1616559 (Refugee)

[2018] AATA 440

1616559 (Refugee) [2018] AATA 440 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616559

COUNTRY OF REFERENCE:                  Fiji

MEMBER:K. Chapman

DATE:13 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 13 February 2018 at 5:53pm

CATCHWORDS

Refugee – Protection visa – Fiji – Imputed political opinion – Member of a political party – Vague details of political involvement – Limited knowledge of Fijian politics – Village elder – Extended family military members – Assaulted by members of the military force – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, [who] claims to be a citizen of Fiji, applied for the visa on [date] April 2016. His written claims for protection concern his purported links to the SDL and SODELPHA political parties and being assaulted by the Fijian military for his opposition to the Bainimarama Government. The delegate refused to grant the visa on the basis that there was not a real chance that he would face serious or significant harm if he returned to Fiji.

3. On 7 October 2016, the applicant applied for review of the visa refusal decision, providing a copy of that decision with his application for review. The applicant appeared before the Tribunal on 17 August 2017 to give evidence and present arguments. The Tribunal also took oral evidence from his representative, [Pastor A] (the applicant’s uncle) and his partner, [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. At the hearing the applicant submitted documents in support of his contention that [Ms B] is his partner.  

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

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

11. According to the protection visa application, the applicant claims to be a citizen of Fiji. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Fijian national. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

12. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3).

    Issues

13. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Fiji, there is a real risk he will suffer significant harm.

    Documentary evidence before the Tribunal

14. The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the protection visa application, media articles, identity documents, the Departmental delegate’s visa refusal decision dated  [September] 2016 (a copy of which was provided to the Tribunal by the applicant), and documents concerning the purported relationship between the applicant and [Ms B], are contained in those files. The aforementioned material has been duly considered by the Tribunal.  

    Claims for protection

15. The applicant’s written claims for protection may be summarised as follows. He was purportedly assaulted [in] December 2006 by the Fijian military for opposing them and for his support of the SDL (including former Prime Minister Qarase). He is also a supporter of the SODELPHA political party. Nine military personnel (who are extended relatives) lived in his village, informed upon him, and he was taken again in June 2007 by military personnel who assaulted him. The applicant could not seek help for his injuries because it was too dangerous to do so and his own family nursed him. He travelled to Australia for three months in 2015, returned to Fiji, but the abuse and threats continued so he left Fiji permanently for his own safety. The applicant fears harm if he returns to Fiji and does not trust the military, police or judiciary. He apparently cannot relocate within Fiji to avoid harm.  

    Evidence at the review hearing

16. The applicant’s oral evidence may be summarised as follows. He informed the Tribunal that he received assistance from his uncle, [Pastor A], regarding his protection visa application. The applicant confirmed that he signed the application, understood his claims for protection and that all claims were contained in the application. He explained that he has been in a partner relationship with [Ms B] since 2016. The applicant informed the Tribunal that the documents he submitted at hearing were to demonstrate the veracity of such relationship. He confirmed these documents were not relevant to his claims for protection.

17. The applicant indicated he lived at [Village 1] from birth until 2016 when he came to live in Australia permanently. He worked at [Workplace 1] from 1992 until February 2015 when he reached [age] years and retired. At that age he was entitled to draw from his FFPF account (which he explained is similar to superannuation). He took a lump sum payment. The applicant has two children and a brother living in Fiji. Another brother lives in [Australian City 1], and he has aunts and uncles also living in Australia. The applicant’s family in Fiji still live in [Village 1], with his son also working at [Workplace 1]. His daughter works in a [location]. When asked about their circumstances in Fiji, the applicant advised that life is hard for them in the village because they have many commitments such as to the village, family and church. When asked if there was anything else he wished to say about the circumstances of his family in Fiji, the applicant responded that wages are very limited.

18. The applicant has not been found guilty of any offences, nor is he the subject of any criminal investigation. He obtained his Fijian passport on [date] 2015 in Fiji and had no problems in doing so. The applicant agreed that, as reflected in the Departmental delegate’s decision, he travelled to Australia holding Tourist visas between [date] April 2015 and [date] July 2015, and then made his most recent entry to Australia on [date] March 2016. He travelled by commercial airline, departed legally through the airport using his own passport and experienced no difficulties during these travels. In relation to his first Tourist visa, he agreed it was issued in Fiji on [date] 2015 and he travelled to Australia on [date] April 2015. The applicant advised he had performed [a certain role] in [Australia] after he applied for protection. He wants to be a citizen of Australia.

