1617222 (Refugee)

[2019] AATA 4320

1617222 (Refugee) [2019] AATA 4320 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617222

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Penelope Hunter

DATE:28 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 March 2019 at 11:23am

CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – Social Democratic Liberal Party (SODELPA, formerly SDL) – Fiji Democracy and Freedom Movement (FDFM) – perceived support for Laisenia Qarase – religion – Christian – Seventh-day Adventist – race – indigenous Fijian – particular social group – involvement in sugar cane industry – Lau Islands heritage – prison ministry visits – credibility issues – inconsistencies in central aspects of claim – number of incidents of harm – dates and order in which the incidents occurred – exaggerated political profile – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 10 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Fiji, applied for the visas on 19 March 2015.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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 s.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.

5. 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.

Mandatory considerations

1. 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.

Member of the same family unit

1. Subsections 36(2)(b) and (c) provide as alternative criteria 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 of the same class as that applied for by the applicant. 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 spouse and dependent children.

BACKGROUND AND CLAIMS

Information contained in the Department file

1. The [first named applicant] (the applicant), is a [age]-year-old male from Fiji. He speaks, reads and writes Fijian and English. The applicant is married to the [second named applicant] (the applicant wife) aged [age]. They have one child, [a son] (the applicant son) aged [age]. They all arrived in Australia in 2015 on a tourist visa. The applicant also has [a number of children] that continue to reside in Fiji.

2. In a statutory declaration sworn on 28 October 2015, the applicant set out the claims that he was relying upon, in summary:

   i.He first had a problem in 2008 when the army and police entered his farmhouse at [Village 1], [District 1], Ba. At 5 am they loaded him into a van and he was taken to [a place]. There he was punched, kicked, beaten with a baton and spat on. He was pulled out of the van, they took his trousers off and laughed at him. They were trying to intimidate him because he is Lauan, and comes from the same province of former Prime Minister Qarase which is a SDL or SODELPA stronghold. He was accused of leading other farmers to burn the cane, and not cut it, and asked who he was to go against the government. The military did not want the cane burned, as the fire could spread to the pine plantation and it affects the quality of the sugar. In 2007–2008 there had been a problem of sabotage on the farms in Fiji. The applicant also thought he was blamed because he [held a specified position] for [Association 1]. Mr Ratu Tevita Mekauta was [an office bearer] of [Association 1] and he was currently in gaol for sedition. The applicant had been working with him from 2010 to 2011 in [Association 1]. Mr Mekauta was the one helping them to organise their evangelism with prisoners, even though he was a member of the Assemblies of God. As part of his prison work he would take ex-prisoners to farms for rehabilitation work. When people see them doing this they become suspicious that they were there to burn the cane.

   ii.The applicant was then taken to a [place] in [Town 1], and thrown inside a tank which already held three people. His clothes were removed and he was beaten on his private parts while people laughed. Then they were all dragged into a pool full of human waste which was up to their neck and forced to remain for three hours until around 5 pm, when they were removed and hosed down. Next they were thrown into a yard without food and left to sleep naked until morning. Their clothes were brought back and he was placed in the van and taken back to [Town 2] around 8 pm. The applicant was also told that if he continued to support Laisenia Qarase and spoil the military government they would take him to task.

   iii.The applicant did not report the matter because the police cannot do anything. He attended the hospital the next morning, where they only did a medical check-up. He had to move away from his farm in 2010 and could not continue on the land for which he had a 30-year lease.

   iv.The second incident occurred [in] August 2010 at [Town 1] market. He was sitting with other people making plans about visiting ex-prisoners. The applicant was a church elder appointed to help the prison group. Around 11:30 am three men came and asked the applicant and some ex-prisoners he was sitting with to accompany them to the army camp in their vehicle. Once at the camp they were pulled out of the vehicle, punched, kicked, and sworn and spat at. His phone was taken from his bag and thrown at him, breaking on his head. The applicant was again accused of supporting Laisenia Qarase and also Suliasi Daunitutu as his tapes were around in the area at the time. He was told not to brainwash people. He was told that the Australian government and Daunitutu cannot help him out to take the videos around to people. The Christian videotapes he had in his bag were taken, as were the pamphlets. They did not find any political tapes and broke all the applicant’s tapes. The applicant and his colleagues, [Mr A], [Mr B] and [Mr C], were told that if they kept spoiling the government they could not hide from them as they will keep watching, and if they were caught again they would enforce the military law.

   v.The next incident occurred [in] October 2013 when he was doing his normal duty visiting people in the remote rural village area of [District 1], Ba. Around 10 am, he had gathered with church leaders for prayer. Six army people came inside the house and took him and three other church members out to their van and then to their army base. Once there the applicant and his companions were beaten with a baton and sworn at. They were told not to enter a village to preach or for any other purpose without their permission, and that he should seek a permit. Additionally, the applicant was told that he should stop talking and spoiling the Bainimarama military government and spreading lies to the people about the government. They claimed to know all of the applicant’s movements because he was Lauan and a member of the SDL. He believed that Bainimarama stopped him from going to Australia at this time because he was supporting Daunitutu and Qarase. They think this because he is Lauan.

   vi.The fourth time was [in] July 2014. At that time the government was allowing small political meetings. Six officials for the SDL party came to the applicant’s home in [Town 2]. They visited him to discuss the new name for the party and ask for his help to visit people in the rural areas to let them know about the status of the party, the change of name from SDL to SODELPA. At 12:30 pm an army van came and took three of the team to the army camp in [Town 2]. Here the applicant and others were beaten, kicked, sworn at and spat at. They were told that they were on a list and if they kept going they would feel the brunt of the law, they were to stop spoiling the government and not to support the SDL and SODELPA party.

1. Although the government of Fiji is an elected government the military is still running it. The applicant was targeted because he was Lauan, he supports the SDL, and because of his role in the church supporting ex-prisoners. The applicant had been involved in the SDL since early 2000 when it first started. He thought it would be a good government for everybody and he could express what was better for the people. He is also suspected because he is Seventh-day Adventist, most people are Methodist and they are suspicious of Seventh-day Adventists.

2. His friend [Mr B], an ex-prisoner and one of the persons that was detained at [Town 1] markets with him, was also a Lauan and has been killed. The applicant heard news of a suspect in a robbery in [Town 3], [Mr B] had been caught and was admitted to [Town 1] hospital, but [in] August 2014 it was reported that he died.

   ix.If he returned to Fiji the applicant would still keep going with similar religious work with ex-prisoners and all of his other religious activities. One of his ex-pastors Apolosi Qalilawa, with whom he worked with visiting prisoners in 2006–2009, was also involved in the Ra group and was arrested for sedition. The applicant had visited George Speight, who was a Seventh-day Adventist,  in prison with him.

   x.The applicant fears that he will be treated similarly by the authorities. The problems he has had with the military just keep going on. He fears that he cannot live a normal life in his country.

   xi.Financially it would also be hard for him to go back. The farm is gone now, it was hard to support his family from [Occupation 1] and he is now past retirement age. He admits these financial problems but it is not the reason that he is seeking protection.

