for a Convention reason in his receiving country or that he faces a real risk of significant harm should he return to Fiji. Accordingly, the delegate determined that the applicant did not meet the criteria for the grant of a protection visa under sections 36(2)(a) or 36(2)(aa) of the Act.

4. The applicant appeared before the Tribunal on 20 December 2018 to give evidence and present arguments.

5. The applicant was not represented in relation to the review by a registered migration agent.

6. At the commencement of the hearing, the applicant provided written statements from persons of his acquaintance who claim an understanding of his situation and circumstances. These include individual letters by the applicant’s brother (dated 6 February 2018);  [Official A of] the Social Democratic Liberal Party of Fiji (SODELPA) [State 1 Branch, Australia] (dated 15 February 2018); a registered psychologist with [Clinic 1] [State 1] (dated 7 September 2018); a pastor with [a named church], [State 1] (dated 15 August 2018); a minister with [a Christian organisation] [State 2] (dated 19 February 2018); and two letters from a medical practitioner with [Clinic 2] [State 1] (dated 2 May 2018 and 19 December 2018 respectively). These statements have been considered in the making of this decision and are referred to below where and as relevant to the Tribunal’s consideration of the applicant’s claims.

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

   CRITERIA FOR A PROTECTION VISA

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

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

11. 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 grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this review is whether the applicant has a well-founded fear of being persecuted in Fiji as defined in Article 1 of the Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

    Identity

14. The applicant provided a copy of his Fijian passport to the Department of Home Affairs (Home Affairs) and this document was sighted by the Tribunal. On the basis of this information and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, and that he is a Fijian national, that country also being his receiving country.

    Claims

15. In his application for a protection visa on 13 June 2014, the applicant provided the following written responses in the section Your reasons for claiming protection at pp.5-8 of Form 866B [Application form for each person included in this application who wishes to submit their own claims for protection]:

    [Q37 – Why did you leave that country?]

    I left the country due to fear that I will be detained again and taken to the military camp to be tortured. My fear resulted from an argument that I had recently with my [relatives] who are in the military and are loyal to Bainimarama and his illegal regime.

    [Q38 – Have you experienced harm in that country? - YES]

    In February 2008, we were attending a funeral in [Location 1]. Two military officers attended the funeral, namely Sergeant [name withheld by the Tribunal] and Staff Sergeant [name withheld by the Tribunal]. After the funeral we gathered for a grog session which is part of our culture. The two military officers were vocal in expressing their views about Bainimarama. The men in the shed feared the military men and were silent. I did not tolerate what was happening and spoke out expressing my views and opinions about the illegal regime. The military officers were intimidated. As a result of my talk against the military, I was taken to the military camp in [Location 1] and was physically and verbally abused by soldiers.

    [Q39 – What do you fear may happen to you if you go back to that country?]

    I fear that I will be physically tortured and abused. I will be illegally detained and will be falsely imprisoned.

    [Q40 – Who do you think may harm/mistreat you if you go back?]

    The Fijian military.

    [Q41 – Why do you think this will happen to you if you go back?]

    I do not support this illegal regime and I have always been vocal about it. I recently argued with my [relatives] who are in the military. In my opinion, it was a debate that worth discussions. However, my military [relatives] took it personally. I started receiving verbal threats that I will be taken to the military camp. This instilled fear in me and I thank God that I was granted a visa which enabled me to flee the country.

    [Q42 – Do you think the authorities of that country can and will protect you if you go back? - NO]

    The authority in Fiji is Bainimarama and his cronies. Anyone who opposes the illegal regime, breaks the law, so I have no faith in the authorities in Fiji.

16. On 15 August 2016, the applicant provided additional information to Home Affairs in response to the above questions at pp.18 of Form 80 [Personal particulars for assessment including character assessment]:

    [Q37 – Why did you leave that country?]

    Argument: [In] February 2014, I heard Bainimarama vocals about voting for his Fiji First Party in the coming election. I told my [relatives] in the military during a grog session in [City 1] that Bainimarama is not the right person to lead the Government because of what he has done to the people of Fiji who have lost their lives being tortured and physically abused by his regime. Bainimarama has got blood in his hands and yet has no knowledge of being a good leader to lead the people of Fiji or the government ironically and in a Godly way.

    [Q38 – Have you experienced harm in that country? - YES]

    At the camp I was told to take off my pants and was hit on the head. While preventing my head, I broke my [Body Part 1]. I crawled and was hit and kicked. They dragged me by the collar and warned me not to report them. I was taken to the hospital and treated. A soldier was also there while I was being treated to see that I do not report anything to the doctor. If I reported them, they are going to kill me. After being treated for two hours I was taken back.