19. When asked by the Tribunal what he feared if he returned to Fiji, the applicant explained that he is an elder in his village, held meetings there, and in July 2007 was taken to a military camp. He was a member of the SDL political party and the Fijian Government did not permit meetings at that time. The applicant stated that he supported the SDL when Qarase was the leader. He had around nine members of his extended family in the military who observed him holding village meetings. Apparently these personnel informed on him to a military camp. The applicant confirmed to the Tribunal that no political matters were discussed at these meetings, rather they concerned the wellbeing of the village. The nine extended family military members never hurt the applicant. When asked by the Tribunal why the military would be interested in him if he never discussed politics at the meetings, the applicant explained that the military was concerned they were talking about the Government. When asked by the Tribunal if any of his nine extended family military members attended these meetings, the applicant replied that some did and some remained outside. The Tribunal raised with the applicant that it might have some difficulty accepting that he was of adverse interest to the military as some of his extended family who were in the military actually attended the meetings, and yet then apparently informed on him to other military personnel even though no political matters were discussed. The applicant replied that he and the other villagers were unaware that meetings were not permitted at that time. He confirmed that military personnel who were extended family members attended these meetings, whilst some remained outside, yet none informed him the meetings were prohibited.

20. Following further questions by the Tribunal, the applicant advised that although these extended family military members attended the meetings (with some outside and others inside), and no political matters were discussed, these military personnel still thought the villagers were discussing other matters. The Tribunal again raised with the applicant that it might have some difficulty accepting that in the aforementioned circumstances he would be of adverse interest to the Fijian military. He replied that in June 2007 he was holding such a meeting and was forcibly removed by military members and taken to a military camp where he was threatened not to mislead the villagers. When asked by the Tribunal if this was the first time the military threatened or harmed him, the applicant twice confirmed this to be the case.

21. When asked by the Tribunal to describe in further detail his experience of being taken by the military, the applicant explained that in 2006 there was a law made after the coup preventing meetings being held. In 2007 he was holding a meeting and because he was the elder the military took him alone to the military camp. The meeting had started around 8pm and around 10pm to 11pm soldiers came in and took him. The applicant did not know these soldiers and his extended relatives were not at the meeting. He was interrogated at the camp for 45 minutes to 1 hour in a small room. He was threatened not to misinform the villagers and was hit and kicked by the soldiers. The applicant stated he had injuries to his face, back, sides and legs. His face was apparently severely injured. He was released and had to walk home to the village. He did not receive medical care because he was scared to do so and the villagers tended him. The applicant apparently stayed at home for one month but retained his employment as he spoke to his manager.

22. The applicant confirmed to the Tribunal that nobody else harmed him after the 2007 incident. When asked by the Tribunal if anybody else had harmed him or threatened him prior to this incident, the applicant advised that soldiers had only made threatening remarks. The applicant indicated he was taken to [a military camp] during the incident in June 2007. He confirmed again to the Tribunal that this was the only time the military harmed him. When asked by the Tribunal when the first time was that he feared the military might harm him, the applicant replied that he did not fear them until they hurt him in June 2007. He indicated he feared them since that time and still fears them now. When asked by the Tribunal when the last time was that the military threatened him, the applicant confirmed they had not threatened him since that incident. When asked by the Tribunal if his membership of the SDL was mentioned by the military during the incident, the applicant confirmed that it was and he was cursed for being a member. When asked by the Tribunal when he joined the SDL, the applicant replied that it was when Qarase started the party. He could not remember his year of joining initially, then opined that it was ‘maybe’ 1990 or 1995.

23. The Tribunal asked the applicant to outline his political views with respect to Fiji. He indicated he joined the SDL when representatives came to his village in the 1990’s. He signed up but there was no money involved. When asked by the Tribunal what policies of the SDL appealed to him, the applicant indicated they look after the citizens and their welfare. When asked if there was anything else, the applicant replied they did a lot for Fiji. He confirmed he held no official position in the SDL. The Tribunal observed his evidence concerning this matter to be delivered in a vague fashion.