3. His visitor visa to Australia was the second time that he had tried. At that time he applied for the applicant wife and applicant son as well. They were sponsored through their church. He believed that only because he was travelling with a group that he was let out of the country.

4. In Australia he sought assistance from Daunitutu’s group in [Town 4, Australia]. He went to a meeting [in] January [2015] and paid his fees to become a member of the Fiji Democratic Movement. They gave him advice about how to not go back to Fiji and seek protection.

5. In [Town 4] the applicant has also been in a group with Mereoni Kirwin. The Fiji government also want to arrest her for sedition. They know that he is involved with her.

6. He was really not involved in politics other than the things he had set out in his statement. He is a Christian and a politically interested person.

1. The applicant’s representative also submitted various electronic articles to support the applicant’s claims. Information was presented about the politicised nature of the sugar cane industry and cane burning, reports of abuses of Fijian citizens not being effectively reported and seditious arrests in Fiji under the Bainimarama government. Particular reference was made to a statement by Prime Minister Bainimarama of 29 August 2015 regarding “certain high-profile figures in Australia” inciting sedition in Fiji.[1] It was claimed that this was likely to be a reference to Mereoni Kirwin and the FDFM with whom the applicant was associated. Further articles were submitted to demonstrate a claimed tension between the police and military forces in Fiji, and that military abuses continue in Fiji.[2]

   [1] >

   The applicant attended an interview with a departmental officer on 29 October 2015. The delegate refused the visa applications on 10 October 2016.

Tribunal application

1. On 2 November 2018, the Tribunal received a submission from the applicant including a statutory declaration of the applicant sworn on 2 November 2018, a receipt for SODELPA Membership dated February 2016, and reference letter from SODELPA NSW Incorporated dated 2 November 2018. In his statutory declaration the applicant set out the following further information (in summary):

   i.He joined the SODELPA party at a committee meeting at [Suburb 1] in NSW, in about February 2016. He joined the party to stand in a group so that his voice would be heard. The main issue they talk about is fear surrounding what had happened to their leader Rabuka who was found not guilty of electoral fraud in October 2018. The government does not want Rabuka to lead SODELPA.

   ii.The current government of Fiji, led by the Fiji First Party (FFP) had taken away the rights of expression and the right to hold meetings. If people hold meetings without a permit the army comes and breaks it up. This is why there is fear.

   iii.The FFP favours Indo-Fijians and is taking away indigenous Fijians’ rights. Currently there were only two indigenous Fijians in parliament, the speaker and Prime Minister Bainimarama; all other members of parliament were Indo-Fijian.

   iv.SODELPA wants to promote democracy and fairness. The government in Fiji knows that he has joined SODELPA. They had tortured him before when he was a member of the SDL. Intelligence leaks abound and people check websites such as Facebook. They know who is a member of SODELPA. A lot of people who attend SODELPA meetings might be informing the Fijian government and the FFP have a presence in Australia. The fact that the government knows that he has joined SODELPA in Australia makes him fear returning. This has made him more of a target.

   v.If he returns to Fiji he will be persecuted. He still holds the same political values and he is a member of an opposition party. The government was currently torturing and killing members of SODELPA. Their party leader Rabuka was found not guilty of electoral fraud in October 2018, now the FICAC wanted to appeal that decision. If he returned the government could either torture or kill him.

   vi.The applicant son has been diagnosed with a mental condition, [Medical Condition 1]. They only became aware of this problem in 2016. He has had [specified treatment]. This was not diagnosed in Fiji, and they have been told that doctors in Fiji should have noticed this when the applicant son was an infant as it would have been easier to treat. There is no other place that the applicant son could be treated for this problem; he cannot be treated in Fiji. The applicant son is not working. He cannot work because of the effects of his condition on his speech, memory, balance and eating.

2. On 7 November 2018, the Tribunal received letters from [Dr D] dated 16 February 2017 and 14 November 2017 regarding the applicant son.

3. The applicants appeared before the Tribunal on 9 November 2018, to give evidence and present arguments. Only the applicant presented evidence. The applicant wife and applicant son were invited to speak to the Tribunal, although expressed that they were relying solely on the claims of the applicant and did not wish to give evidence. They left the hearing room before the completion of the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Fijian languages.

4. The applicants were represented in relation to the review and at the hearing by their registered migration agent.

5. At the hearing the Tribunal discussed with the applicant his involvement and activity with Fijian organisations in Australia including Ms Kirwin and SODELPA. The Tribunal asked the applicant to provide details of harm he claimed happened to him in Fiji and the reason why he could not return. The applicant provided details of three incidents occurring in 2008, 2009 and 2014. The Tribunal raised with the applicant perceived inconsistencies with his written claims and discussed country information regarding the situation in Fiji. The applicant maintained that the political situation in Fiji had not changed and that there was no human rights as the same people were running the country that had initiated the coup in 2006. Where applicable the Tribunal has set out further the evidence of the applicant below.

1. Following the hearing the applicant provided a statutory declaration sworn 16 November 2018 that set out the following:

   i.In the media the rigging of votes in Fiji is coming up and the Attorney-General informed the public that if they were not voting for Bainimarama, they were putting a dagger in their necks.

   ii.He had visited George Speight because he was a member of the church. It was not a political thing. They visited other prisoners mainly in [Town 1], some with a pastor and some without. Now the pastor has been charged with sedition and the applicant fears he could be charged as well.

   iii.The sugar cane committee chairman is a chief from Nadroga. The applicant was involved with him because he was a member of the board. The applicant is a member of the sugar cane cooperative which represents the majority members of the sugar cane farmers. The chairman has been charged with sedition as have other cane farmers.

   iv.What had happened to the applicant regarding the torture is that he has lost his memory and sometimes he gets nervous about what to say.

   v.He did not discuss at the Tribunal hearing the incident that occurred in 2014 (with members of the SODELPA party) because he lost his memory and he was nervous. He had brought a notebook with him from Fiji and he lost it when he moved in Australia from house to house.

   vi.The applicant was not sure which one of Mereoni Kirwin’s groups he joined. He just joined with Mereoni Kirwin because she supports democratic rights in Fiji. During one of their meetings in [Suburb 2] there was a clash of opinions between Mereoni and Sarah. Mereoni moved away because she disagreed with what was being discussed at that meeting. Sarah did not want to continue to take funds to support people facing sedition charges in Fiji. There was a split and both Sarah and Mereoni took their own teams. He did not know where Sarah met now, possibly [Suburb 2], and Mereoni possibly [Suburb 1]. He did not know who was right and after this he joined SODELPA. He does not want to support Mereoni anymore. Now he fully supports SODELPA.

2. On 5 March 2019, the representative for the applicant submitted to the Tribunal a file note dated 21 February 2019 of a discussion with the applicant and indicated that the applicant may wish to comment on the points made at the Tribunal hearing.