    I was traumatised by what I had gone through. When I was brought back, my wife and children were also traumatised when they saw me. My [Body Part 1] was broken, had bloody eyes and wounds all over, and was limping due to the torture. After experiencing what I had gone through, I was scared to let anyone know about what had been done to me. Even my wife and children only saw me limping, due to the torture, with the broken [Body Part 1] and swollen body but they did not really know what actually happened. My [relatives] were there but I did not want to talk to them.

    After the experience I had become very aggressive and as a result my wife asked for a transfer to [City 2] with our children in January 2009. During [2010], I was in [City 1] with my family, one of my [relatives] in the military informed me that Bainimarama’s ‘hit squad’ is already in [Location 1] to arrest all those who had opposed and neglected the ‘Charter’ – Bainimarama’s Political Issues (Constitution).

    I was psychologically and emotionally affected and as a result I [suffered a medical incident] in [January] 2010, and the second one [a few weeks later]. [I] was admitted to the hospital for [a number of] weeks. It took me one year to recover. I did not fully recover since I was always having difficulty [with specific tasks] and walking. It has affected me emotionally and psychologically. I was lucky enough to survive the ordeal.

    In 2011, I was back in the village. I was still recovering from [the medical condition]. In December 2013, the political parties were campaigning in the village. I was helping the SODELPA Party but was strongly against the Fiji First party. Again I was reported by some of the villagers that I was conducting several meetings in my house and have been very vocal. In January 2014, I was again reported by my [relatives] and at night two soldiers came looking for me. They were looking for [me under my alias]. Luckily I had already left for [City 1] and also my name on my birth certificate is [applicant name] and not [my alias].

    In [City 1], I met an Australian friend [name withheld by the Tribunal], and was able to sponsor me and my wife to come to Australia. We then applied for our visa. We were very fortunate to be granted a visa and [in] March, 2014 we left for Australia.

    Our children and grandchildren are still in Fiji. Everyday we worry about them. We have really missed them a lot and it has also affected us emotionally and psychologically. At nights I only have a few hours sleep, thinking of them and what I had gone through and also our situation at the moment, At times, the thought of committing suicide comes to me due to worry. I worry a lot about my children, my grandchildren and ourselves.

    [Q39 – What do you fear may happen to you if you go back to that country?]

    I have already experienced this and since I have always been vocal, voicing my views and opinions against Bainimarama, his regime will definitely arrest me.

    [Q40 – Who do you think may harm/mistreat you if you go back?]

    Bainimarama’s ‘hit squad’ who goes around at midnight to arrest and torture anyone who opposes them.

    [Q41 – Why do you think this will happen to you if you go back?]

    Because I have no faith in the illegal regime. The incident has also made me physically constrained. I have a lot of stress and am uncertain about my life.

    [Q42 – Do you think the authorities of that country can and will protect you if you go back? - NO]

    Even though Fiji is a Democratic country, Bainimarama and his illegal regime still dominate and is still in authority. I will always express my views and opinions openly even though there is no freedom of speech and no human rights, so definitely I am in their blacklist.

    *Why didn’t you include this information in your application?

    Most of these [sic] information are confidential and I never shared it with anybody, even my wife. Also when I arrived here, I was uncertain and at times I forget a lot of things. My health conditions has improved dramatically since I arrived in Australia because I have been examined and being treated efficiently by doctors and specialists in various hospitals. I thank you very much for granting me and my wife a Bridging Visa.

    Please note: At this pointing [sic] time, after what I have experienced I’d rather commit suicide than returning to Fiji.

17. As stated above at [6], the applicant provided letters from persons of his acquaintance who claim to have an understanding of his situation and circumstances. Of particular relevance to the applicant’s claims for a protection visa are the individual letters from the applicant’s brother (dated 6 February 2018) and [Official A] of SODELPA [State 1] Branch (dated 15 February 2018).

18. In the former letter, the applicant’s brother made the following statements:

    “I have kindly inform [sic] [the applicant] on phone not to return to Fiji because he is on the black list which they have most wanted person in Fiji due to the fact he had used some abusive words about Bainimarama and his regime and other activities which he took part in against the government of the day. Some of his core friends have been physically abused and taken into task and they are bound not to leave the country until they have served at our correction service back in Fiji. I am a former member of the Fiji military forces in Fiji.”

