1614785 (Refugee)

1614785 (Refugee) [2017] AATA 987 (2 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614785
COUNTRY OF REFERENCE:                  Fiji
MEMBER:B. Mericourt
DATE:2 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 02 May 2017 at 11:03am

CATCHWORDS
Refugee – Protection visa – Fiji – Federal Circuit Court remittal – Race – Indo-Fijian – Harassment and threats by military – Founder of charitable organisation – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R(2), 424AA, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa [in] February 2014 and the delegate for the Minister of Immigration refused to grant the visa [in] October 2014.
On 15 June 2016 the Tribunal (differently constituted) affirmed the Department’s decision.
The applicant lodged an appeal with the Federal Circuit Court (FCC) and [in] September 2016 the FCC remitted the matter by consent on the basis that the Tribunal had not considered the applicant’s sur place claim that he would be subjected to harm by Fijian authorities on return to Fiji because of the publication of a newspaper article in Australia about his and his wife’s circumstances and because the Fijian authorities monitor media outside of Fiji.
The applicant appeared before the current Tribunal on 14 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages. The applicant was represented in relation to the review by his registered migration agent.
The Tribunal explained the reasons for the remittal and reconsideration and indicated that evidence given to the previous Tribunal could be taken into account in the review. The Tribunal took further evidence from the applicant about his claims and his current circumstances.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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, 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.
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).
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.
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 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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.
Non-disclosure certificates
The Department’s file contains non-disclosure certificates issued pursuant to s.438(1)(a) & (b) of the Act.
The documents covered by s.438(1)(a) include an identification checklist, a receipt for interpreter services, two notes requesting correspondence be attached to the file, two disclosure decision checklists, and a notification regarding the disclosure of certain information under s.438 of the Act.
These documents are not relevant to the matters to be determined by the Tribunal. The Tribunal considers that these documents are not covered by public interest immunity and thus the certificate is not a valid certificate.
As these documents are not relevant the Tribunal has not taken any action to make the applicant aware of the certificate in respect of these particular documents.
The documents covered by s.438(1)(b) are relevant to the matters to be determined by the Tribunal. The Tribunal considers that these documents are covered by public interest immunity and the certificate is valid. The Tribunal put the gist of the information to the applicant pursuant to s.424AA at the hearing for his comment. His comments and responses are outlined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
On the basis of the applicant’s Fijian passport provided to the Department, the Tribunal finds that the applicant is a citizen of the Republic of Fiji. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Fiji. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Fiji, the Tribunal also finds that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
Background
The applicant was born in [year] in Fiji. He is of Indian ethnicity and stated his religion is Christianity. He is married and has two children who both live in [Country 1]. He completed high school and has various trade qualifications. He provided details of past employment from [year range] as [occupations], and stated that since 2000 he has engaged in volunteer work with [an organisation].
[In] July 2013 the applicant was granted a [temporary] [visa] and he entered Australia [in] August 2013. He departed Australia [in] October 2013 before his visa ceased. [In] December 2013 the applicant was granted a further [temporary] [visa] and he entered Australia [in] December 2013. He lodged an application for protection [in] February 2014. His wife was included as a secondary applicant in the application.
In his written statement dated [in] February 2014 the applicant stated that he was beaten by military officers [in] December 2013. They targeted him to surrender his position as the [official] for [Organisation 1]. He founded the organisation in 2011 and worked full-time on a voluntary basis while he was supported by his [child]. In late 2011 and early 2012 he started to receive telephone calls from men who said they were military officers at the local Army base demanding they deliver a [product] for a group of [military] officers to the base once a week . They also demanded the applicant give them $[amount] Fijian each week. He refused to do so as the organisation did not have much money and it is illegal. They threatened him with harm. The phone calls became more frequent and threats more violent in 2013.
The applicant lodged an application for a [temporary] visa in November 2013 which was granted [in] December 2013. The applicant claimed that on [a date in] December 2013 two military officers came to his home. They kicked him multiple times [and] punched [him].They threatened to come back and harm him more seriously and demanded to know where his wife was. He and his wife reported the incident to the police. He attended a doctor for his injuries and provided the police with a doctor’s report but he does not expect them to take any action as he believes the police and the military are the same. He fears returning to Fiji as he believed the military officers are still looking for him while he has been in Australia and that they would harm him if he returned. He could not seek protection from the relevant authorities in Fiji because it was the government itself who was his persecutor.