3. The applicants were invited to a further hearing on 6 March 2019 to give evidence and present arguments. Only the applicant presented evidence. The applicant wife and applicant son were again invited to speak to the Tribunal. They indicated that they did not wish to give evidence. They left the hearing room before the completion of the hearing. The interpreter booked by the Tribunal for the hearing failed to attend. The Tribunal offered to reschedule the hearing to a time when an interpreter could be available. The applicant elected to proceed without an interpreter. Although an interpreter was available for the applicant’s assistance at the hearing in November 2018, he had discussed his claims in English. The applicant was informed that the member would adjourn the matter if during the course of the hearing he felt the need for an interpreter. At the conclusion of the hearing the applicant acknowledged that he had been able to express clearly his arguments and felt he had communicated effectively. The Tribunal further found the applicant’s comments to be coherent and responsive to the questions asked. In addition the Tribunal took repeated steps to repeat information to clarify accuracy. The applicant was again represented by his registered migration agent at the hearing.

4. At the hearing the Tribunal discussed with the applicant country information regarding the general elections held in Fiji on 14 November 2018. The Tribunal also discussed with the applicant matters arising from his statutory declaration of 16 November 2018, country information relevant to his claims and details of the sugar organisation that he was a member of in Fiji.

5. The applicant provided to the Tribunal a further 17 folios of country information from and The Tribunal asked the applicant and his representative to identify whether the information related specifically to the applicant. The Tribunal was advised that it was general country information about the situation in Fiji and that there was information about his friend [Mr B], who died following a break-in in [Town 3].

CONSIDERATION, FINDINGS AND REASONS FOR DECISION

1. The issue in this case is whether the applicants meet the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Nationality

1. The applicants claim to be citizens of Fiji. They have produced their passports as evidence of their identity. The Tribunal accepts that the applicants are nationals of Fiji and also finds that Fiji is the receiving country for the purposes of s.36(2)(aa).

Credibility concerns

1. In determining whether an applicant is entitled to protection in Australia, the Tribunal must make findings of fact on the applicant’s claims. This involves an assessment of the applicant’s credibility and, in doing so, the Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility. The Tribunal is aware of the need and importance to be sensitive to the difficulties facing asylum seekers. However, the mere fact that a person claims fear of persecution or harm 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 reasons claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

2. Overall, the applicant’s evidence on central aspects of his claims inconsistent with his earlier statements and evidence, the Tribunal was unable to verify elements factual and it found many claims lacking in substance. The applicant was generally responsive to the questions asked of him at the hearing. The Tribunal is not satisfied that anxiety or a mental condition actively impeded or obstructed him from providing information in relation to the questions asked. The applicant provided minimal details to substantiate the central events to his claims, his actual evidence was brief and generalised, in contrast to his extensive written claims. The applicant provided several excuses for the identified anomalies in his written claims and his evidence to the Tribunal, that he was nervous and had lost his original notebooks with a complete record of dates. The Tribunal does not accept these explanations. The applicant was provided with a reasonable opportunity to present his claims at the hearings, he was asked on numerous occasions whether he had any additions, and dates were repeatedly clarified. At the hearing on 5 March 2019, the applicant further confirmed that he had never sought treatment for any memory-related condition and that he was not diagnosed with any conditions that could impact upon his memory. Although the Tribunal has accepted some of his claims, overall it finds that the applicant is not a credible witness and his claims are not reliable or credible for the specific reasons as set out below.

3. Firstly, at the Tribunal hearing the applicant was unable to provide an account of his experiences consistent with his written claims. Most notably he claimed to have only been harmed on three occasions when in his written claims he refers to four distinct incidents that caused him to fear harm in Fiji. He completely omitted any reference in his narrative of events at the first hearing to a claim that he was detained and beaten in 2014 when he was with SODELPA party members. The applicant has provided several lengthy and detailed statutory declarations with the assistance of his representative, which he could have accessed to refresh his memory proximate to the Tribunal hearing. He told the Tribunal that his initial declaration of 28 October 2015 had been prepared with the assistance of his alleged missing notebook. The purpose of the hearing was to explore with the applicant his claims and it is not unreasonable to expect that he would have anticipated being questioned on these matters. There is also no medical or other evidence to support his claim that he suffers from memory issues as a consequence of his experiences in Fiji. There was nothing in how the applicant responded to the Tribunal’s questions that raised concerns that his mental health was affecting his ability to answer questions or give evidence. His responses were appropriate given the questions. The Tribunal took care to corroborate the number of incidents with the applicant several times during the hearing and his inability to recall consistently the past events that led him to fear harm in Fiji undermines the reliability of the applicant and the reasons he claims to fear harm.

4. Secondly, not only did the applicant fail to recall the number of incidents that occurred but he also did not provide evidence consistent with his written claims regarding the dates and order in which they occurred. At the Tribunal hearing the applicant claimed that the incident in [Town 1] markets, which he documents in his statutory declaration of 28 October 2015, as having occurred on 12 August 2010 took place in 2014. Further, he gave evidence that an incident in [Town 2] occurred in 2009, when his statutory declaration places the incident in October 2013. The Tribunal has considered the submission by the applicant’s representative at the hearing that the applicant had merely swapped the order of dates of these incidents. This does not explain the inconsistency to the Tribunal as the dates are still not consistent with that set out in his original claims. Furthermore, the Tribunal considered that the order in which the applicant recalled matters at the Tribunal hearing was important because when asking the applicant to provide a narrative of his experiences it took care to ground the applicant’s description of the events with other incidents in his life proximate to the event in order to satisfy itself as to the applicant’s recollection of his experiences. For example the applicant’s evidence has always been consistent that he left his farm in 2010, and at the Tribunal hearing he placed an incident in [Town 2] in 2009, as he said he was still living on the farm. Further, when describing the incident at [Town 1] markets he recalled it was after his passport application in 2013 and one of the last incidents before he departed Fiji for Australia. The Tribunal acknowledges that the applicant was recalling events up to 10 years earlier. It has taken into account the possibility that some inconsistencies in his evidence could be due to the passage of time. However, the widely different recollection of the order and timing of these incidents suggests to the Tribunal that the contents of the particular claims had little basis in fact.

5. The Tribunal’s findings as to the credibility of the applicant were further reinforced when the totality of the applicant’s evidence regarding the individual incidents of harm which formed the basis of the applicant’s claims was considered. Thirdly, in his statutory declaration of 28 October 2015, the applicant has attributed various motives to his attackers for an incident that he claimed occurred when he was a sugar cane farmer in 2008. At the first hearing the applicant suggested a reason he was detained was because of his role on the sugar committee and his connection to the opposition party. When the Tribunal explored this role further it transpired that the applicant had only joined the committee the year before, and his position was on a sub-committee. No other member, committee members or sub-committee members were among the people he claimed to be detained with. It was curious to the Tribunal that the applicant would attract attention when his membership was only new and role minor. The Tribunal was also not satisfied that that the organisation in which the applicant claimed to be involved had a profile, such that it would provide a reason for the applicant to be detained. This is because the applicant has referred to the sugar organisation with which he claimed to be involved by several different names. In his statutory declaration of 28 October 2015 he set out the organisation as [Association 1]. At the hearing on 9 November 2018 he referred to it as a cooperative. In his statutory declaration of 16 November 2018, he referred to it as a sugar cane committee and sugar cane cooperative. When the Tribunal sought to clarify the name at the second hearing on 6 March 2019, he claimed it was called [Association 1 Alias]. As was discussed with the applicant at that hearing, the Tribunal could find no record of an organisation consistent with this name, either a trade union organisation, lending organisation or an industry organisation. The Tribunal discussed with the applicant reported organisations operating at the time of his claim such as the Fiji Cane Growers Association and the Sugar Cane Growers Council and he confirmed that he was not referring to these organisations. He said it was involved in [specified activities]. The applicant claimed that it was a national organisation and that it represented the majority members of cane farmers. On the information before it, the Tribunal was not satisfied that the group that the applicant claims to have joined had a national profile. Furthermore the Tribunal is not satisfied that as a relatively new member on this organisation on a sub-committee, the applicant had a profile that would be or interest to the authorities or anyone in Fiji.

