1615073 (Refugee)

[2018] AATA 5164

1615073 (Refugee) [2018] AATA 5164 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615073

COUNTRY OF REFERENCE:                  Fiji

MEMBER:James Silva

DATE:15 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2018 at 11:29am

CATCHWORDS
REFUGEE – Protection visa – Fiji – political opinion – member of Fiji Native Government in Exile or PISAI – supporter of Christian State of Nadroga-Navosa and Ra – no response to tribunal communication – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 424, 499

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 early [age] from Fiji.

2. The applicant arrived in Australia [in] January 2016, as the holder of a Temporary [visa]. He applied for a Protection (Class XA) visa on 15 April 2016. On 25 August 2016, the delegate refused the application pursuant to s.65 of the Act.

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

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

   Criteria for a protection visa

5. 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

6. The applicant is [age] year old man from [Town 1], Fiji. On his protection visa application form, he claims to be of Fijian ethnicity, and a speaker of Fijian and English. He states that he attended primary school for [number of] years, until 1999. He wrote that he has never had paid employment before coming to Australia, and that his parents supported him. The application form provides no details of family members.

7. The applicant holds a Fijian passport issued [in] 2015, valid for ten years. He entered Australia [in] January 2016, as the holder of a Temporary [visa]

8. The applicant’s protection claims read:

   [Question 89: Why did you leave [Fiji]?] I am a strong supporter of the 2 Christian breakaway states of Nadroga/Navrosa and Ra, and this is being closely monitored by the Bainimarama regime. Bainimarama warns of severe punishment for sedition. And also, I associate with Ms Oni Kirwin and all those who are involved in Oni Kirwin have been forewarned by Bainimarama of the harm that awaits us if we go back to Fiji.

   [Question 90: What do you think will happen to you if you return to Fiji?] There is military and police brutality happening in Fiji. The torture, rape and brutality continue unabated in Fiji. Death in custody has increased. I fear that this will happen to me if I return to Fiji.

   [Question 93: Did you move, or try to move, to another part of that country(s) to seek safety?] The government of Fiji is over-militarised. My safety is at risk because of my involvement with Oni Kirwin and the recent breakaway of Nadroga-Navosa and Ra, the government in exile.

   [Question 94: Do you think you will be harmed or mistreated if you return to Fiji?]  I am a citizen of the Fiji Native Government in Exile, the breakaway Christian State of Nadroga-Navosa and Ra. I fear that I will be crushed by the Bainimarama Government because I am a follower of Oni Kirwin and also a member of Pacific Indigenous Samaritan Association Inc.

   [Question 95: Do you think the authorities of Fiji can and will protect you if you go back?] The Bainimarama Government is over-militarised. The police does not have any power to protect me.

   [Question 96: Do you think you would be able to relocate within Fiji?] No source of protection from the police. All ministries in Fiji are controlled by the military.

9. The evidence before the Tribunal includes the following relevant material:

   §  The completed protection visa application form, done with the assistance of Ms Oni (Mereoni) Kirwin. It includes handwritten responses setting out his reasons for claiming protection (see above). Attached to it is the front page only of his Fiji passport.

   §  The applicant attended a Department interview 8 August 2016, a recording of which is on the Department file and which the Tribunal has listened to.

   §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 15 August 2016.

   §  The applicant’s application for review, attached to which was a copy of the delegate’s decision record.

10. Having listened to the recording of the interview, the Tribunal is satisfied that the decision record (which the applicant submitted to the Tribunal with his application for review) accurately reflects his further comments. These are, in summary:

    §  The applicant claimed to be a member of an organisation, the Fiji Native Government in Exile (also: Pacific Indigenous Samaritan Association (PISAI)), which represents a government in exile. He joined the group [in] March 2016, the same day that he had been refused a Visitor visa. He joined the group because of what was happening in Fiji, and also because he had hoped the group could help him after his first visa had expired.

    §  The applicant said that he had no background in politics. He spoke broadly about the group’s objectives and its goal of increasing its membership in Australia. He said that members meet on Thursdays, to improve Fiji and send reports and directions to the opposition SODELPA. He said that he did not know the other participants of the group well, and was not aware of their migration status.

    §  The applicant said that before he joined the group, he was not aware of the difference between the social and political climates in Fiji and Australia. He said that it is not possible to speak out freely in Fiji, as the government does not respect freedom of speech, and the authorities treat people oppressively.

    §  He expressed views that the Fijian race may be subject to genocide; that Christianity may be outlawed in Fiji; and that because he supports the opposition party, the Fiji authorities might target him.

11. The delegate, in the decision under review, accepted that the applicant had joined a Fijian group, but concluded that he was a low level member and had not engaged in any high profile or significant political activity. He considered that ‘the applicant’s political activities and views are trivial and his interest and commitment to political groups in Australia is fleeing and concerned more with perceptions rather than an indication of a true and committed position’. He concluded that the applicant is not of adverse interest to the Fiji authorities, and does not have a well-founded fear of persecution for a s.5J(1) reason or meet the requirements for complementary protection.

12. The applicant provided a copy of the delegate’s decision record with his application for review, but no additional materials or information.