The applicant was interviewed by a delegate of the Department [in] June 2014 and the delegate made the decision to not grant the visa [in] October 2014.
The applicant lodged an application for review of the Department’s decision with the Tribunal and he appeared before the Tribunal (differently constituted) on 9 February 2016 to give evidence and present arguments.
The applicant’s wife lodged a separate application for review of the Department’s decision with the Tribunal.
On 11 February 2016 the Tribunal wrote to the applicant under s.424A of the Migration Act and invited him to provide his comments or responses in writing to adverse information which, if relied on, subject to his comments or responses, would form the reason or part of the reason for it affirming the decision under review.
On 14 March 2016 the Tribunal received a response from the applicant.
In its decision of 15 June 2016 the previous Tribunal stated that it had concerns about the credibility and truthfulness of the applicant’s claims and evidence and rejected his claims on this basis. As a consequence of its rejection of his claims regarding his past experiences in Fiji, the Tribunal was not satisfied the applicant faces a real chance or a real risk of suffering serious or significant harm if he returns to Fiji in the reasonably foreseeable future.
In summary, the previous Tribunal rejected the applicant’s claims related to his involvement in [Organisation 1], his claims of harassment and threats by military officers and his claim arising from publication of an article about his wife in an Australian local newspaper. The previous Tribunal found that the applicant had not experienced any past harm in Fiji at the hands of the military and, having considered his claims individually and on a cumulative basis, the Tribunal was not satisfied that there is a real chance the applicant will face persecution from military officers for any Convention reason. The previous Tribunal was also not satisfied that there is any substantial basis to believe the military would harm the applicant now or in the reasonably foreseeable future.
The applicant lodged an appeal with the Federal Circuit Court (FCC) of Australia and [in] September 2016 the court remitted the matter with the consent of the Minister for Immigration and Border Protection. The court noted by consent that the decision of the Tribunal “is affected by jurisdictional error. Specifically, (the Tribunal) failed to consider the applicant’s sur place claim that he would be subjected to harm by Fijian authorities [concerning the Australian newspaper article]”.
On 6 December 2016, prior to the hearing, the applicant provided a submission to the Tribunal which stated that:
·since December 2015 his relationship with his wife had deteriorated and they are separated and living apart;
·since the publication of his wife’s interview he fears that he will be subjected to serious persecution in Fiji if he returns. He recently talked with [a person] who is living on his property as a caretaker. He informed him that two people came and asked for him. They did not disclose their identities. They asked about him in very harsh tones which made [this person] very uncomfortable;
·the applicant knows ‘for sure’ these people are from the Army and they will continue to look for him. After the publication of the interview it is very likely they will have got the information and will punish him for applying for asylum in Australia. He believes that the Fijian army tirelessly monitors all publications in Australia. In these circumstances he cannot return to Fiji.
Tribunal hearing on 14 December 2016
The Tribunal asked the applicant if he wished to correct or clarify anything in his evidence that he had provided to the previous Tribunal as recorded in the previous Tribunal’s decision. The Tribunal granted an adjournment so the applicant and his representative could review the evidence recorded in the previous Tribunal decision.
After the adjournment the applicant stated that he believed the Tribunal’s record of his evidence is accurate and he did not wish to correct anything or add anything.
The Tribunal put to the applicant the reasons for the FCC remittal of the previous Tribunal’s decision and asked him about his written submission made to the Tribunal on 6 December 2016 (see paragraphs 30 & 31 above). The Tribunal asked the applicant what the two people asked [the person]. He said that they came about early November 2016 and asked when he would return and for the applicant’s contact number.
The Tribunal asked the applicant how he knew “for sure” they were from the army. He thinks only the military would ask these questions because they were “rough”. When the Tribunal asked for clarification he said the neighbour reported they were demanding and arrogant.
The Tribunal asked the applicant if he thought they could be the police. He said he didn’t think so. The Tribunal asked the applicant whether he was aware of any other investigation relating to him in Fiji. He said he is not aware of any other investigations about him in Fiji. The Tribunal put to him that it had information that there was another investigation about him undertaken by the police, although it may be possible he does not know about it. He reiterated that he was unaware of any other investigation.