24. The Tribunal referred the applicant to his written claims that he is now a strong supporter of the SODELPHA party under Paramount Chief Ro Teimumu Kep and asked for him to provide further information. He explained that after a coup the SDL became SODELPHA around the year 2000. The applicant thought he joined the party in the village around 2002 or 2003 but he was not sure. When asked by the Tribunal what policies of SODELPHA appealed to him, the applicant indicated they were similar to the SDL and looked after the wellbeing of indigenous Fijians. When asked by the Tribunal his view of the Fiji First Party (which is the party of the Bainimarama Government), the applicant indicated he didn’t really know much about it but noted they were not helping ‘us’. He stated they won the election but the military really runs Fiji. The Tribunal observed his evidence concerning these matters to be delivered in a vague fashion.

25. The Tribunal raised with the applicant that his knowledge of the SDL and SODELPHA appeared to be quite limited and invited his comment. He replied that sometimes only elders came to the village and because he was working he didn’t attend the meetings. He only attended political meetings occasionally because he often worked overtime. The applicant indicated he was able to attend the other village meetings because they were held on a Friday evening. When asked by the Tribunal if he ever protested publicly against the Fijian Government, the applicant indicated he did not because that is not allowed. He confirmed he had never been charged with an offence, or taken to Court, in Fiji. When asked by the Tribunal if he ever faced any other difficulties in Fiji, the applicant advised he did when Fiji First started governing because after 2006 wages became problematic and restrictions were placed upon village meetings.      

26. The applicant again confirmed to the Tribunal that the incident of June 2007, where he was taken to [a military camp] was the only time he was harmed by the Fijian military. The Tribunal raised with the applicant that in his protection visa application he wrote that he was harmed by the military [in] December 2006 and in June 2007, and that the Departmental delegate’s decision indicates he advised at interview he was harmed in December 2006 and July 2007. The Tribunal noted that the applicant advised at the hearing, on several occasions, that an incident in June 2007 was the only time he was harmed by the military. The Tribunal asked the applicant why he had provided different information to the Departmental delegate to that at the review hearing. The applicant replied that he asked for ‘forgiveness’ as the topic brings back memories for him. The Tribunal raised with the applicant that the delegate’s decision indicates he advised in relation to the July 2007 incident he was held overnight. The Tribunal raised to the attention of the applicant that there appeared to be inconsistencies in the information he had provided to the Departmental delegate and to the Tribunal, inviting his comment. The applicant responded that he was a bit confused then remarked, “the truth is I only went once to the camp in 2007”, adding he was confused at the delegate’s interview.

27. The Tribunal raised with the applicant that it might have difficulty accepting his claims for protection given that he indicated he suffered harm in 2006 and 2007 in his information provided to the Department, yet could only recall one incident in June 2007 in his oral evidence before the Tribunal. The applicant responded he wrote that it was after 2006 he was taken to the military camp and was confused on the day he attended the Departmental interview. The Tribunal raised with the applicant that it might have some difficulty accepting his evidence given he cited two incidents of harm to the Department and only one to the Tribunal. The applicant replied that he was fearful and confused before the Departmental delegate. The Tribunal observes that he did not present to it as a person who was fearful or emotional when providing his oral evidence at the hearing. His demeanour was, in fact, quite to the contrary.

1. The Tribunal raised with the applicant that he submitted several media articles to the Department with his protection visa application and invited him to comment upon them. The applicant responded that he submitted them because he came to Australia and was fearful to return to Fiji. He added that when he went back to Fiji from Australia in 2015 he was still threatened at that time. That is why he came back to Australia in 2016 and wants to be a citizen here. The Tribunal outlined the media articles he had provided (which concerned the Fijian police and military control) and asked what their relevance to him was. He replied that the Police Commissioner (Ben Groenewald) from South Africa had resigned and he was replaced by military personnel. The applicant outlined that the military had taken the position and they worked with the police. The Tribunal indicated the articles appeared not to refer to the applicant and might be of limited relevance to his own circumstances, inviting his comment. He replied that he submitted the articles as evidence that Fiji is not governed by the police, but rather by the military. He added that the military can do what they like to him.