19. In the letter from [Official A] of SODELPA [State 1] Branch, the gentleman made the following remarks concerning the applicant:

    “… [the applicant] is currently an active and registered member of our organisations with its Chapter here in [State 1]. As such he is very much involved directly with all our political advocacy programs here against the military backed authoritarian Government.

    “[The applicant] is a member of the traditional clan of the Chiefs Herald in his [province]. During the General Election campaigns of 2006, he was directly involved in the political campaigns by virtue of his traditional status and obligations to his Paramount chief who was contesting the Provincial Fijian communal seat at the time. In lieu of this traditional status… [the applicant’s] action was interpreted as directly in support of our SDL party at the time. As such these traditional leaders naturally became enemies of the political leadership who were conducting massive campaign against the elected Government at the time. One major target of these military campaigns was against our very own Chiefly Structures putting traditional leaders like [the applicant] directly in their firing lines.

    “We wish to clarify that most of these traditional based positions do not have access to the political objectives and missions of the Party. Their allegiance to their Chiefs comes first and always remains paramount considerations at all time. It would therefore be incorrect to expect them to be able to have detail knowledge of their Chiefs Party or name. Expecting them to know the policies of the Party would be too much of an expectation. Likewise they do not have detail information about their opposition, in this case Mr Bainimarama and his Party. SODELPA [State 1] conducts political awareness education programs here now where traditional leaders like [the applicant] are getting educated on the details of our Policies etc.”

20. The Tribunal engaged with the applicant’s claims at the hearing on 20 December 2018 at which the applicant gave oral evidence, expanding on and clarifying his written claims.

21. In oral evidence, the applicant confirmed that he first travelled to Australia in October 2003 on a [temporary] visa, returning to Fiji [in] January 2004. The applicant travelled again to Australia in October 2007 on a [temporary], returning to Fiji in January 2008. The applicant arrived most recently in this country [in] March 2014 on a [temporary] visa. The applicant applied for a protection visa on 13 June 2014, some four days prior to the expiry of his substantive visa, and was granted an associated Bridging Visa A (Class WA) (Subclass 010).

22. In oral evidence, the applicant clarified that his fear of returning to Fiji is related principally to his concern that he will be harmed by the Fijian authorities on account of his opposition to the Fiji First Party (FFP) government led by Prime Minister Bainimarama, and his related support for SODELPA, led by the Leader of the Opposition, Major General Rabuka.

23. In oral evidence, the applicant also stated that he wishes to remain in Australia in order to continue receiving medical care for [various medical conditions]. The applicant stated that the level of care he has received in Australia is far higher than what he would expect to receive in Fiji, and he expressed his gratitude to the Australian Government for making this available to him through the Medicare system. The applicant also stated that he has been receiving psychological counselling since September 2018 to address symptoms of an Adjustment Disorder, mood swings, and intemperate and abusive conduct toward his wife, also resident in Australia at this time. The applicant’s various medical and psychological conditions were detailed in the letters provided to the Tribunal by [Clinic 1 and Clinic 2].

24. In oral evidence, the applicant provided an account of the incident in February 2008 in which he claims to have been detained by the Fijian military, and subsequently abused and assaulted on account of his outspoken criticisms of the Bainimarama regime during the course of a “grog session” held in the aftermath of a funeral in [Location 1]. The applicant provided a detailed description of the incident in which he was forced by the soldiers to crawl upon the ground, at which time he was beaten and kicked and verbally abused. The applicant stated that his [Body Part 1] was injured when he sought to defend himself against his alleged assailants, and that he subsequently spent two hours in hospital at which time he was made aware that a bone in his [Body Part 1] had been fractured in the assault. The applicant stated that two soldiers accompanied him to hospital and that after his treatment, he was returned to his village. The applicant affirmed that this incident occurred in February 2008 and not February 2014, as claimed in his further written claims made to Home Affairs in August 2016 (see above at [16]).

1. In further oral evidence, the applicant stated that government officials came to his village at some time in 2010, ostensibly to “check on” people who the authorities suspected of being opposed to the Bainimarama regime.  The applicant affirmed that he had been in [City 1] at that time receiving medical treatment for the [incidents] he suffered in January 2010. In response to questions from the Tribunal, the applicant stated that he experienced no further instances in which he came to the attention of the Fijian authorities on account of his political opinions or for any other reason prior to his departure for Australia in March 2014. The Tribunal notes that the applicant did not affirm or advance any further claims that he had been sought by the authorities in December 2013 or January 2014 (see above at [16]) or at any other time.

2. In response to questions from the Tribunal, the applicant stated that he did not apply for a protection visa on his most recent arrival in Australia in March 2014, as he and his wife needed to first decide what would be the best city or region of Australia in which to live. Having initially arrived in [City 3], the applicant and his wife travelled to [City 4] to stay with the applicant’s brother. Prior to leaving [City 4], the applicant claimed that he received a telephone call from his sister in Fiji who told him that he would be at risk of harm if he returned to his home country on account of his opposition to the FFP government, as expressed over past years. The applicant stated that his sister told him that people opposed to the government had been murdered and that he would be safer in Australia. At this time, the applicant decided to apply for a protection visa, lodging his application some four days prior to the expiry of his substantive visa.

3. In oral evidence, the applicant stated that he did not believe he could live safely in Fiji and that he would be beaten or killed by the Fijian authorities on account of his political opinion. The applicant stated that his son called him in December 2018 and told him that he would not be safe in Fiji; similarly, his brother had informed him that his name was on a ‘black list’ of political opponents maintained by the authorities. The applicant stated also that he feared for his physical and mental health if returned to Fiji, as he would not have access to the high standard of medical and psychological care he has received in Australia since 2014.

4. At the conclusion of the hearing, the Tribunal provided the applicant with the opportunity to comment on information from DFAT regarding the current political situation in Fiji (see below at [38], and to make any further submissions and/or provide any additional information relevant to his claims, within 22 days (i.e. by 11 January 2019).

5. On 9 January 2019, the applicant provided the Tribunal with a brief written submission and additional publicly available information regarding the current political situation in Fiji. This information has also been considered in the making of this decision.

   Credibility

6. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear; that the fear is “well-founded”; or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. 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, 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. 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 169-170.)

7. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

8. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).

   Findings

9. The applicant provided a credible account of the incident in February 2008 in which he claims to have been detained by members of the Fijian military, and subsequently abused and assaulted. The applicant provided a detailed description of the circumstances in which he was forced by the soldiers to crawl upon the ground whereupon he was beaten, kicked and verbally abused, and had his [Body Part 1] subsequently broken when he sought to defend himself against his assailants. The Tribunal therefore accepts that the above incident occurred and that the applicant experienced violence perpetrated against him by military officers in Fiji in February 2008.

10. However, the Tribunal reasons that the applicant has made no credible claim to have experienced any other incidents of harm or violence or the threat of same by military officers or by any other persons between the alleged incident in February 2008 and his departure from Fiji in March 2014. The Tribunal reasons that the letter provided by the applicant’s brother (dated 6 February 2018) stating that he continues to be of interest to the Fijian authorities on account of his stated opposition to the government, provides no detail regarding the alleged “blacklist” on which the applicant appears, and has been provided solely for the purposes of enhancing the applicant’s claims. The Tribunal reasons also that the applicant’s oral evidence in which he stated that his son contacted him in December 2018 to advise that he did not believe the applicant would be safe if he returned to Fiji, contains no credible detail regarding the alleged threats to the applicant’s safety, and that the alleged call was made solely for the purposes of enhancing the applicant’s claims. The Tribunal reasons also the applicant’s written claim (see above at [16]) to have been of interest to the authorities in December 2013 and January 2014 is inconsistent with his oral evidence that he did not experience any incidents of violence or assault or the threat of same by military officers or by any other persons between the incident in February 2008 and his departure from Fiji in March 2014.

11. In considering these written and relayed statements, the Tribunal reasons that this evidence was provided to or by the applicant in support of his protection visa application, and has not been corroborated by any other evidence from any parties outside the applicant’s immediate family. The Tribunal therefore finds that the evidence provided to suggest that the applicant is of extant or continuing interest to the Fijian authorities is not credible. On the basis of the evidence before it, the Tribunal therefore gives the applicant’s claim to fear harm from the Fijian authorities on the basis of his political opinion little weight in determining whether he is likely to face harm should he return to his home country.