The Tribunal asked how he thinks the military would know about the article published over [number of] years ago in a local paper ([named]). The applicant thought that members of the Fijian community would have sent articles back to Fiji. He is concerned in particular that people in Australia could have sent the article to contacts they have in the military. He also thought that the Fijian media monitors the Australian media and may have found it, because his wife is well known and her picture and name were in the article. The Tribunal put to the applicant that the article headline “[headline]” made no reference to him or his wife or their claims. Furthermore, the Tribunal had been unable to find the article on the internet using a combination of words such as Fiji and military and refugee or the applicant’s wife’s name and could only find the article when it searched using the journalist’s name. This suggested that it was an extremely remote possibility that anyone, including the military or the Fijian media, searching for material related to protection claims made by Fijian citizens would find this particular article.
The Tribunal asked him if he had any evidence that the article had been printed or circulated or referred to in Fiji. The applicant said that the journalist did not tell his wife they were going to publish the article and they only found out after someone rang them and told them. Therefore he assumes someone either found it or had it sent to them in Fiji.
The applicant believes that the military will search for him if he returns and bad things will happen to him as a result, as that is the way people like him are treated. The military will think he is responsible for having the article published.
The Tribunal asked the applicant if he was still separated from his wife. He said that although he was separated at the moment because his AVO is still current they would meet together with a lawyer after his AVO is finished in January 2017 and get back together. He has not been in contact with his wife but their children have been talking with both of them so he knows they will meet and have agreed to get back together again.
The Tribunal asked whether he was aware of the outcome of her application for review with the Tribunal (differently constituted). He said he did not know that she had a separate review or the outcome of that review. The Tribunal advised the applicant that his wife had stated to the previous Tribunal that he was aware of the information she was providing to that Tribunal when it advised her that any information she gave at that hearing could be put to him if it was considered relevant. Part of her claim was based on fear of his violence. The applicant said that she gets angry and makes things up. The Tribunal put to him that he himself had informed the Tribunal that he currently had a final AVO in place against him which did not cease until January 2017.
Pursuant to s.424AA of the Act, the Tribunal put to him that at her Tribunal hearing, his wife had retracted her claims about the military beating the applicant in that she said she had not witnessed any incident involving the military and it was only what he had said had happened and she did not believe him. The Tribunal advised the applicant of his rights to an adjournment to consult with his representative and his right to comment or respond in writing. He requested a 5 minute adjournment after which he requested that he respond in writing. The Tribunal granted him seven days in which to respond or comment to 21 December 2016.
On 19 December 2016 the applicant’s authorised migration representative requested an extension of time to provide comments or responses following “the new information available regarding the AVO against our client…... “We have information that the wife (AVO applicant) does not fear for her safety from our client since she has been repeatedly contacting our client with abusive messages with the sole purpose of provoking our client.” He requested an extension of time until 18 January 2017 (after the AVO had ceased).
On 20 December 2016 the Tribunal responded stating “there is no new information about a AVO as the applicant gave evidence to the Tribunal himself that there is a current AVO against him which ceases in January 2017. The applicant was not asked by the Tribunal to comment on the information that there is an AVO under s.424AA of the Act. The Tribunal therefore does not consider that the applicant’s comments or responses require further preparation and has some concerns that the applicant requires an extension of time until after the AVO period ceases. Therefore an extension of time will only be granted to COB 23 December 2016. The Tribunal considers that a period of nine days is sufficient time in which to provide his comments or responses”.

On 22 December 2016 the applicant’s authorised migration representative provided the following material:
·a statement from the applicant that he had a problem with the military and always told his wife. However, she was neither present at the [location] when the first altercation took place nor when he was physically attacked and hurt [in] December 2016. The applicant described the history of his relationship with his wife, what had happened since their arrival in Australia in respect of their relationship and claimed that she did not fear any harm from him and since the AVO she has constantly been sending him abusive messages. If she feared harm from him she would not contact him or call him names in her messages. He stated that “it is understandable that she is intentionally creating the situation to gain mileage for her protection claim”. The applicant believes that the AVO was “taken with malicious intention and with the sole motive to file her own claim of protection while retracting from my claim in which I am the main applicant and the only witness of the unfortunate altercation with the military people. The Tribunal should consider the retraction claim of my estranged spouse in the light of this information.” The applicant stressed the possibility of the information in the published (newspaper) article getting into military hands is real and feared he would be subject to inhumane treatment and torture upon returning to Fiji.