6. Furthermore in relation to this incident, in his written claims the applicant has stated that his Lauan heritage and perceived support for Qarase were factors that brought him to the attention of the authorities. At the first Tribunal hearing when asked why he thought he was detained at this time, the applicant did not even raise these factors. This was in circumstances where at the commencement of the hearing the Tribunal had confirmed his birth and education in the Lau Islands. Upon this later being brought to his attention by the Tribunal, the applicant revised his evidence and said that this treatment was either because he was a member of the committee or that he was Lauan.

7. Fourthly, in his evidence to the Tribunal about his gathering with church colleagues in the village of [District 1], it is considered the applicant again exaggerated his profile. He told the Tribunal that at this time it was a completely different set of authorities that had detained him, from when he was taken from his farm in 2008. In addition, he was taken to a different army camp, in [Town 2] not [Town 1]. Yet when narrating the reasons as to why he was detained he offered that he was detained because they had told him before, that is in 2008 when he was taken from his sugar farm, that he was not to make any meetings. He said that told him they had warned him before that he was not to campaign against the government. In his narrative of events regarding the 2008 incident he had not spoken about the threats that he was, in his oral evidence at the hearing on 6 November 2018, claiming led to his second detention. It appeared to the Tribunal that in his account to the Tribunal that the applicant was embellishing his narrative on the run.

8. Also regarding this incident, in his statutory declaration of 28 October 2015, the applicant had claimed that he was doing his normal duty of visiting people in remote areas at this time. In his evidence at the first hearing, he claimed at the time the meeting was to form a religious campaign for his church group to establish a new church and get a minister to come to the village and preach. The Tribunal considered that this was a significant difference that the applicant was trying to attach to the importance of the event, and his subsequent claims flowing from it that he was targeted because he was a member of Seventh-day Adventist Church. Particularly when pressed by the Tribunal, the applicant also conceded that he did not have any formal role in the church at this time. It appeared to the Tribunal that he was inflating his status and the reasons he may have attracted the attention of officials in order to support his protection claims. Other discrepancies raised concerns for the Tribunal, for example he claimed that he was called out because he was preaching. Once more the Tribunal considered a claim that the applicant was preaching was different to a normal duty of visiting. He told the Tribunal at the hearing that he was taken away with two others. In his statutory declaration of 28 October 2015, the applicant set out that he was detained at the time of this incident with three others. Once again the applicant’s description of the event to the Tribunal was that he was taken to the army camp and beaten, yet despite great detail present in his statutory declaration of 28 October 2015, in his oral evidence he offered little detail of what actually occurred.

9. Fifthly, leaving aside the error of the applicant at the first Tribunal hearing with the date, placing the incident in 2014 instead of 2010, in his description of his experience at [Town 1] markets it is considered again the applicant has concocted a profile. The applicant links the authorities’ suspicion of him to taped interviews of Suliasi Daunitutu critical of the Bainimarama government, that he claims the authorities suspected him of distributing. The Tribunal had concerns regarding the alleged timing of this event. At the second hearing on 6 March 2019, the applicant that the notebook he had kept in Fiji formed a contemporaneous record of events for his statutory declaration of 28 October 2015, this is the record that the applicant maintains was the accurate date of the events. In this statutory declaration, the applicant claims that this incident occurred on 12 August 2010. However, as discussed with the applicant at the second hearing on 9 March 2019, the Tribunal was unable to verify the existence of the recordings by Daunitutu in August 2010. The recordings of the video accessed by the Tribunal document that they were published on 27 November 2010.[3] Further they are not reported to have been distributed to Fiji until early the following year.[4]The Tribunal put to the applicant that in these circumstances it did not seem plausible he would be detained for this reason. The applicant did not offer any evidence supporting the existence of the tapes in August 2010, and instead responded that he did not know why the army officers had said these things to him at the time, and suggested that the suspicion may have been because he was joining ex-prisoners. The Tribunal did not accept this explanation. The applicant’s statutory declaration clearly states that the tapes were around at the time,[5] and he made a further reference in this document to the officers saying that the Australian government and Daunitutu could not help him out to take the videos around to people.[6] Overall the Tribunal was not as to the accuracy of the applicant’s claim regarding this event.

   [3] Published on Nov 27, 2010, Mr. S. Daunitutu’s 1st interview. 1 of 6 of the first Video Broadcast regarding the December 2006 coup to November 2010 in the Fiji Islands 25 February 2011

   [4] Statutory declaration of the applicant dated 28 October 2015, paragraph 37 and 38.

   [6] As above at paragraph 39

1. Sixthly, the applicant has repeatedly raised that one of the reasons he was targeted and subjected to harm was his profile as being anti-government and supporting the opposition SODELPA party, formerly the SDL. In questioning the applicant about his experiences he was asked about his experiences and role in the SDL, and yet in his narrative at the first Tribunal hearing of the incidents of harm that had occurred when he was in Fiji, he omitted any reference to a meeting at his home in [Town 2] with six party members to discuss the new name for the party, as was described in his statutory declaration of 28 October 2015. When this omission was pointed out to him at the first hearing, the only comment the applicant offered was that this had happened too. The Tribunal did not consider this to be a plausible explanation for the omission. This is because at the hearing the applicant had been questioned regarding his involvement with the SDL. This particular incident according to the written claims was of the applicant occurred in his own home, less than 6 months prior to his departure from Fiji. It was also alleged to be time where he claimed significant physical violence including being kicked, beaten and spat upon. The fact that he did not recall this incident when narrating his experiences in his evidence at the Tribunal hearing indicates that the incident was a fabrication intended to boost his claims for protection. The Tribunal is not satisfied that it occurred.

2. Seventhly, supporting the Tribunals finding above is the claim that by the applicant this alleged meeting with SDL members [in] July 2014 was to discuss the new name for the party, and for him to assist them to go see people in rural areas and to let them know about the status of the party, the change from SDL to SODELPA.[7] As discussed with the applicant at the second hearing, the party was renamed some considerable time before this meeting, and it is expected that such consultations would have taken place around this time. According to country information, in January 2013, the Fijian government enacted new regulations governing the registration of political parties, and it was a requirement that all parties be named in English.[8] According to an ABC News article, dated 27 February 2013, SODELPA ‘formally lodged its application for registration on Tuesday [i.e. 26 February 2013], presenting the electoral office with a list of 8000 members, which is 3000 more than required under the decree.’[9] The Judicial Department of the Fijian Government announced in a press release dated 5 March 2013, that SODELPA had been registered under the Political Parties (Registration, Conduct, Funding and Disclosures) Decree.[10] When this country information regarding the name change was discussed the applicant at the second hearing, he agreed that it had taken place the year before, however he suggested that the people were not educated enough in the villages. The Tribunal does not accept this response. The Tribunal is not satisfied that a meeting, to discuss the name change with the applicant would have taken place more than twelve months after the event. Furthermore the applicant has maintained that he was only a low-level member of the SDL and he was not politically active. He was also not a village chief and claims his heritage is in the Lauan Islands not in the province of Ba. With this profile, the Tribunal is not satisfied that he would be involved in consultations regarding the party name change and educating villagers.

   [7] Applicant’s statutory declaration dated 28 October 2015 at paragraph 57.

   [8] accessed at CIS36DE0BB2076

3. Eighthly, the Tribunal considers that the applicant has exaggerated his claims about his political involvement in Australia in order to bolster his claims for protection and is not satisfied that he has any genuine interest in Fijian politics or a political profile in Australia. His evidence as to his actual involvement with the relevant organisations was assessed as minimal. It also appeared to the Tribunal that he had little appreciation for the aims of the groups he had associated with. For example, in his statutory declaration of 28 October 2015, the applicant set out that he was worried about his association with Ms Mereoni Kirwin and that he had paid his fees and was a registered member of her group, and that the Fiji government knew that he was associated with the group. He interjected several times in his evidence at the first hearing that he was supporting Ms Kirwin in Australia and raised this association. Yet at this same hearing asked whether he had actually joined any group associated with Ms Kirwin, and his response was that he had only attended meetings, the Tribunal considered this to be low level activity. The evidence at hearing provided of his activity was first attending a meeting in 2015 with a group he identified as the Fiji Democracy Group. At some point he made a donation of $50.00, and his last meeting was in 2017. He only gave details of these two specific meetings. The applicant also said at hearing the meetings he attended were mostly about helping people facing sedition charges in Fiji. In response to Tribunal questioning about the aims of the organisation, his response was that it was a movement to support all the people in Fiji and the democratic right. The Tribunal did not consider this to be consistent with the reported aims of the group. The 2017 DFAT report which provides information about the Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI) and Ms Kirwin, and in particularly that they have been associated with attempts by individuals in Fiji to form a Christian state in Ra and Nadroga.[11] In respect  of those charged with sedition, a topic which the applicant claims was discussed at the meetings he attended, it is also reported Further, that on 16 August 2015, 16 people were arrested in Nadroga-Navosa province in Fiji for causing communal antagonism and sedition for signing the ‘Provincial Institutions of Self Government’ of the Nadroga Navosa Christian State and that during the week of 10–15 August, a further 37 individuals associated with the Ra Sovereign Christian State were arrested.[12] When the Tribunal put this information to the applicant for comment at the first hearing, and further information that the people in Fiji who claimed to be supporting Ms Kirwin were trying to establish an independent Christian state of Ra, the applicant responded that the organisation had nothing to do with a Christian state and it was just for the right of the Fijian people. Although the applicant had referred to “Ra group”[13] in his statutory declaration of 28 October 2015, it would appear that he had no understanding of their Christian separatist aims and the Tribunal questions whether he actually ever supported them. This is also important because the applicant has repeatedly suggested that the Fijian government is suspicious of him because of his association with some of those charged with sedition, and supported by Ms Kirwin, Ratu Tevita Mekauta and Apolosi Qalilawa, he claimed to have attended meetings about them and made donations to their legal proceedings. When the Tribunal discussed with the applicant reported court outcomes for Apolosi Qalilawa[14] and Ratu Tevita Mekauta, [15] and details of their particular charges the applicant indicated he was not aware of the information. His explanation for this lack of knowledge at the hearing was that he had not followed things from Australia. The Tribunal did not accept this because the applicant was relying on claims of close connection to found his claims for protection. The Tribunal considered that this further demonstrated that the applicant had invented many of the attributes of his claims. The Tribunal doubts whether the applicant was ever associated with these individuals and it is not satisfied that the claims of a close connection are reliable. The Tribunal has made this finding it also is not satisfied as to the veracity of his claims regarding a close connection with those charged with sedition from a past association. His connection to Mr Mekauta is because he was [an office bearer] of the sugar cane committee of which the applicant was on the sub-committee. The applicant has said that Mr Mekauta was chairman from 2010 to 2011. Yet the applicant left sugar cane farming in 2010, and claimed he attended his last meeting in 2010. Additionally, as the Tribunal stated above could find no reference to a national [Association 1 Alias] organisation. The applicant is further considered to have greatly exaggerated his connection to Apolosi Qalilawa, from being a Seventh-day Adventist minister that he knew of, to someone that he claimed at the first Tribunal hearing that he saw regularly as he came to church meetings in his district, worked with the applicant in the prison ministry and took him to visit George Speight. Overall the Tribunal considered the applicant greatly embellished his claims relating to his political activities in Australia and his close association with any person accused of sedition.

   [11] “DFAT Country Information Report Fiji 27 September 2017”, Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787 at 3.51

   [12] As above at 3.52.

   [13] Paragraph 130, statutory declaration of the applicant dated 28 October 2015.

   [14] >

   Ninthly, following the hearing on 9 November 2018, after the Tribunal had raised issues of credibility and tested the applicant’s evidence regarding his association with Ms Kirwin the applicant gave a contrary statement distancing himself from Ms Kirwin. In his statutory declaration of 16 November 2018, after earlier identifying at the hearing on 9 November 2018 that he had only attended meetings of the Fiji Democracy Group, he set out that he did not know which one of Ms Kirwin’s groups he had joined. He also stated that he had left the group following a split with another member regarding funds to support the sedition case in Fiji and he did not want to support Ms Kirwin anymore.[16] It was considered that these changes in his claims regarding his association with Ms Kirwin were indicative of the applicant’s repeated attempt to tailor his evidence to address perceived inadequacies and generate grounds to found a protection claim. This further supported the finding of the Tribunal that the applicant’s claims were unreliable.

   [16] Paragraph 15, statutory declaration of the applicant dated 16 November 2018.

4. Tenthly, the applicant’s evidence regarding his involvement with SODELPA, his understanding of the party and political events in Fiji, further undermined his credibility and the reliability of his claims. When first discussing his involvement with SODELPA at the hearing the applicant said that he had attended three meetings in Australia, one in February 2016, a meeting in 2017 and his last meeting was April 2018. In response to concerns put to the applicant at the hearing on 9 November 2018 regarding his level of activity, he claimed that sometimes he could not attend SODELPA meetings because he was involved with Ms Kirwin. The Tribunal did not accept this excuse because at the same hearing he also stated that in 2017 he left Ms Kirwin’s group to join the big group SODELPA so that “we could raise our voice”. Further as discussed above the Tribunal considered that he had minimal involvement with Ms Kirwin’s group. Additionally, when the Tribunal put to the applicant that Ms Kirwin’s organisation and SODELPA were very different organisations, the applicant rejected this proposition claiming that they were all the same. This is not consistent with country information and the Tribunal again notes the 2017 DFAT advice that the SODELPA party officially denied any links to the groups involved with Ms Kirwin, PISAI and FDFM.[17]  If there was any genuine level of commitment or serious engagement by the applicant with the Fiji political organisations he claims to support in Australia, it is expected that he would be aware of this. This is also a potent reason why the Tribunal does not accept the claim by the applicant that he was that he joined SODELPA as he wished his voice to be heard and also that he was involved in fundraising, donations and supporting the party for the election.[18] The Tribunal also found it curious that despite his claimed involvement with the party, and support for the party at for the election, he had not attended a meeting since April 2018 and nothing proximate to the important event of the Fijian elections on 14 November 2018. The Tribunal finds that the applicant has greatly exaggerated his political involvement in Australia and association with SODELPA.

   [17] “DFAT Country Information Report Fiji 27 September 2017”, Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787 at 3.53

   [18] Paragraphs 2, 3 and 11 statutory declaration of the applicant dated 9 November 2018.

5. In assessing the totality of the evidence the Tribunal does not accept that the applicant previously experienced harm in Fiji on any occasion. The applicant is considered to be an unreliable witness who has invented many elements of his claim. Nevertheless, the Tribunal does accept some of the information presented by the applicant regarding his personal profile and has assessed these factors in order to determine whether he would be at risk of any harm if returned to Fiji.

6. It is accepted that the applicant was a sugar cane farmer and that he worked land that had been given to him by his father-in-law. Regard has been had to the articles submitted by the applicant reporting cane fires and the government response. It is accepted that if there were fires in the area proximate to the applicant’s farm it is possible that the applicant could have been questioned by the authorities at this time. However, due to the findings as to the applicant’s reliability as a witness as set out above, the Tribunal does not accept that he was detained as he had claimed, that he was taken to a [place] some distance away in [Town 1] or stripped naked and further assaulted. The applicant has left cane farming in 2010 and resigned from any committees involving sugar cane farmers from 2011. The Tribunal was unable to locate any evidence to suggest that the organisation that the applicant was associated with had a profile in Fiji or that current or former sugar cane farmers had an adverse profile in Fiji. As the Tribunal does not accept that the applicant suffered any harm while he was a farmer the Tribunal also does not accept that he left farming for this reason. The Tribunal is not satisfied that due to his past experience as a farmer and having involvement in a cooperative, he would be of any interest to anyone, or that for this reason he would face any harm, if he returns to Fiji now or in the foreseeable future.

7. The Tribunal accepts that the applicant was born on the Lau Islands, as was the former Fijian prime minister, Laisenia Qarase. It does not accept that for this reason he was ever targeted because he was perceived as anti-government. The applicant did not demonstrate any personal connection to Qarase, and gave evidence that he had never publically agitated against the government. The Tribunal was able to locate information about individuals from Lau, being members of the FijiFirst Party, and serving in prominent positions in government, such as Jiko Luveni the former Chairperson of the Lau Provincial Council.[19] In response to this information when put to him at the hearing the applicant dismissed it as relevant and claimed that she held her position due to her husband having connections to the military. The Tribunal is not satisfied that this explains her position given her prominence as a Minister and Speaker of Parliament. Although the applicant claimed that there were news and stories of people from Lau Islands being targeted in Fiji as it was seen as a SDL and SODELPA stronghold, the Tribunal has not been able to find any independent country information to support the claim that people from the Lau Islands generally are targeted, or that they can be physically distinguished from other native Fijians. The applicant has also not provided any corroborative information. The Tribunal also does not accept the claim by the applicant that these things are hidden in Fiji or subject to suppression in Fiji. The Tribunal is confident that DFAT and other government and humanitarian organisations undertake their assessments based on a wide range of independent sources. It is not satisfied that its assessments are based on the views of the government in Fiji. Therefore the Tribunal does not accept that by reason of being born in the Lau Islands, the applicant would be perceived as being against the government. It also does not accept on the available country information that people from the Lau Islands are targeted by the government of Fiji and are seen to be politically opposed to the current Fijian government. The Tribunal also does not accept that people from the Lau Islands experience discrimination in Fiji, or that the applicant has experienced harm in the past or that there is a real chance he will face any harm in the future due to his Lau Island heritage, if he returns to Fiji now or in the foreseeable future.

   [19] >

   In addition to the applicant’s Lau Island heritage the Tribunal has considered the circumstances of the applicant on the basis that he is an indigenous Fijian. The applicant has made claims that the indigenous Fijians were a minority in the 2014 elected Bainimarama government, that there were no indigenous rights and that the State was discriminating against the rights of indigenous Fijians in favour of indo-Fijians. He claimed that there were only two indigenous Fijians within the former parliament. The Tribunal is not satisfied that this claim had any basis in fact and it is again an example of the exaggeration employed by the applicant in relation to his claims. At the first hearing he would not be dissuaded in his evidence despite the Tribunal putting to him independent country information that of the 2014 elected 50-member Parliament there were only 16 Fijians of Indian descent, and six ministers in the 13-member Cabinet were Indo-Fijian.[20] The applicant raised claims about the current government of Fiji wanting to take indigenous land rights, and concern of the operation of the iTaukei Land Trust Board, yet could identify no specific incidents relating to him. He argued that Indo-Fijians in ministerial roles in the current government demonstrated that the government minimise the influence of indigenous Fijians in institutions of government power. As was discussed with the applicant at hearing, the Tribunal considered that the representation of Indo-Fijians in government was also reflective of the fact that they comprise 37.5 per cent of the population of Fiji.[21] The applicant has not provided any specific examples of alleged discrimination directed towards him. The Tribunal has had regard to the assessment in the 2017 DFAT report that the overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. With respect to land rights indigenous Fijians communally hold approximately 87 per cent of all land, and that in rural and outlying areas, such as where the applicant hails from, indigenous Fijians are in the majority and unlikely to be the victim of discrimination.[22] Furthermore DFAT assesses, that there is no official discrimination against indigenous Fijians and there is a low level of societal discrimination against indigenous Fijians.[23] In circumstances where the Tribunal is not satisfied that the applicant has identified any incidents of official or societal discrimination directed against him, where the overall risk is assessed as low,  the Tribunal is not satisfied that there is a real chance the applicants will suffer any serious harm or significant harm on return to Fiji for reason of him being an indigenous Fijian.