2. The Tribunal raised with the applicant country information from the Department of Foreign Affairs and Trade (DFAT), concerning political opinion, suggesting that it is more likely high profile opposition figures might be at some risk rather than those of lower profile, and this did not tend to support his claims for protection.[1] He replied that the opposite is actually true in Fiji, citing the example of the Fijian military searching for members of the Counter Revolutionary Warfare unit (CRW – who were opposed to the Bainimarama Government) and ordinary Fijians being fearful when their villages were searched for them. The Tribunal raised with the applicant country information from DFAT, concerning torture and cruel, inhuman or degrading treatment or punishment. [2] This information suggested the likelihood of such treatment is generally low and this did not tend to support his claims for protection. The applicant replied that the opposite was actually true and in 2015 he was threatened when he returned to Fiji. The Tribunal raised with the applicant country information from DFAT, concerning state protection, suggesting that whilst there are some problems with the military and judiciary, generally for ordinary citizens and those of low profile state protection is available, and this did not tend to support his claims for protection.[3] He replied that if he returns to Fiji he knows something will happen to him, regarding the military they now control the police and corrective services, and regarding the judiciary if people criticise the Government they can end up in prison.

   [1] Paragraphs 3.73, 3.74 and 3.84 DFAT Country Report Fiji of 14 April 2015.

   [2] Paragraphs 4.6 and 4.12 DFAT Country Report Fiji of 14 April 2015.

   [3] Paragraphs 5.4, 5.15 and 5.23 DFAT Country Report Fiji of 14 April 2015.

3. The Tribunal drew to the applicant’s attention that he raised a claim later in the review hearing regarding harm he faced in 2015 when he returned to Fiji, although earlier in the hearing he indicated he had not been harmed since June 2007. The applicant explained when he went back in 2015 he heard from soldiers in the village that if he held another meeting something will happen to him and this was done in a threatening way. Due to this he returned to Australia in 2016. The Tribunal raised with the applicant that he stated earlier he faced no harm since 2007, indicated similar to the Departmental delegate at interview as reflected in their visa refusal decision, and accordingly the Tribunal might have some difficulty accepting this claim. The applicant responded that after the incident at the military camp he refrained from joining any other organisation at the village, and just went to work which became his life. He prayed to come to Australia after his retirement in 2015.

4. The Tribunal raised with the applicant country information from DFAT, concerning exit and entry procedures, suggesting that the Fijian airports have systems in place to detect persons of interest and this did not tend to support his claims that he was of adverse interest to the Fijian authorities, given he was able to exit and re-enter the country without difficulty during his travels in 2015 and 2016.[4] He responded that in 2007 he was harmed and so when he returned he didn’t want to engage in other activities of note because he didn’t want to go back to the military camp. That is why he was thinking that when he retired he would go to Australia in 2015. He added that the law at that time was suspended.

   [4] Paragraph 5.40 DFAT Country Report Fiji of 14 April 2015.

5. The Tribunal drew to the applicant’s attention the following information and invited his comment. According to his passport details page which he provided to the Department, he was issued a Fijian passport on [date] 2015. As noted in the delegate’s decision, he first applied for an Australian visa on [date] March 2015, it was granted to him on [date] March 2015 and he did not travel to Australia until [date] April 2015. He then departed Australia for Fiji on [date] July 15. He remained in Fiji, then applied for an Australian visa on [date] January 2016, which was granted on [date] March 16, and he returned to Australia on [date] March 2016. He waited approximately one and a half months from arrival in Australia before lodging the protection visa application. He also indicated in his oral evidence that he wanted to come to Australia after his retirement in 2015. The Tribunal indicated the aforementioned matters did not tend to support his claims that he was previously harmed in Fiji, or that he genuinely fears harm in Fiji, or that he will face or suffer any harm if he returns to Fiji. The applicant responded that after the 2007 incident he just wanted to go to work, stay at home and not be part of any meetings or organisations. The Tribunal asked the applicant why he would face harm after 2007, with him responding that he just stayed at home and did not become involved in activities. He added that he wanted to come to Australia after his retirement in 2015 because he wanted to have money before he came to this country. The Tribunal raised with the applicant that this delay to save money might suggest he did not fear harm or that there was no threat of harm to him, inviting his comment. He replied, ‘that’s what I thought’, adding that after the camp he just went to work then stayed at home otherwise. The Tribunal asked the applicant why he applied for protection when he did. He replied that he spoke to his uncle ([Pastor A]) who advised him he could seek protection. When asked by the Tribunal if he ever thought of claiming protection before being advised to do so by his uncle, the applicant responded that in 2016 he did think of this in order to legally become an Australian citizen.     

6. Following an adjournment, the Tribunal asked if the applicant wished to add any further oral evidence. He indicated that he didn’t want to return to Fiji because of the incident that happened where he became fearful for his life. He added that he is sometimes forgetful because of this fear. The applicant also advised he fears returning to Fiji because of what can happen to him and his younger brother and children who are still in Fiji. The Tribunal asked the applicant why he didn’t raise these family members in his written claims and he replied that he is doing so now because he was invited to provide further information. He indicated that whatever happened to him can also happen to his children and his family. The Tribunal indicated that it might have some difficulty accepting the genuineness of his claim on behalf of family members given it was not raised in his written claim, not advanced before the Departmental delegate, and not mentioned in his earlier oral evidence when he was asked about his family circumstances. The applicant replied that he raised it because the Tribunal had asked him if he had any further evidence to provide. The Tribunal again indicated to the applicant that it might have some difficulty accepting his claim concerning his children and family in Fiji for the reasons outlined earlier, inviting his comment. He again replied that he brought the matter up as the Tribunal asked if he had any further information to provide.

7. The Tribunal asked the applicant if he had any further information he wished to provide before his witnesses were invited to give their evidence. He responded that he did not wish to return to Fiji. He apologised for the information he gave to the Departmental delegate in [City 1] which indicated he went to the military camp twice, stating he was confused at the time. When asked by the Tribunal if he suffered any medical problems, the applicant replied that he had high blood pressure and took medication for this condition. He confirmed to the Tribunal that he had no other medical conditions. He concluded his evidence by indicating he was really fearful of returning to Fiji. The Tribunal observed the applicant to display an evasive demeanour whilst giving his oral evidence, which was permeated by inconsistencies.

8. The Tribunal took oral evidence from the uncle of the applicant, [Pastor A]. It may be summarised as follows. He heard from the applicant in 2016 and ‘a little bit’ in 2015 that he was taken to a camp in Fiji. The Pastor advised the applicant to apply for protection. When asked by the Tribunal to confirm when he first heard from the applicant of his harm in the military camp, the Pastor advised it was in 2015. He added that the applicant didn’t want to claim protection at this time, preferring to return to Fiji to see his family. He indicated the applicant would then return to Australia if it was not safe. The Pastor agreed that it was strange that the applicant would return to Fiji from Australia in 2015 given the threat he says he faced. When asked by the Tribunal if he ever personally witnessed any incidents of harm befalling the applicant, the Pastor confirmed he did not.

9. The Pastor generally outlined that the applicant told him he was taken to the military camp and assaulted and told to walk home in the dark. The applicant apparently didn’t give him dates. When asked by the Tribunal for further information concerning these matters, the Pastor replied that the military were watching the applicant in the village. He added that was the extent of his knowledge. The Pastor confirmed that he assisted the applicant to make his claims for protection by writing down the story as told to him, then the applicant signed the application. The Pastor indicated things might happen to the applicant if he went back to Fiji, torture has not stopped in the military camp, the population lives in fear and the Fiji First Party stops the activities of other parties.

10. The Tribunal invited the applicant to make any comment following the evidence of his uncle. He declined to do so. The Tribunal raised with the applicant that the Pastor’s evidence suggested his knowledge of the claims for protection were based upon what he had told him. Further, the Pastor was not present when any incidents of harm took place. The Tribunal indicated that it might place limited weight on the Pastor’s evidence given the aforementioned matters and also because his evidence was quite general and lacked specific detail. The applicant replied that he just told his uncle what happened. Following careful consideration, the Tribunal places low weight upon the evidence of the Pastor given its aforementioned characteristics.

11. The Tribunal took oral evidence from [Ms B], the purported partner of the applicant. Her evidence may be summarised as follows. She knew the applicant from Fiji and she came to Australia in 1994. She reconnected with the applicant when he came to Australia in 2015. When asked by the Tribunal to explain what she knew of the applicant’s claims for protection, [Ms B] confirmed she had heard stories from him and other family members, however ‘she doesn’t know the whole story.’ The Tribunal questioned [Ms B] further about her knowledge of the applicant’s claims for protection. She provided a vague and inconsistent account in response, at one time citing the applicant was assaulted with other family members, then later resiling from that position to indicate he was assaulted alone. [Ms B] confirmed neither she, nor the other persons she referred to, had actually witnessed the applicant come to harm in Fiji.

12. When asked by the Tribunal if the applicant told her why he returned to Fiji from Australia in 2015, she advised it was because he was still working at the time. The Tribunal also asked her to clarify her knowledge of the applicant’s claims for protection and [Ms B] again provided vague responses. [Ms B] concluded her oral evidence by indicating that the applicant had looked after her when she was in poor health, that she loved him and did not want him to return to Fiji. The applicant was invited to add further information following her evidence and indicated they are in love and he will support her. The Tribunal raised with the applicant that it might place limited weight upon the evidence of [Ms B] given her vague knowledge of his protection claims, not witnessing any of the purported harm, and that the family members she referred to did not witness any harm either. The applicant was invited to comment and responded that he asked [Ms B] to give evidence to confirm that they were living together and he accepted that she had head mostly about his case from himself. Following careful consideration, the Tribunal affords the evidence of [Ms B] low weight on account of her vague and inconsistent account.  

13. The Tribunal raised with the applicant that, whilst it had not made up its mind, it had the following concerns with his claims for protection. As outlined above, the applicant appeared to provide inconsistent evidence by way of indicating he suffered harm in 2006 and 2007 in the information he provided to the Department, yet could only recall one incident in June 2007 in his oral evidence before the Tribunal (and indeed confirmed in oral evidence that there was actually only one incident of harm in 2007 despite him also raising 2006 before the Department). He also indicated that military personnel listened to the village meetings where no political matters were discussed, yet they still informed on him to the military camp. He indicated initially during his oral evidence that he had not been threatened with harm since 2007, then later raised that he had been threatened when he returned to Fiji in 2015. The applicant also appeared to display a limited knowledge of Fijian politics. He variously claimed harm in 2006 and 2007 (depending upon the version he provided), yet was able to remain living and working in the same location for many years and was also able to return to Fiji in 2015 without incident. His witnesses also displayed limited knowledge of his claims.

14. Further concerns of the Tribunal were raised as follows. The applicant travelled to Australia using a valid Fijian Passport between [date] April 2015 and [date] July 2015 and did not seek protection during that visit. He returned to his place of residence in Fiji for approximately 6 months before seeking another Australian visa. After arriving in Australia on [date] March 2016, he did not seek protection until [date] April 2016. He was able to exit and re-enter Fiji without problem during this travel. His travel history and delay in claiming protection tended to undermine his claims. The applicant also advised in oral evidence that he was waiting to save money prior to coming to Australia to live after his retirement, and that he was not involved in any political matters after 2007. The Tribunal also indicated that the DFAT country information did not tend to support his claims for protection. The applicant was afforded the opportunity to comment on the Tribunal’s concerns and he responded that he raised matters regarding his travel in 2015 due to the events of 2007 and that is why he was waiting to save money before coming to live in Australia.

15. The Tribunal provided the applicant with further opportunities to raise any relevant matters. He again indicated he was mistaken when raising the incident of harm in 2006 before the Departmental delegate at interview. He indicated he was not assaulted in 2015, but threatened then. The applicant advised he told his uncle in 2015 that he wanted to go back to Fiji, but returned to Australia after being threatened. He concluded his oral evidence by asking the Tribunal to provide him with more time to make a Partner visa application with [Ms B]. 