13. On 16 October 2018, the Tribunal wrote to the review applicant pursuant to s.424A and s.424(2) of the Act. The combined letter:

    (a)  Invited his comments on or response to invitation that the Tribunal considered would be part of the reason for affirming the decision under review. The information was that his written claims were identical or near-identical to the statements in at least 21 cases before the Tribunal. The relevance would be, subject to his comments/response, that the Tribunal may infer that the text does not reflect his personal circumstances at all. And the consequence would be that the Tribunal infers that he does not have his own claims for protection; that the Tribunal finds that he does not need protection; and that the Tribunal then affirms the decision to refuse to grant the visa.

    (b)  Invited the applicant to provide updated information about his personal circumstances and his claims for protection. (The questions reflect those set out in the protection visa application form, which he had completed in April 2016.) 

14. The invitation was sent by post to the last address provided in connection with the review and advised that, if the comments or response or the information, or both, by 8 November 2018 (or as extended), the Tribunal may make a decision on the review without taking further steps to obtain his views (comments/responses) on the information or to obtain the information. It also advised that the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

15. The review applicant has not provided the information or comments within the prescribed period, and did not contact the Tribunal to seek an extension. On 29 October 2018, the letter addressed to his authorised recipient was returned to sender marked ‘left address/unknown’ (as the post office box had closed). The Tribunal has tried several times to contact with authorised recipient by telephone, but the number appears to be disconnected. The Tribunal also sent an email to the authorised recipient, with a response to date. A Tribunal officer examined the Tribunal file, Department file and Department electronic records to find further contact options for the review applicant. The mobile telephone numbers associated with him are disconnected, and an email was unable to be successfully transmitted.

16. The Tribunal is satisfied that the combined invitation to the applicant pursuant to s.424A and s.424(2) was correctly issued, and that the information in the letter enlivens s.424A and s.424(2). The applicant failed to comply within the prescribed time to comment on or respond to adverse information or provide additional information, and has therefore lost his entitlement to a hearing: s.424C and 425(2).

17. The Tribunal has carefully considered whether to exercise its discretion under s.425(2) to proceed with making a decision without a hearing. In the circumstances of this case, it notes that the applicant presented protection claims that appear to have been copied from another source (this was the subject of the s.424A letter), and that he had very little additional information to add at the Department interview. It also takes into account that the applicant has had no contact with the Tribunal since the lodgement of his review application on 19 September 2016. Successive letters to him have been returned unclaimed, and the Tribunal’s efforts to find contact details for the applicant and his authorised recipient have not succeeded. The Tribunal has exhausted all contact details listed for the applicant, including addresses, telephone landline and mobile numbers, and email addresses. It has formed the view that there is no realistic prospect of contacting him in the near future.

18. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.

    Consideration of claims and evidence, and findings

19. The Tribunal has before it only the brief statements of claim as set out in the protection visa application form, which do not appear to be the applicant’s own words; and his general statements at the Department interview, which are summarised in the decision record that the applicant submitted to the Tribunal with his review application. These are vague, equivocal and at least two years old (hence, not necessarily a reflection of the applicant’s current thinking or concerns).

20. The Tribunal is prepared to accept, based on the applicant’s statements at the Department interview and their consistency with his written statement, that he attended a group associated with his authorised recipient, Ms Oni (Mereoni) Kirwin - the Fiji Native Government in Exile (also: Pacific Indigenous Samaritan Association (PISAI)); and that he joined for various reasons (including because it might help him obtain residency in Australia, as well as his interest in meeting Fijians who share his views). It is also prepared to accept that he prefers to stay in Australia, in part because he dislikes the Fiji government’s policies and practices, in areas like political rights and freedom of speech.

21. However, the Tribunal is unable to be satisfied that the applicant he was a ‘strong supporter’ of the two Christian breakaway states; that he felt that he was being monitored or otherwise subject to adverse attention in Fiji; or that he has experienced any other harm in that country, such as being personally affected by ‘military and police brutality’, having witnessed this, or that he left Fiji for those or any similar reasons. The Tribunal is also unable to be satisfied as to the applicant’s current attitudes or political beliefs, including the nature or extent of any ongoing involvement in Mr Kirwin’s or any other political groups in Fiji or Australia. It is also unable to be satisfied as to whether he continues to fear returning to Fiji for any reasons linked with a political opinion; any association with Fijian political groups; or for reasons not disclosed in his original application and Department interview.

22. While the applicant may disapprove of some of the Fiji government’s practices, the Tribunal is unable to gauge the current strength of these views, whether the applicant is motivated to act on them, or whether he has any past or current profile, or may engage in future activities, that might bring him to the adverse attention of the Fiji authorities.

    Refugee criterion

23. While the Tribunal accepts that the applicant prefers to remain in Australia, that he had at least some past contact with Fijian groups linked with Ms Oni Kirwin, and that he disapproves of some of the Fiji government’s policies and actions, the available information is limited, untested and dated. The Tribunal is not satisfied on the evidence before it, that he faces a real chance of harm from the Fiji authorities (including the police and military), political figures (such as opponents of the proposed Christian breakaway states) or others. It is therefore not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1) should he return to Fiji.

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

    Complementary protection

25. 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). However, based on the information before the Tribunal, and the assessment of facts above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there would be a real risk that he will suffer significant harm.

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

27. 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

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

    James Silva
    Member

    
    

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

    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.