   [20] Advance unedited version. Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Fiji’, United Nations Human Rights Council, 12 June 2017, p.12 paragraph 45, CISEDB50AD5940; ‘Members of Parliament’ n.d. [current], Parliament of the Republic of Fiji, CISEDB50AD6086;

   [21] “DFAT Country Information Report Fiji 27 September 2017”, Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787 at 2.14

   [22] As above at 3.15

   [23] As above at 3.16

1. The Tribunal accepts that the applicant is of the Seventh-day Adventist religion and it has considered his claim that for this reason he was targeted because most people are Methodist. The Tribunal could find no independent country information to support his claims that members of the Seventh-day Adventist religion were targeted in Fiji, and the applicant has not presented any. It is accepted that the majority of Christians in Fiji are Methodist. However, the Tribunal notes from the 2017 DFAT report that the 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion and that the Constitution provides specifically for protection from religious discrimination. Freedom of religious belief is reported as being widely respected in practice in Fiji.[24] Further in October 2015, retired Major-General Jioji Konrote, a Seventh-day Adventist, was elected as the country’s first non-Methodist President.[25] The Tribunal is not satisfied from the claims and evidence presented by the applicant that he has demonstrated that in the past he was unable to practise his religion freely in Fiji. The Tribunal is satisfied that he was able to attend and worship as a Seventh-day Adventist, he attained the position of elder, contributed to and raised money for his church, and also participated in a prison ministry. The Tribunal accepts that certain public gatherings required a permit from authorities in Fiji, under the Public Order (Amendment) Decree 2011 and that at times they can be withheld or issued with strict conditions. In these circumstances it is accepted that public gatherings that the applicant wished to attend may have in the past not been permitted in [District 1] or somewhere similar. However due to the concerns regarding the applicant’s credibility as set out above it does not accept that he was ever detained or suffered harm on any occasion for this reason. The applicant has not demonstrated that the requirement for a permit for a public gathering is anything more than a law of general application and on the material before it, the Tribunal is not satisfied that if he returns to Fiji there is a real chance that he will suffer serious or significant harm as a consequence of his Seventh-day Adventist religion.

   [24] As above at 3.17

   [25] As above

2. It is accepted that the applicant has participated in Christian prison ministry visits and has worked with ex-prisoners to find them employment in Fiji in the past. The Tribunal has reviewed the information supplied by the applicant at the hearing on 9 March 2019, and was unable to find a reference to [Mr B] detained at [Town 1] markets with the applicant or a clear connection to the applicant, in that material. Nonetheless it is also accepted that some of the men that the applicant may have visited with in or out of prison may have some notoriety, such as George Speight, or have come to the further attention of the police and authorities in Fiji for reasons specific to their offending. However the Tribunal is not satisfied from the evidence of the applicant that he has suffered harm in the past due to this activity or that he was seen as opposing the government or the authorities in Fiji. As the Tribunal does not accept that the applicant was ever harmed in the past in Fiji it does not accept that he was ever detained while working on his farm or at [Town 1] markets, due to his prison ministry work. The Tribunal accepts that the applicant may continue to undertake this work in the future if he returns to Fiji but is not satisfied that there is a real chance the applicant will suffer serious or significant harm as a consequence of this activity.

3. The Tribunal accepts that the applicant has also attended meetings with Mereoni Kirwin,  the Fiji Democracy and Freedom Movement (FDFM) or the Pacific Indigenous Samaritan Association (PISAI). It is not satisfied that the applicant has any meaningful involvement with the organisation other than his presence at a few meetings. The applicant demonstrated in his evidence little knowledge of the aim and objectives of either organisation. While he may know who they are, for the reasons set out above, the Tribunal is also not satisfied that the applicant has any meaningful relationship with those charged with sedition. At the hearing on 9 March 2019 the applicant confirmed, and the Tribunal finds, that he does not have any interest in being involved in the Ra seditionist group in Fiji. Further on the evidence he has not had any involvement with FDFM or PISAI since 2017.  The Tribunal also accepts the applicant’s evidence that he did not want to support Ms Kirwin anymore. The Tribunal is not satisfied that the authorities in Fiji would be monitoring any activity of the applicant as a consequence of him attending a few meetings and making a small donation. He claims to have never publically criticised the government in Fiji. DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter.[26] When this overall low risk is assessed in the particular circumstances of the applicant, the Tribunal is therefore not satisfied that there is a real chance that the applicant will suffer serious or significant harm if he returns to Fiji now or in the reasonably foreseeable future due to his association with FDFM or PISAI, seditionists for the independent nation of Ra or Ms Mereoni Kirwin.

   [26] “DFAT Country Information Report Fiji 27 September 2017”, Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787 at 3.56

4. It is accepted that the applicant has in the past supported the SDL and has in Australia joined the SODELPA party. The Tribunal is not satisfied that the applicant has suffered any harm in the past as a member or supporter of the SDL or SODELPA. At the first hearing, the applicant expressed concern that the SODELPA party leader Sitiveni Rabuka would be imprisoned and unable to contest the elections. However, country information reports that Mr Rabuka was elected to the Fiji parliament, the SODELPA party actively contested the November 2018 elections, while not victorious, SODELPA did attract a significant percentage of the vote (39 per cent) and succeeded in obtaining an additional five seats.[27] Despite the applicant’s claims of the elections being influenced by the successful FijiFirst party, and his assertion that Fijian voters were being threatened that to vote for the opposition would be a knife to their throat, it is reported that the Multinational Observer Group found the 2018 elections to be transparent and credible overall with the outcome broadly reflective of the will of the Fijian people.[28] The Tribunal does not accept the applicant’s claim that the Multinational Observer Group is controlled by the government. Further, the Tribunal has also considered the 2017 DFAT report, which it considers reliable, where it is assessed that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed.[29] In the circumstances of the applicant, he only claims to be a member and not a politically active person. He has not run for office and did not engage with the party in the lead up to the elections. While the Tribunal accepts that the applicant may hold views that are critical of the Fijian government, it does not accept that he would be motivated to engage in public political activity or any other activity that would expose him to a real chance of serious harm or significant harm in Fiji. In making this finding the Tribunal has also considered the claim of the applicant that the Fijian government is monitoring SODELPA on social media. In response to questions from the Tribunal the applicant did not identify that he had himself made posts critical of the government of Fiji on social media, he had only read them. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm on the basis of his membership of, or support for, SODELPA or former membership of the SDL on return to Fiji.

   [27] CXBB8A1DA38778: “FijiFirst on 27 seats, SODELPA 21 and NFP secures 3”, Fiji Broadcasting Corporation Limited (FBCL), 19 November 2018.

   [28] 2018 General Elections Final Report of the Multinational Observer Group, Executive Summary at page 6.

   [29] “DFAT Country Information Report Fiji 27 September 2017”, Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787 at 3.46

5. The applicant also expressed a generalised fear of insecurity in Fiji, including abuse of authority and people’s rights by the government and the military, with the police killing people who ask for help and the military being in control of everything. As discussed with the applicant, according to country information, including the 2017 DFAT report, Fiji is generally stable and secure.[30] Notwithstanding the applicant’s suggestion that coverage of military and government activity was suppressed in Fiji, the Tribunal considers that there is not a real chance that someone without a profile in Fiji, such as the applicant, would face serious or significant harm from the Fijian military or government if they returned.

   [30] Opcit at 2.43

6. The Tribunal has considered the applicant’s claim that he was prohibited from leaving Fiji in the past, particularly around 2013. The applicant confirmed in his evidence that he was able to renew his passport in 2013 without incident. He confirmed that the issue was his inability to obtain a visa for Australia. The Tribunal accepts that the applicant may have been unsuccessful in a past attempt to obtain a visa for Australia. However, it is not satisfied that this was for reasons other than failing to satisfy the relevant administrative requirements of the Australian government for the visa, and does not accept on the evidence the applicant’s claim that the government would not allow him out of Fiji. The Tribunal is not satisfied that the government of Fiji would have any interest in the applicant.