·A copy of a Provisional Order - Apprehended Domestic Violence Order naming the protected person as the applicant’s wife and the defendant as the applicant and ordering him to attend the local Court [in] January 2016. The order outlined the grounds for the application. Mandatory orders were made at [a] local Court [in] January 2016 for a period of one year. Further documents indicate that the applicant breached the order in July 2016.
·Copies of [social media] communications dated July, October and December 2016 with the name [name] at the top of the pages. The communications do not appear to have any relevance to the applicant’s protection claims.
FINDINGS AND DECISION
Nationality
On the basis of the applicant’s passport provided to the Department, the Tribunal finds that the applicant is a citizen of Fiji. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Fiji. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Fiji, the Tribunal also finds that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, 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 made out (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.)
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
In this matter the Tribunal has significant concerns as to the credibility of the applicant’s claims to have experienced past harm in Fiji from the military or for the reasons he has claimed. These concerns arise because of the Tribunal’s assessment that the applicant’s evidence has changed over the course of these proceedings and are discussed further below.
Claims
The applicant has stated that he fears harm from the military for two reasons. The first reason is that he was targeted as [an official] of [Organisation 1] in Fiji by members of the military seeking free [products] and money, who threatened him with serious or significant harm when he refused to comply. He also believes that they wanted him to surrender his position and replace him with someone else who was an indigenous Fijian. The second reason is that he will be targeted by the military on his return as the result of a publication of an article in [a newspaper] in Australia [in] May 2014 in which his wife was named and there was reference to she and the visa applicant being subjected to intimidation and death threats (in which the perpetrators were not identified) and having ‘problems with the military’. The visa applicant claims the military will be aware of this article and seek revenge on him if he returns to Fiji. The visa applicant has claimed that he was persecuted in Fiji in the past or will be in the future in part for reasons of his race.
The Tribunal accepts that the harm the applicant fears is serious having regard to the examples provided in s.91R(2) of the Act.
The applicant claimed that the members of the military wanted to replace him as [official] of [Organisation 1] as he is an Indo-Fijian and they wanted an indigenous Fijian as [this official]. At the time he left Fiji he was fearful of persecution in part because of his race. He also thought that the police do not act to protect Indians who make complaints against the military.
The Tribunal considers the applicant’s claims to have been harmed by the military on two occasions before his departure from Fiji to lack credibility, particularly given his estranged wife gave evidence to the Tribunal (differently constituted) that she never saw the incidents and does not now think they occurred. The applicant has responded to this information stating that he agreed his estranged wife did not witness the incidents and she is now making malicious statements as a result of their current dispute. Given both the applicant and his wife agree that she did not witness the incidents the Tribunal considered the applicant’s claims as he put them to the Department, the previous Tribunal and this Tribunal.
The Tribunal accepts the following as the issues are either undisputed or supported by independent evidence;
·There is an organisation in Fiji called [Organisation 1]. It is a Christian Organisation and its [web]site indicates it is a “[deleted].”
·An organisation called [Organisation 1 name variant] was incorporated under the Charitable Trusts Act [in] 2012 and registered with the Inland Revenue Services [in] 2012 in Fiji. The PO Box number is [number]. At the time of the previous Tribunal hearing this was the same PO box number on their website and the pastor of the organisation was [name] who is also the leader of [Organisation 2] in [Town 1];
·The PO Box numbers used by the applicant on correspondence he provided to the Tribunal which he signed as [official] of the [Organisation 1] are different from the PO Box number on the letter from the Inland Revenue Services (above) and the website address provided on correspondence is different from the current website address;
·There is no independent information about the identity of the [specified official positions] of either the [Organisation 1] (to which the applicant referred in his written application for protection);
·At the time of the previous Tribunal hearing the applicant was unaware of other [similar] organisations in Fiji and initially claimed this was because there were no other organisations when he started and then, in response to the previous Tribunal putting to him evidence of a long-standing organisations called [name] and [Organisation 2], the latter of which is also based in [Town 1] under the title [variation of Organisation 2 name], he said he had never done any research when he started so was unaware of any other organisations. In his written response dated 6 March 2016 he claimed that not all organisations were valid registered organisations or well-organised. In the case of [Organisation 2] they seem to have valid registration now and this might have happened after he left and in addition, they are in a different city. The information on the [Organisation 2] website indicates they have been registered since at least 2000, they are located in [Town 1] which is where the applicant’s organisation is also located and they are very well organised;
·The applicant [had] no history of working with members of [this] community prior to the time he claimed that he started the [Organisation 1]. The applicant claims to have initiated the organisation because he was “interested” and [people with this disability] had no support, particularly in that area of Fiji.
The previous Tribunal raised its concerns with the applicant about the credibility of his claim to be the [official] of the [Organisation 1] based on inconsistencies in his evidence and information from the organisation’s website.
Although the Tribunal has very serious concerns about the credibility of the applicant’s claims that he founded and was the [official] of an organisation for [people with certain disabilities] in Western Fiji, the Tribunal is prepared to accept that the applicant worked as a volunteer for an organisation variously called [Organisation 1] in 2012 and 2013 prior to his departure from Fiji.
Claims relating to harassment, threats and assaults by the military
The applicant claims that he was harassed and threatened from July 2011 by members of the military who approached him at a fundraising [stall] demanding he provide free [products] and pay money to the military. He continued to receive threatening phone-calls and demands for money until he departed Fiji. He believes that he was intimidated and threatened because the army wished to launder money through the organisation by replacing him with an indigenous Fijian person.
The applicant also claims to have been assaulted on two occasions, the first in July 2012 and second [in] December 2013. The applicant stated that in July 2012 he was approached by a person in plain clothes at a shopping mall who punched him in the face and told him not to report the incident to the police. He did not report the incident and did not seek medical attention. He believed that the person was a member of the military. The previous Tribunal put to the applicant its concerns that his description of this incident was different at the Tribunal hearing to the description he had provided to the Department in which he said that he had been receiving phone calls roughly once a week from people who said they were officers from the local Army base demanding a [product] for [a number of] officers once a week and Fiji$[amount] and the person in the shopping mall had told him he was from the military and asked why he was not agreeing to their demands. The applicant said that he was forgetting things as the situation with his wife (they had recently separated) was on his mind.
The applicant travelled to Australia in August 2013 for a holiday with his wife. They stayed for two months and returned to Fiji in October 2013. He stated he had no fears about returning to Fiji at that time as, although he had been receiving threatening calls, he believed they would cease.
The applicant lodged a claim for a [temporary] visa in November 2013 and this visa was granted [in] December 2013. The applicant claimed that he was assaulted in his home [in] December 2013 by two members of the military. His wife was not home at the time. He sought medical treatment and provided the Department with a police report which states that he reported he was assaulted by two members of the military. He was examined by a Medical Officer and there were no specific injuries noted. He was given pain [relief]. The applicant departed Fiji two days later.
The Tribunal had regard to the fact that the fundraising stall was conducted seven months before the organisation was formally registered as a charitable Organisation and registered with the Fiji Inland Revenue Services. Whilst the Tribunal is prepared to accept that the applicant may have been fundraising in order to establish such an organisation, it seems unlikely that the military would have been asking for regular payments and [products] from an organisation that did not yet exist at that point in time. The organisation’s website seems to indicate that they had very occasional fundraising events on a small scale.
The Tribunal had regard to the fact that the applicant had made arrangements to return to Australia, applied for his visa, purchased a flight and arranged for a caretaker for his home prior to the alleged assault [in] December 2013. The applicant confirmed that the evidence he provided to both the Department and previous Tribunal was that he was “beaten up” including being kicked, punched and hit with a belt by his assailants. The Tribunal accepts that the applicant reported an assault to the police [in] December 2013 in the evening, that his wife was not present when the assault occurred, and a medical examination on the evening of the assault stated he had no specific injuries and was given some pain relief for [tenderness].