12. The Tribunal notes also that the applicant did not apply for a protection visa until 13 June 2014, some four days prior to the expiry of his substantive Visitor visa. The Tribunal notes also that the applicant stated that he did not apply for a protection visa initially as he and his wife wanted to determine where in Australia they preferred to reside before taking appropriate steps to seek a migration outcome in this country. The applicant also stated on more than one occasion that a significant reason for his determination to remain in Australia was to receive a high standard of medical and psychological care for his various and significant health issues. The applicant also stated that his sister contacted him in the period prior to lodgement of his application to say that he would be at risk of harm if he returned to Fiji, and that other persons had been murdered on account of their opposition to the government. The Tribunal has considered this alleged and relayed statement by the applicant’s sister, and reasons that it is inconsistent with the applicant’s own evidence that he did not experience any incidents of violence or assault or the threat of same by military officers or by any other persons between the incident in February 2008 and his departure from Fiji in March 2014. The Tribunal therefore gives this evidence (i.e. the purported telephone call from the applicant’s sister) little weight, and reasons that the various other factors detailed above compound to suggest that the applicant’s motivation in lodging a protection visa application was to achieve a migration outcome, and was not driven by an intention or requirement to seek protection from persecution in Fiji. The Tribunal therefore finds that the applicant’s motivation for lodging an application for a protection visa on 13 June 2016 was to seek a migration outcome that might enable him to remain in this country.

13. The applicant claims that he is a member of SODELPA and that he has been active supporter of the party in Fiji and in Australia. The Tribunal notes that the applicant has provided the Tribunal with a letter of support from the [State 1] Chapter of SODELPA confirming his membership of the organisation and outlining the applicant’s purported role in the organisation in Fiji and Australia. On the information before it, the Tribunal accepts that the applicant is a member of the [State 1] Chapter of SODELPA. The Tribunal also notes that [Official A] of this organisation states that persons such as the applicant are likely to be considered as opposed to the FFP on account of their political affiliation.

14. However, the Tribunal notes also [Official A’s] further statement indicating that persons such as the applicant (i.e. registered members) cannot be expected to possess any detailed knowledge of SODELPA’s policies or organisational structure. The Tribunal notes also [Official A’s] comment that registered members such as the applicant cannot be expected to possess any detailed knowledge of the policies and practices of the FFP government to which SODELPA is opposed. When considered together with the applicant’s oral evidence regarding his minimal involvement in Fijian politics, the Tribunal reasons that the applicant is not an active or high profile member of SODELPA. The Tribunal is therefore not satisfied on the information before it that the applicant has played an active or significant role in the SODELPA organisation in Fiji or Australia. The letter of support from [Official A] of the [State 1] Chapter provides no evidence of the applicant’s role with the organisation since 2006, and indeed suggests that the applicant and other registered members may have little knowledge of Fijian political issues. The Tribunal also notes that country information provided by DFAT states:

    “Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.” [DFAT Country Information Report: Fiji, 27 September 2017, at 3.46, p.17)

15. The applicant has provided credible evidence regarding the instance in February 2008 in which his expression of his political opinion brought him to the adverse attention of members of the Fijian military. However, on the evidence before it, the Tribunal is not satisfied that the applicant would be of interest to the authorities in Fiji on the basis of his membership of the [State 1] Chapter of SODELPA or that he faces a real risk of harm on the basis of his political activities and opinions should he return to Fiji. On the basis of the evidence, the Tribunal therefore gives the applicant’s claims to fear harm from the Fijian authorities on the basis of his membership of SODELPA and/or his political opinion little weight in determining whether he is likely to face harm should he return to Fiji.

    Does the applicant have a well-founded fear of persecution if she returns to Fiji?

16. On the basis of the limited information before it, the Tribunal finds no credible evidence indicating any extant or ongoing adverse interest in the applicant demonstrated by the Fijian authorities or by any other persons on account of his political opinion. On the basis of the evidence before it, the Tribunal finds that the applicant would not face serious harm amounting to persecution should he return to Fiji now or in the reasonably foreseeable future. On consideration of the above findings, the Tribunal finds that the applicant does not have a well-founded fear of persecution should he return to Fiji. The Tribunal therefore finds that the applicant is not a refugee.

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

18. 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). This requires the Tribunal to consider whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm.

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

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

20. As detailed above, the Tribunal has found on the basis of the evidence before it that the applicant’s claims to be of extant and ongoing interest to the authorities in Fiji on account of his political opinion are not credible. The Tribunal has found that there is no real chance that the applicant will be harmed by the Fijian authorities or by any other persons now or in the reasonably foreseeable future. It follows, based on the above reasons and findings, that the Tribunal does not accept there is a real risk the applicant will suffer significant harm from any person for any reason or for any other reason evident on the claims or material as a necessary and foreseeable consequence of being removed from Australia to Fiji.

    Conclusion

21. 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).

22. 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

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

    Shane Lucas
    Member