7. The applicant has also raised issues of unemployment and that financially it would be hard for him to return to Fiji. In Australia the applicant is working in a [workplace], and has obtained relevant [qualifications]. The Tribunal accepts that the applicant may find it difficult to find work given he is over the compulsory retirement age of 55 years that generally applies to permanent public employment. There is provision in Fiji for casual public employment and no restriction on work in the private sector. The Tribunal is not satisfied that there would be any impediment to the applicant returning to his former occupation of [Occupation 1]. The applicant wife is [age], below the retirement age and has skills and experience working in [Industry 1] in Australia. The applicant has a large family to assist with support in Fiji including [a number of] children and [many] grandchildren. It is accepted that there are challenges with employment in Fiji, but he has done so in the past. It may not be the same as his employment in Australia or as well remunerated. However the Tribunal is not satisfied that there is a real chance that the applicant would not be able to subsist given his previous employment, the ability of the applicant wife to work, the support of his adult children, and his previous ties to his church community, or that he faces a real chance of serious or significant harm for this reason.

8. The Tribunal has carefully considered the applicant’s claims individually and cumulatively, and the available country information. The Tribunal is not satisfied on the information before it that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future by reason of his involvement with the sugar cane committee, his Lau Island heritage, his being an indigenous Fijian, his religion, his involvement with the prison ministry, any imputed political opinion, and employment prospects or any other reason he has claimed. The Tribunal is not satisfied that the applicant is a refugee.

   Does the applicant meet the complementary protection criterion?

9. The Tribunal has also considered the applicant’s claims against the complementary protection provisions of the Act. For the reasons given above the Tribunal also does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that he will suffer significant harm by reason of his former involvement with a sugar cane cooperative of farmers, his Lau Island heritage, his being an indigenous Fijian, his religion, his involvement with the prison ministry, membership of the SDL or SODELPA, his association with PISAI, FDFM or Mereoni Kirwin, or any imputed political opinion, or his employment prospects, that the applicant will be subjected to significant harm. The Tribunal does not accept that he will be arbitrarily deprived of his life, have the death penalty carried out, be subject to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. As set out above the applicant has a home, family structure, church community and several skills he and the applicant wife can apply for their support. The Tribunal is also not satisfied that he will experience significant harm for any other reason. He therefore also does not meet the complementary protection criterion.

   Medical claims on behalf of the applicant son

10. The applicant wife and applicant son have not themselves made any specific claims. The Tribunal has been provided with medical reports for the applicant son and accepts from the evidence before it that he suffers from [Medical Condition 1], that he is diagnosed as having an intellectual disability and he has had medical treatment for this condition in Australia. The applicant made a claim at the hearing that the applicant son’s medical condition was caused by the military government in Fiji because he had not received appropriate medical treatment as this was not possible in Fiji since the coup in 2006. The Tribunal does not accept this claim as reliable. The applicant has submitted that the applicant son should have been diagnosed while he was an infant, however he also gave evidence that until the applicant son suffered a seizure while in Australia in 2014 they had no idea that he suffered from any medical condition. In further evidence the applicant said that because of the pressure on the family due to the applicant’s situation they were not aware of the health issues of the applicant son. Although the Tribunal has not accepted the incidents of harm as claimed by the applicant, it is not satisfied from the evidence that attempts were made to access relevant medical services for the applicant son.

11. Further, as the Tribunal put to the applicants, the evidence before the Tribunal didn’t indicate that they would be unable to get medical treatment in Fiji. Other than speech therapy which the applicant son was not currently accessing the applicant did not identify any current ongoing medical intervention for his son. As discussed with the applicant at the hearing on 6 March 2019, the country information indicates largely free and generally effective healthcare is generally available in Fiji. Specifically, the Fijian government provides generous public health services, including free primary and secondary health care. However, X-ray and other support services are not generally subsidised.[31] There is a government Free Medicine Scheme for low-income individuals.[32] There are five main hospitals in Fiji, four of which are state-funded institutions, and one – Suva Private – is a commercial facility. Fiji has an estimated 2.1 hospital beds per 1,000 population and spent about three per cent of GDP on health in 2014, figures which are comparable to regional averages.

    [31] Opcit at 2.24

    [32] “DFAT Country Information Report Fiji”, Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787 at 2.25; “How to Benefit from Government’s Free Medicines Programme: Akbar”, DEPTFO News, Fiji Sun, 16 February 2017, CXC90406614206

12. There is no evidence before the Tribunal that the applicant son would be denied access to health care in Fiji. The applicants have not demonstrated that the condition of the applicant son could not receive necessary treatment in Fiji. The Tribunal is not satisfied that the applicant son is at risk of being denied medical treatment in Fiji for one of the reasons in the refugee definition. Having considered the evidence about the medical conditions of the applicant son, the Tribunal is not satisfied that there is a real chance the applicant son would be persecuted in Fiji for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

13. With respect to the complementary protection criterion, the Tribunal is not satisfied that there is a real risk that the applicant son will be exposed to significant harm for reasons relating to his medical conditions. In any event, the Tribunal notes that any difficulties which might arise for the applicant son due to the general standard of Fiji’s health system which might result in harm for the applicant son are not matters that would fall within the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act for the purpose of the complementary protection criterion. This is because the harm envisaged is simply a product of resources allocated to the health system and not an act or omission intended to cause harm. Accordingly, any harm would not be torture or cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor would the harm fall within any other category of significant harm for the purposes of the Act.

    The applicant wife and applicant son

14. Other than the implied claim discussed above, the applicant son and applicant wife have made no specific claims for protection and there is no other information that they have suffered harm in the past in Fiji for any reason. As the Tribunal has not accepted the claims of the applicant it does not accept that the applicant wife or applicant son will suffer serious or significant harm arising from any implied claims on the basis of their association with the applicant.

15. Therefore, the Tribunal finds that the applicant wife and applicant son do not have a well-founded fear of persecution for a Refugees Convention reason and is not a refugee.

16. Furthermore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife and applicant son being removed from Australia to Fiji, there is a real risk that they will suffer significant harm as defined in s.36(2A) of the Act.

    Conclusion

17. 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 under s.36(2)(a).

18. Having concluded that the applicants do 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).

19. The Tribunal is also not satisfied that any of the applicants satisfy 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 applicants do not satisfy the criterion in s.36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Penelope Hunter

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.

…

The Australian, ‘Perfect one day, brutal the next’, July 5, 2010, Public Order Amendment Decree 2012

In the comments section: Speight: Military pissed about pro-democracy DVD by Permalink Reply by Suliasi Daunitutu on February 25, 2011 at 4:27pm
“Yeah, I think Bruce there’s a dvd that was prepared in Australia by the freedom community in Australia who are in the struggle for the return of democracy to Fiji and they’ve prepared a documentary in the Fijian language on certain important issues that were happening in Fiji prior to the coup 2006 and our information giving it a true state of the country economically and so forth. This was on this particular dvd which was sent to us in December, and which was circulated to supporters of the SDL party in the rural areas.”; ‘Activist uses DVD to get around media censorship in Fiji’, 28 February 2011

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1617222 (Refugee) [2019] AATA 4320

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Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

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