Based on the above evidence, the Tribunal finds it difficult to accept that, if the military was demanding the applicant pay money to them and provide [products] for them over a period of 18 months during which he refused to comply with their demands, that they would then appear at his home and assault him just two days prior to his planned departure from Fiji. The Tribunal also finds that the medical report does not explicitly find that the applicant was beaten as there is no indication of bruising, cuts or any specific injuries other than “[details deleted]”.
Even if the Tribunal did accept the applicant’s accounts of being assaulted on two occasions by the military for the reasons he described, the Tribunal had regard for the fact that the applicant has not had any association with [Organisation 1] since his departure from Fiji and it appears that an indigenous Fijian person is now the [specified official] of this organisation. The Tribunal considers that the applicant would be of no adverse interest at all to the military as a result of his claimed previous role in the organisation or as a result of his previous refusal to comply with demands made by the military to pay money to them.
The Tribunal does not accept the applicant’s suggestion that when people in plain clothes recently came to his house looking for him, that these people were the military because they were arrogant and rough. The Tribunal does not consider that the military would be looking for the applicant three years after his departure for any of the reasons suggested by the applicant or for any other reason. The information before the Tribunal about a possible investigation relating to the applicant suggests that the investigation is related to a personal family matter. It does not involve the military and there is no suggestion that the possible investigation has anything to do with the applicant’s claimed role in the [Organisation 1] or anything to do with the publication of an article in an Australian newspaper (see below).
Claims related to the publication of an article in [a newspaper in] May 2014
The Tribunal accepts that an article was published in [a newspaper] [in] May 2014 titled “[headline]”. The article names the applicant’s wife and states she “[details deleted].” The rest of the article is about [a different topic].
Based on the difficulties the Tribunal had finding the article using the internet, and the fact that the Tribunal has found that the applicant was that no adverse interest to the authorities prior to his departure from Fiji, the Tribunal is not satisfied that the authorities in Fiji would have seen the article themselves unless somebody provided them with the article.
The Tribunal accepts that it is possible a member of the Fijian community in Australia could have provided a member of the military in Fiji with a copy of the article.
The Tribunal had regard to the fact that the article does not explicitly state that he and his wife were subjected to intimidation and death threats by the military. The Tribunal also had regard to the fact that the article suggests that the applicant and his wife “had [details of work with people of this disability]” when in fact the applicant’s evidence is that they had only been involved with [this] community for a period of roughly 2½ years prior to their departure. The Tribunal considers that they provided information to the journalist which was somewhat self-serving.
Even if the Tribunal accepts that the military saw the article at about the time that it was published almost 3 years ago, or even six months later, the Tribunal considers there is so little information in the article that would bring them to the adverse attention of the authorities that the possibility that they would suffer serious or significant harm on their return to Fiji is extremely remote.
The Department of Foreign Affairs and Trade (DFAT) in its Fiji Country Report of April 2015 states:
3.20 As of 2014, the treatment of Indo-Fijians by indigenous Fijian communities varies. A range of Indo-Fijians said that treatment had improved in recent years and that there had been a reduction in (reported) crime, including a reduction in theft, robbery, assault, burglary and desecration of temples. A range of contacts said that robberies of Indo-Fijian taxi drivers were frequent, but that these were not necessarily racially based: the majority of taxi drivers in Fiji are Indo-Fijian, and taxi-drivers are a vulnerable, accessible target. More broadly, most contacts assessed robberies to be motivated by income disparity, rather than race or ethnicity per se. Indo-Fijians are sometimes perceived to be wealthier than indigenous Fijians and are therefore more likely to be targeted for economic reasons.
3.21 State protection for Indo-Fijians is generally assessed to be only partially effective. However, this is because of poor police capacity and there is not a significant disparity between the quality of state protection provided to Indo-Fijians and to indigenous Fijians. Indo-Fijian groups assessed the police to be under-resourced and unresponsive, while the military (despite its overwhelmingly indigenous Fijian make-up) was assessed to be effective and responsive.
3.22 Overall, DFAT assesses that Indo-Fijians face a low level of societal discrimination on the basis of their race/nationality.[1]
………
3.80 Overall, DFAT assesses that members of NGOs and human rights activists in Fiji, who are outspoken in their opposition to the government, or who engage in public protests critical of the government, are at a moderate risk of monitoring and harassment by the military and of harassment through the court system.[2]
4.10 Other allegations have been made of military brutality. For example, in 2011 military officers allegedly broke three fingers on the hand of a 12 year old boy, as punishment for graffiti.
…….
4.12 Overall, DFAT assesses that the likelihood of any individual being subject to cruel, inhuman, or degrading treatment or punishment is low. Someone who is seen to have embarrassed the government or security services would have a higher risk profile.[3]
……….
5.15 Overall, DFAT assesses that the military has some ability to protect individuals from harassment, discrimination and violence. There has however been little evidence to suggest the government is able or willing to prevent members of the military who may look to take matters into their own hands in personal or political disputes from doing so.[4]
[1] Department of Foreign Affairs and Trade, DFAT Country Report Fiji 14 April 2015 , p.12
[2] Ibid, p.17
[3] Ibid, p.23
[4] Ibid, p.25

Based on the above country information, the Tribunal accepts that the applicant may have been subjected to low-level social discrimination as an Indo-Fijian but that this does not amount to serious harm (having regard to the examples provided in s.91R(2) of the Act) or significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act).
The Tribunal also accepts that there have been documented instances of military brutality in Fiji, but these incidents are usually related to individuals who have either allegedly committed a crime or who have been identified as political or human rights activists. There is no evidence before the Tribunal that the applicant has either been accused of criminal activity or of political or human rights activism or activities. Although the Tribunal is aware of information that an investigation may be underway, there is no material before the Tribunal that the applicant has been charged or found guilty of any offence. The Tribunal accepts that where the military has taken matters into their own hands in personal or political disputes the government is reluctant to prevent this from occurring. However, the Tribunal does not accept the applicant’s claims that he was assaulted on two occasions by the military for personal reasons and therefore, is not satisfied that the applicant is of any adverse interest to the military if he is returned to Fiji now or in the foreseeable future.
The Tribunal gave consideration to the possibility that the media article identifying the applicant’s wife by name (and the applicant by association) is likely to have embarrassed the government or security services to the extent that would lead to a real risk that they would suffer serious harm or a real chance that they would suffer significant harm. As discussed above, the Tribunal has found that the article was published three years ago in a small [newspaper] and could not easily be found through a search on the Internet, and would likely to have only come to the attention of military authorities if someone had provided them with the article. The Tribunal considers that the two sentences in the article referring to the reasons for the applicant’s claim for protection only indirectly suggest that the military were involved in human rights abuses of the applicant and his wife. As the article was published 2½ to 3 years ago and no further articles have been printed or references made to the military that identify the applicant in any way, the Tribunal considers that the publication of the newspaper article in the [newspaper] in May 2014 has not significantly impacted on the applicant’s risk profile. Consequently, the Tribunal finds that the risk the applicant would be subjected to serious or significant harm as a result of the publication of the article is extremely remote.
The applicant has also claimed that after the publication of the newspaper article the military will punish him for applying for asylum in Australia.
DFAT Country Research Section provided advice in July 2013 that there had been no reports of unsuccessful applicants for protection or people who had been abroad for lengthy periods being subjected to harm unless they are also otherwise high profile regime opponents.[5] The applicant has not claimed to be identified as a high profile regime opponent or to be a high profile regime opponent. Based on his evidence and the DFAT information the Tribunal is satisfied that there is no real risk that the applicant will suffer serious harm and there is no real chance that the applicant will suffer significant harm as a result of being an unsuccessful applicant for protection and/or a person who has been abroad for significant period of time.
[5] CX310444: "RRT Country Information Request FJI42283 - Update of CX252255", Australia: Department of Foreign Affairs and Trade (DFAT), 01 July 2013
Having regard to the applicant’s claims both individually and cumulatively, and the above country information Tribunal is not satisfied that the applicant has a well-founded fear of persecution or that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of his previous role in [Organisation 1], any previous threats from the military, the publication of an article in the [newspaper in] May 2014 in which his wife is named, or for any other reason.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
B. Mericourt
Member

[2017] AATA 987

2 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction