1616591 (Refugee)

1616591 (Refugee) [2018] AATA 5165 (13 November 2018)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1616591
COUNTRY OF REFERENCE: Fiji
MEMBER:David McCulloch
DATE:13 November 2018
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 13 November 2018 at 4:19pm

CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – police informant – imputed political opinion – perceived support for Fijian political system – illegal exit – fear of detention – threats from senior corrupt police and criminals – fear of killing – return visits to Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 433,438, 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 on 13 September 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 27 July 2015.
The first named applicant (the applicant) appeared before the Tribunal on 18 October 2018. The Tribunal was assisted by an interpreter in the Fijian language.
The second named applicant attended the Tribunal hearing. At the end of the applicant giving evidence, the Tribunal indicated that it did not propose to seek evidence in the hearing from the second named applicant, but if the applicant wished the second named applicant to give evidence this could be adduced with the assistance of the migration agent. The migration agent indicated that it was not proposed that the second named applicant give evidence.
CRITERIA FOR A PROTECTION VISA
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) of the Act. 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) of the Act.
Under s.5J(1) of the Act, 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 of the Act, 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 s.36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include de facto spouse.
The Tribunal is satisfied for the purpose of this decision that the second named applicant is the de facto spouse of the applicant and therefore a member of the same family unit as the applicant. The second named applicant is not making her own claims or protection.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Fiji, 27 September 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The decision of the delegate, a copy of which the applicant has provided to the Tribunal, contains the following information concerning the applicant’s migration and other relevant history:
The applicant arrived in Australia [in] November 2010 as the holder of a [temporary] visa which was granted 4 June 2010 and was in effect until 4 June 2011. He departed Australia [in] February 2011, arrived [later in] February 2011 and departed [in] May 2011 as the holder of his [temporary] visa.
The applicant was granted a [different temporary] visa on 27 August 2012. He arrived in Australia as the holder of [that] visa [in] August 2012 and departed [in] November 2012 using his [that] visa.
The applicant was granted a [further temporary] visa on 17 February 2014 and he arrived in Australia [in] March 2014 as the holder of [that] visa, which remained in effect until 1 June 2014.
The applicant lodged an application for [a different permanent] visa on 21 May 2014. On the 4 March 2015 the applicant was invited to comment on the following adverse information: that he entered Australia as the holder of a false passport, he had concealed his criminal record in New Zealand and Fiji and his real name is [name variation]. In response to this letter the applicant stated that his real name is [applicant name], he has a criminal record in New Zealand but not in Fiji and he had worked as a police informant to the Fijian authorities. As the applicant had entered Australia on a false passport he did not meet the Public Interest Criteria and his application for [the different permanent] visa was refused on 5 May 2014. He made an application for a review of this decision to the Migration Review Tribunal (MRT) on 29 May 2015 and as the time frame to seek a review was not met the MRT did not review the decision to refuse the applicant.
The applicant lodged an application for a subclass Protection (class XA, subclass 866) visa on 27 July 2015 and he attended a Protection visa interview on 28 October 2015.
While the application for the protection visa was initially made in the name of, and providing the passport of, [Alias 1], the applicant has later provided a passport issued by Fiji [in] 2016 in the name of [applicant name].
The application form for the protection visa includes the following information in relation to the applicant. As indicated, the protection visa is initially applied for in the name of [Alias 1] and indicates that he has also been known by the name [applicant name]. The applicant was born on [date] in [City 1], Fiji. The applicant speaks, reads and writes English and speaks Hindi. The applicant belongs to the Indo Fijian ethnic group. The applicant is in a de facto relationship which commenced [in] January 1998.
The applicant lists both parents as Australian citizens who reside in Australia. The applicant lists a son who is a citizen of New Zealand by birth and who currently lives in Australia. The applicant lists [children] who are New Zealand citizens and live in New Zealand. The applicant lists a [further child] who is a citizen of Fiji and lives in Fiji. The applicant lists a [sibling] who is a citizen of Australia and lives in Australia. The applicant lists [siblings] who are citizens of Fiji and live in Fiji. The applicant lists [relatives] who are citizens of Australia and live in Australia.
The applicant indicates that he used a fraudulent travel document to depart from Fiji. The applicant indicates that he had an Australian immigration visa refused or cancelled [in] May 2015 due to a discrepancy in information. The applicant previously departed Australia [in] February 2011 and re-entered [later in] February 2011. The applicant was previously excluded, asked to leave, deported or removed from New Zealand [in] December 2007. The applicant was residing permanently in New Zealand from [December] 1998 until [December] 2007.
The applicant lists that he lived in [Town 1 in] [City 1], Fiji from [year] until December 1998. The applicant lists one address in New Zealand from December 1998 until December 2007. The applicant returned to [Town 1] from December 2007 until March 2014.
The applicant indicates that [in specified years] he was employed as a police informer for the Fijian police. For the period [of specified years] the applicant worked as [an occupation] for a private organisation. [In specified years] the applicant was [self-employed]. [In following years] the applicant worked in his own [business]. From December 2007 until March 2014, in addition to being a police informer, the applicant was self-employed [in various fields].
The applicant completed [level] school in [year]. The applicant lists that he was convicted [in] 2003 of using a fraudulent passport in New Zealand. The applicant indicates that he was convicted of an assault in Fiji [in] 2013, although he did not commit the assault.
The applicant provided to the Department a statement dated 30 October 2015 which is extracted below. In the interview the applicant indicated that this is an expanded and superseded version of an earlier statement provided. As noted by the delegate, there are some material differences in the statements. The later statement provides as follows:
1.I, [Alias 1], a Fijian citizen, was born [Town 1 in] [City 1] on [date]. I have another name I am known by as [applicant name]. However, I used the above name with above date of birth when I arrived in Australia. I arrived to Australia on [date]/03/2014 holding a [temporary] visa. Having arrived, I found my parents in urgent need of care. Therefore, I applied for a [permanent] visa; however, the [permanent] visa was refused and I was not able to lodge my review application on the due specified time. Hence, my application did not fall under the MRT jurisdiction. I received the MRT notification on 03/07/2015 and I understand that I have 28 days to apply for any other eligible visa.
2.Since the fact that I cannot apply for any visa other than protection; I wish to present my circumstances to the Department for which I fear to go back to Fiji. This is a brief account of my history and the reasons why I seek asylum in Australia.
3.I was the oldest amongst my [siblings]. I completed [number] years in high school and due to the needs of my family; I started to work and earn our livelihood. My father was unable to work and I had to take the burden on my shoulders to become the only source of income for the whole family. My parents were poor, life was very hard, and if I did not leave school and work, the whole family would have not been able to subsist. Life became worse when our house was burnt down. I had to work harder to earn more in order to rebuild the shelter while there was no insurance to cover the damage.
4.In 1978, I got [married]. This marriage lasted for only [number] years and I have one son of this marriage. I divorced her due to our hardship that she could not stand. On 1998, I established my de facto relationship with my current partner [and] we have one child of this relationship. My partner is included in my previous and current application.
5.Before my arrival to Australia, I was fearful to use my original name due to the fact that I was a police informant where some criminals knew about my duty in helping the security authorities. This was a big problematic issue in my life when I was threatened by a very powerful people in Fiji. These people associated with senior policemen, his name is [names of three officers]. These policemen are very powerful and since I reported the specious activities, I became under their threats.
6.The threats implemented as in 2009, my house was raided while we all were at home. My son was harmed; he was beaten and hit in the head with metal tool. My partner was able to flee the harm; she managed to escape before she was stabbed by a knife. However, I was subjected to stabbing by a [different weapon]. While I was under the serious harm and as far as my partner fled the house, she screamed to draw the neighbours' attention. As the partner was screaming and even though no one came to help, the actors left immediately taking my car.
7.I continued receiving death threats by phone from [Mr A] who was the big head in the gang. He asked me to stop providing information I knew to the authorities. He said that if I told the authorities more information, my life would be ended in a minute. I further even received phone calls from Australia threatening my life. From Australia the person who threatened me was [name] whom I met him once back in 2013 in Fiji.
8.When I reached the highest level of threats I urgently requested a meeting with [Government Official A] [named] and asked for protection for me and my family. I understood that my life was in jeopardy and protection was not available for me from the Fijian authorities whom I helped while I was informant for them. The [Government Official A] said that the authorities could not control the actors neither was able to provide security to protect me. He advised me to stop working as informant and to keep quite.
9.When I received no protection from the authorities and I continued receiving death threats, I met someone to help me obtaining new IDs and passport by different name and date of birth to avoid being identified by the authority who was also involved in my threats. I made my first trip to attest the IDs and passport. When I was successful to pass through Australia, I returned back to Fiji and stayed in hiding until my current trip to Australia when my parents called for help. I had not alternatives but to use this way in order to save my life being killed by the powerful policemen involved in the expected harm.
10.Although the documents I used to enter Australia were illegitimate, the reasons I used them was to protect my life and consequently my family wellbeing. I was affected by these people even in Australia when they dobbed me in to the immigration so that I would be forced to go back to Fiji where I can be easily eliminated.
11.I fear to go back to my home country for the reasons that I will face serious and/or significant harm due to my membership of particular social group being informant for the Fijian authorities, and for my imputed political opinion as I am perceived as a supporter of the Fijian political system. There is no protection available for me in my home country and have no access to a third country.
12.Furthermore, if I was deported from Australia, I would be received by the Fijian authorities who will defiantly imprison me for the documents I used and the persecutors will easily allocate me and end my life.
The applicant provided to the Tribunal an affidavit from [Mr B] dated [in] 2015 who states that he served with the Fijian police force [between specified years]. He indicates that he has known the applicant for more than 20 years. He indicates that the applicant has been a police informer giving useful and credible information to the police enabling it to detect certain cases with successful convictions in court. The applicant has provided information to [Mr B]. [Mr B] indicates that somehow this fact was leaked to criminals causing the applicant to be threatened to be killed. [Mr B] resigned from the police force in [year] and went abroad but that, upon his return, the applicant continued to give him vital information about certain criminals which [Mr B] conveyed to another individual with the police who is now deceased.
The applicant had proposed in advance of the hearing that [Mr B] would give evidence at the hearing. However, it was indicated in the hearing by the applicant that he has not maintained contact with [Mr B] since his provision of the affidavit and the applicant did not have his contact details meaning that he was not in a position to give evidence.
The applicant provided additional documents to the Tribunal on 15 October 2018, in advance of the hearing:
·Letter dated [in] October 2018 from [name] (the son of the applicant). It indicates that he and his wife have a genuine fear for their family in Fiji. It refers to a home invasion [in] May 2009 which resulted in [the son’s] hospitalisation with serious head injuries. This led to [the son] and his wife migrating to New Zealand due to fear of their safety. They have been out of Fiji ever since and have not returned. [The son] implored his father to follow suit.
·Letter from [a named police officer], [from a City 1] Police Station dated [in] October 2016 indicating that [in] May 2009 the applicant reported at the Police Station that [unknown] persons masked and armed with [weapons] forcibly entered his home and stole assorted [items]. The matter was investigated and [accused persons] were arrested and charged with Robbery With Violence. The matter has been finalised by the court. The case was withdrawn by the magistrate.
Provided to the Tribunal were copies of media reports. There is a report dated [in] December 2014 headed ‘[deleted]’. The [identified product] was sent from [Country 1]. Fijian police arrested a [man] who was a joint [country] and Fijian citizen on the charge of importing the drugs. Reference is made to the [drugs] heading to another country and collaboration with authorities in [Country 1], [another country] and Australia.

An Internet report from [a source] dated [in] October 2015 refers to the acquittal of the abovementioned [man] of charges of importing [drugs] into Fiji. The judge ruled that the accused had no knowledge of the shipment of [the drug].
An Internet report dated [in] February 2018 from [source] which refers to a tipoff by [Police] resulting in [friends] being charged with importing a large quantity of drugs into Fiji. The drugs were ultimately bound for Australia. Those accused are named, one being the abovementioned [man], with the other being sentenced to [term] in Suva prison. It is alleged that the ringleader was the abovementioned [man] who beat the drugs charge and is a free man in [another country]. He is a close friend of the convicted man. The shipment was addressed to the abovementioned [man] but prosecutors were unable to prove that he knew there were drugs inside. The convicted man proclaims his innocence.
Provided on the day of the hearing was a letter by [name] who is [another] son of the applicant. He indicates that [in] May 2009 at the age of [age] years he witnessed an invasion of his home in Fiji. He witnessed his [brother] being hit on the head. He refers to an attempt being made to stab the applicant. The impact of this event has stayed with [this son]. He claims that returning to Fiji would create fear for him.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Fiji and accordingly his claims will be assessed against Fiji.
At the commencement of the hearing the Tribunal explained to the applicant his right not to answer any questions put by the Tribunal if the applicant thought that answering the questions might incriminate himself. The Tribunal raised this issue given the Tribunal’s view, based on assessing the papers before it prior to the hearing, that the applicant may have engaged in criminal activity. The Tribunal indicated that it would ask about criminal activity, but that the applicant would have the option of declining to answer on the basis that the response might incriminate him.[1] The applicant indicated that he understood what the Tribunal was saying. In the course of Tribunal questioning, the applicant made no claim to be unable to answer any question on the basis that the response might incriminate him.
[1] Section 433(3) of the Migration Act.
The applicant in the hearing gave evidence concerning his role as a police informer before he left for New Zealand in 1998. He said that his involvement with police began in about [year]. Police had questions about a particular local individual who was ‘flourishing’ and the applicant was engaged to get close to this individual. The applicant discovered that this person was manufacturing illegal drugs and passed this information on to the police. The investigation by police did not progress but the applicant was involved again later with the police.
The applicant also referred to interacting, as an informant on behalf of police, in this period with a person called [Mr A] who was operating a racket involving a [financial matter].
The applicant indicated that senior corrupt police officers informed [Mr A] that the applicant was an informer causing the applicant to fear for his safety resulting in him travelling to New Zealand in 1998.
The applicant indicated that after he was deported from New Zealand (in 2007) and returned to Fiji, he returned to his same family [property] where he had lived his whole life in [City 1]. The applicant indicated that he continued informing for the police in relation to a number of criminal ventures. He referred to the [relative] of [an official] being involved in a criminal enterprise involving the importation of [drugs] and then being exported to Australia. The applicant was friends with the [official] and through this contact was able to obtain information of use for police.
The applicant indicated that [Mr A] was involved in a separate drug operation after 2007 and that the applicant also passed on information to police about this operation.
The applicant was asked in the hearing why he obtained the fraudulent passport in 2010. The applicant indicated that, the senior police officer he was providing information to, died causing the applicant to become fearful for his life. The applicant wanted to ensure that he was able to get out of the country, if that was necessary.
The Tribunal asked the applicant on at least two separate occasions if, he himself, was involved in criminal enterprises. The applicant said in his responses that he was not.
The applicant gave evidence that he ‘feels’ that the home invasion that he experienced in 2009 was orchestrated by either [Mr A] or another named individual. That second person is the [man] mentioned in the media reports above referring to that individual and another individual allegedly being involved in an enterprise importing [a drug] from [Country 1] to Fiji in a [product] with the drugs being destined ultimately for Australia. The applicant confirmed in the hearing that the individual was the same person as one of the alleged perpetrators mentioned in the media reports. The applicant indicated in the hearing that he himself was not involved in this particular criminal enterprise.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, the applicant made no effort to seek the equivalent of a protection visa in New Zealand[2] while there from 1998 until 2007 despite his claims that he left Fiji in 1998 in fear for his safety. In the hearing, the applicant indicated that this was because he had a fraudulent passport with permanent residency enabling him to remain living in New Zealand.
[2] >
As noted to the applicant by the Tribunal, at the point at which it became clear to New Zealand authorities that his legal basis for remaining in New Zealand was fraudulent, the applicant could have sought the equivalent of a protection visa. (New Zealand authorities will not deport a person while that claim is being assessed.[3]) In response, the applicant indicated that he did not have knowledge of his ability in this respect.
[3] >
The Tribunal has some difficulty accepting that the applicant would not have learned in his nine years of living in New Zealand of the option to seek the equivalent of a protection visa. However, this is a matter that is given only limited adverse weight and considered together with more significant credibility concerns.
Secondly, the fact that the applicant returned from New Zealand in 2007 to live in Fiji in the same location where he had lived previously and continued to be a police informer is not plausible in light of the applicant’s specific claims. The applicant claims to have fled to New Zealand in 1998 in fear of his safety because his role as an informer was revealed to one of the criminal organisers, [Mr A].
Yet, when the applicant was forced to return to Fiji in 2007, he returned to the very location in which he had previously faced harm and where [Mr A] was operating. Further, the applicant claims that he continued to be an informer to police in relation to a range of criminal activity, including drug operations by [Mr A].
The Tribunal does not find it plausible or likely that the applicant would return to the same location in Fiji where he had encountered the various difficulties claimed in 1998 and prior. The Tribunal further does not consider it plausible or likely that the applicant could or would continue to be an informer with respect to [Mr A] requiring as it did the applicant to infiltrate criminal networks when the applicant had already been identified to [Mr A] as an informer.
In response to this issue in the hearing, the applicant indicated that he was trusted by [Mr A’s] partner and that a long period of time had elapsed since what had occurred in 1998 and prior. This issue is also addressed in a written response provided following the hearing. The applicant indicated that he felt it would be safer to return from New Zealand to an area surrounded by relatives and community people. [Mr A] was based out of another region and later moved to the same region as the applicant.
Notwithstanding these explanations, the Tribunal considers that it entirely lacks credibility that the applicant would be able to re-establish living arrangements and connections with criminal networks who had previously been informed that the applicant was a police informer.
Thirdly, the applicant has provided inconsistent evidence as to his rationale in obtaining the fraudulent passport in 2010. In the hearing, consistent with the applicant’s written claims as extracted in this decision, the applicant claimed that he obtained the fraudulent passport in 2010 so that he could escape the attention of criminal elements and corrupt authorities who wished to harm him. When the Tribunal questioned the applicant further on this claim he indicated that it would give him the ability to escape the country whenever he needed to.
The Tribunal put to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act inconsistent evidence he had given on this issue in the interview with the delegate. In the interview, the applicant indicated that the passport was in fact obtained for him by criminal elements to facilitate the applicant being a courier of drugs to Australia, on board a ship. The applicant indicated that his multiple visits to Australia thereafter were to test whether the passport would facilitate entry to Australia. The Tribunal noted to the applicant that this explanation was different from his explanation in the hearing and in his written claims. The Tribunal also noted that what the applicant indicated in the interview with the delegate appeared to be contradictory to his claims that he himself was not involved in criminal enterprises.
In response in the hearing, the applicant indicated that the issue might not have been put properly by him in the interview. He indicated that police were the ones that asked him to be the courier. He was working undercover.
In the written response provided following the hearing the applicant said that at no point has he engaged with criminal elements of his own accord. It has always been at the behest of law enforcement officials. It is claimed that the passport obtained during his undercover work and the one obtained to flee to Australia are not one and the same and were obtained in different time periods.
The Tribunal does not accept the truth of this evidence. The questions relating to passports have at all times pertained to the passport that was obtained in 2010.
The applicant’s evidence in the interview is quite clear that the passport was obtained for the purpose of the criminal enterprise (whether or not the applicant was participating on an undercover basis). The applicant has given a quite different rationale in both his written statement and the Tribunal hearing as to the reason that the passport was obtained, which undermines his credibility.
The Tribunal also considers that the applicant has not been truthful in initially telling the Tribunal in the hearing that he himself was not involved in criminal enterprises. It is quite clear that the applicant was involved in criminal enterprises over a number of years, given he told the delegate that he made multiple trips to Australia to ‘test’ the fraudulent passport for the purpose of ultimately being a drug courier. As the applicant eventually acknowledged in the hearing, he was considered part of the criminal enterprise by those working with him.
The Tribunal is not persuaded that the fact that the applicant explains that he was working undercover explains why he initially told the Tribunal that he himself was not involved in criminal enterprises. The logical response to those initial questions asked by the Tribunal of the applicant would have been to have indicated that he was involved in the criminal enterprises, but on an undercover basis.
Fourthly, the applicant has been inconsistent as to whether he was facing threats and difficulties in 2010. Further, the applicant’s three return visits to Fiji from Australia in November 2010, February 2011 and August 2012 undermine the claim that he feared or fears serious or significant harm in Fiji.
The Tribunal put to the applicant in the hearing the following information pursuant to the procedural requirements of s.424AA of the Act. The information is information given by the applicant in the interview with the delegate. At one point in the interview the applicant indicated that prior to coming to Australia in 2010 everything in Fiji was peaceful. However, at another point in the interview the applicant indicated that prior to coming to Australia in November 2010 he was subject to death threats. This information is relevant because the applicant has been internally inconsistent. The Tribunal noted that the applicant had indicated earlier in the hearing that he was in fear of his life in 2010. The Tribunal also noted to the applicant that it is not consistent the applicant would return to Fiji from Australia on multiple occasions if he feared for his life from 2010 as claimed.
In response, the applicant indicated that he thought that he was asked the question by the delegate as to whether he had received a death threat recently (i.e. immediately prior to the interview). The Tribunal indicated to the applicant that in the interview the applicant specifically responded to a question as to what happened prior to the applicant coming to Australia in 2010 and the applicant responded that it was very peaceful. In response in the hearing, the applicant indicated that he used to get death threats all the time. He referred to his meeting with the Fijian [Government Official A] where he was told that he could not be given protection.
As given in evidence to the delegate, the claimed meeting with the [Government Official A] was in 2013 and therefore is not relevant to difficulties faced by the applicant in 2010.
The Tribunal is concerned as to the applicant’s credibility as he gave inconsistent evidence as to whether he was facing threats prior to coming to Australia in November 2010. The concluded position of the applicant in the Tribunal hearing is that there were death threats at this point in time and he had a fear of harm from that point in time.
In relation to his multiple return visits to Fiji from Australia from November 2010, the applicant said in the hearing that he was forced to return because he had stress, depression and everything he had was in Fiji. The applicant indicated that he had left his children behind in Fiji and that they did not know he was informing to police. He did not want them to suffer. The applicant provided a written response to this issue following the hearing. He refers to his family being back in Fiji and he feared for them. The applicant also refers to a compromised mental state.
The Tribunal does not consider it consistent with the applicant having the claimed fear of harm from 2010 that he would return to Australia on three occasions when he would have had the option to claim a protection visa on those prior visits.
It is also telling that in the Tribunal hearing the applicant provided no indication that on his return visits to Fiji he remained in hiding. This is what is claimed in the applicant’s written statement. However, that statement in itself is not consistent with the details of employment stated by the applicant in his application form for the protection visa. The applicant indicates in that form that from December 2007 until March 2014 he was self-employed [in various fields]. None of those details are consistent with the applicant taking return trips to Fiji from Australia from 2011.
Fifthly, no authoritative or tested corroborative evidence has been provided that the applicant was engaged as a claimed police informer over many years in [City 1]. The individual, claimed to be a former police officer, who made a supporting statement seeking to corroborate the applicant’s claims was not available to give evidence to the Tribunal.
The Tribunal noted to the applicant in the hearing that he had provided no authoritative report from Fijian authorities such as the police themselves that the applicant had been a longstanding police informer. In response, the applicant referred to corruption at the highest levels of the police preventing this.
The Tribunal notes that that did not prevent the applicant from obtaining a report from the [named police officer] of [a City 1] Police Station in October 2016 attesting to the complaint that the applicant made in May 2009 regarding the invasion of his home. That would suggest a degree of police cooperation in supporting some of the applicant’s claims.
The failure of the applicant to provide any tested or authoritative evidence by police authorities in Fiji of being an informer over many years does not support the applicant’s claims and buttresses other more direct credibility concerns.
In the written comments provided by the applicant following the hearing he indicates that it needs to be considered that his whole involvement with the police investigation and as an informer lasted for well over 17 years. If this is correct, it reinforces the Tribunal’s view that the applicant should have been able to provide evidence from Fijian authorities as to this long-term undercover work.
Sixthly, there is information, to which the Tribunal gives only limited adverse weight, indicating criminal propensities on the part of the applicant.
On the Departmental file is a Certificate and Notification issued under s.438 of the Act. It relates to certain information on the Departmental file because it was information received in confidence. The Tribunal put to the applicant in the hearing this information pursuant to the procedural requirements of s.424AA of the Act but without revealing the source of the information.
The document refers to a telephone call received by Border Watch [in] November 2017 from a source who indicated that the applicant made a false passport in the name of [Alias 1] while in Fiji. The source also indicates that the applicant travelled to New Zealand in 1998 using another false name. It indicates that he remained in New Zealand for 10 years committing [specified crimes] and spending time in prison. The source indicates that the applicant was [in specified criminal acts] in New Zealand, imprisoned for [term] and then deported to Fiji. The source indicates that the applicant was deported from Australia many years ago. The source indicates that the applicant returned to Australia in 2014 and is known as [name variation]. The source indicates that the applicant’s wife also entered on a false name but was unable to provide details.

The Tribunal indicated that a significant proportion of the information was consistent with the applicant’s own admissions as to utilisation of false immigration documents and being convicted of an offence in that respect in New Zealand. The Tribunal indicated, however, that the information was relevant because it did suggest criminal propensities on the part of the applicant. Whilst the Tribunal indicated to the applicant that this was third-party information by an unnamed source which could limit the weight given to the information, it could nonetheless be seen as adverse to the applicant’s overall credibility, particularly when considered cumulatively together with other credibility concerns.
The applicant elected to respond to the information in writing following the hearing. In response the applicant correctly indicates that he has already disclosed that he travelled to New Zealand on a false passport and received a sentence in New Zealand for the false passport. Whilst there were other false passports involved by others the applicant was only ever charged in relation to his own passport. The applicant claims he was never in possession of or charged [one specified criminal action]. The applicant also claims that he was not deported from New Zealand, but left of his own accord.
The Tribunal does not consider that this information is overly adverse to the applicant. To the extent that it demonstrates criminal tendencies on the part of the applicant, as the applicant has acknowledged himself, it does cause some questions in relation to the applicant’s overall credibility.
The Tribunal considers these six credibility issues cumulatively. Considered together, they significantly undermine the overall credibility of the applicant and the truth of his specific claims. They cause the Tribunal to not be satisfied the applicant has been a truthful or credible witness.
At its heart, the Tribunal considers it makes little sense in the context of the applicant’s claims as to what happened causing him to go to New Zealand in 1998 that he would have returned to the same location in Fiji in 2007 and continued acting as an informer including against an individual, [Mr A], who he claims knew in 1998 and prior that the applicant was an informer thus creating a risk for the applicant at that time. The Tribunal also considers that it makes little sense in the context of the applicant claiming that the home invasion in 2009 created an ongoing risk for the applicant, together with claims by the applicant of receiving death threats from [Mr A] in 2010, that he returned to Fiji from three visits to Australia, twice in 2011 and once in 2012.
Other credibility concerns identified buttress these core issues suggesting that the applicant did not and does not have a fear of a real chance of serious or significant harm for the reasons claimed. The cumulative impact of the credibility concerns make it difficult for the Tribunal to be satisfied as to any of key relevant factual claims made by the applicant.
The Tribunal is not satisfied that the applicant was a longstanding police informer of a range of criminal activities between [year range] in Fiji. The Tribunal is prepared to accept that the applicant may have had some ad hoc and sporadic contact with police, including corrupt police officers, but not to the extent and in the circumstances the applicant has described. The Tribunal considers that the applicant himself was a willing participant in interacting with criminal elements including engaging in criminal activities, most particularly a role perpetrated over some years to [commit a specified crime] for which a fraudulent passport was obtained for the applicant. Particularly in light of there being no tested corroborating evidence from authorities in Fiji, the Tribunal is not satisfied that the applicant was effectively an ‘undercover agent’ who was acting principally in a law-enforcement role.
The Tribunal is not satisfied that an informing role of the applicant with police was identified to any criminal elements in Fiji causing threats to the applicant or creating an ongoing risk to the applicant should he return to Fiji.
The Tribunal is not satisfied that the applicant had a meeting with [Government Official A] of Fiji in which it was indicated that protection to the applicant would not be provided.
The Tribunal is prepared to accept that the applicant and his family were subject to a home invasion in 2009 in which the applicant and his son were injured. The Tribunal does not accept that this incident was a payback for the applicant being an informer. Particularly in the light of three return visits to Fiji from Australia after that point in time, the Tribunal is not satisfied that this one incident has created a real chance of the applicant facing serious or significant harm as a result of a repeat occurrence.
In making this assessment, the Tribunal has taken note of the supporting statement of the applicant’s son, [named], who witnessed this attack causing him to migrate to New Zealand and having a fear of returning to Fiji. This statement, while corroborating the attack itself, does not overcome the various credibility concerns which cause the Tribunal not to be satisfied that this attack has created an ongoing fear or risk for the applicant.
In making its findings in relation to the applicant, the Tribunal has taken into account the statement by [Mr B] indicating that the applicant was a police informer. That untested statement does not overcome the cumulative impact of the credibility concerns identified.
The Tribunal noted to the applicant that the second iteration of his written claims (contained in this decision) make reference to a fear of him being imprisoned in Fiji for the documents that he used. The Tribunal asked the applicant in the hearing what he meant by this. In response, the applicant indicated that he had no fear on that basis. He indicated that fraudulent documents only related to his issues and conviction in New Zealand. On that basis, the Tribunal does not consider that the applicant is making a claim that he will be imprisoned on return to Fiji for utilising fraudulent documents.
Considering all the evidence and claims, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act for any of the reasons claimed. 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 is a real risk that he will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David McCulloch
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.
…
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.
…
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.
…
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.
..
36 Protection 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.
…

[2018] AATA 5165

13 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

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