    Analysis  

16. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the review hearing, the Tribunal developed serious concerns with the credibility of the applicant’s claims for protection. As previously outlined, the applicant provided inconsistent evidence regarding being harmed by the Fijian military in 2006 and in 2007. The Tribunal does not accept the applicant’s explanation that the inconsistencies in his accounts of harm by the Fijian military are attributable to nervousness at the Departmental delegate interview, given that he claimed harm in both 2006 and 2007 in his written claims where he was not under any interview pressure. Further, in oral evidence before the Tribunal he stated, “the truth is I only went once to the camp in 2007”. The applicant also gave inconsistent oral evidence regarding when he was last purportedly threatened by the military, initially indicating it was in 2007 then later advising it was in 2015. He also provided inconsistent oral evidence concerning purported threats to his family members in Fiji (which were not raised before the Departmental delegate), initially omitting such matters when describing their circumstances, then only later advising they might suffer the harm he did.

17. The applicant’s stable residential and employment history over many years in Fiji, his pattern of travel and the delay in him claiming protection, further undermine the veracity of his claims as outlined above. The evidence of his two witnesses has been afforded low weight by the Tribunal for reasons previously canvassed. Further, the Tribunal has carefully reviewed the written material submitted by the applicant in the form of media articles (and related items). Given this  material is general in nature and none of it refers to the applicant’s specific circumstances, when considered in the context of the serious credibility concerns previously outlined, the Tribunal affords this written material no weight.

18. The Tribunal does not accept that the inconsistencies in the applicant’s evidence may be attributed to lapses in memory, as he attempted to suggest, given the manner in which he presented his evidence and his acknowledgement that he suffers no medical condition other than high blood pressure. The Tribunal does not accept the applicant has ever been a member or supporter of the SDL or SODELPHA political parties (or their leaders) given the aforementioned credibility concerns in conjunction with the scant knowledge of these parties he displayed at the review hearing. Following careful consideration, the Tribunal finds that the applicant fabricated his claims for protection and was an untruthful witness. Further, having made that finding, the Tribunal does not accept the applicant’s family members in Fiji are at any risk of suffering the harm he described. Accordingly, the Tribunal does not accept that the applicant or any member of his family was ever harmed, faced harm or will be harmed in the future in Fiji for any reason whatsoever.

19. The Tribunal notes that the applicant suggested during the review hearing that wages are problematic and very limited for him and his family as a result of Fiji First being in power, and also that there are restrictions upon meetings imposed. Following careful consideration, the Tribunal does not accept that the applicant will face serious or significant harm in Fiji as a result of the aforementioned matters. Regarding the matter of wages, the applicant referred to being retired and in receipt of the equivalent of superannuation by way of lump sum. Additionally, the economic situation appears to apply to the whole Fijian population and appears not to be directed at him or his family personally (recalling that the Tribunal does not accept any harm has been directed to the applicant or his family for any reason by the Fijian authorities). Further, the matter of wages does not reach the threshold of serious or significant harm pursuant to s.5J(5) and s.36(2A) of the Act. The Tribunal also notes that the applicant’s claims regarding wages were delayed and not raised until the review hearing. With regard to restrictions upon meetings being imposed, the Tribunal does not accept that the Fijian authorities have or will direct serious or significant harm to the applicant or his family in connection with this matter, due to the previously expressed lack of credibility in his claims concerning military interference in past meetings. Further, the matter of purely restricting meetings does not amount to either serious or significant harm pursuant to s.5J(5) and s.36(2A) of the Act. Ultimately, the Tribunal does not accept that there is a real chance the applicant will face serious or significant harm for any reason if he returns to Fiji.

1. For completeness, the Tribunal notes that the DFAT Country Report Fiji was updated on 27 September 2017, following the review hearing. Whilst some amendments have been made in this latest report, they do not assist the applicant’s claims for protection surrounding the Fijian authorities (in particular the military) given that the Tribunal does not believe such claims were truthful. Additionally, the revision of the country information has not been such as to assist the applicant’s claims concerning wages and restrictions upon meetings and, in any event, the Tribunal does not accept there is a real chance that he will face serious or significant harm regarding those matters for reasons previously expressed.  

   CONCLUSION

2. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

3. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). 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).

4. 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

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

   K. Chapman
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

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

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

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

   but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   …

   5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)   significant physical harassment of the person;

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

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

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

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

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

   5K  Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

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

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

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

   5L  Membership of a particular social group other than family

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

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

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

   (c)   any of the following apply:

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

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

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

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

   5LA  Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

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

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)   the death penalty will be carried out on the non‑citizen; or

   (c)   the non‑citizen will be subjected to torture; or

   (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)   the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …