1617767 (Refugee)

1617767 (Refugee) [2019] AATA 4427 (13 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617767
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Luke Hardy
DATE:13 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 March 2019 at 3:40pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political membership and activity – credibility – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Fiji. He was granted a three-month tourist visa for Australia in Suva on 12 April 2016. He entered Australia [in] May 2016. He lodged a protection visa application on 29 July 2016. The Minister’s delegate refused to grant the visa on 12 October 2016. [The applicant] then sought review by this Tribunal.
[The applicant] was originally invited to attend a hearing before the Tribunal on 28 November 2018. The hearing was postponed due to unforeseen and unavoidable circumstances.
The hearing was then set for 20 December 2018. On that day, [the applicant] intended to present as a witness Ms Oni Kirwin who he had previously named as his authorised recipient for the purposes of correspondence with the Tribunal. It is not necessarily a conflict of interests for a person to be both of these. However, in his review application, [the applicant] had named Ms Kirwin both as his “representative” (MRD file at f.46) and as his “authorised recipient” who he did not wish to appoint as his representative (MDR fil at f.49). Ms Kirwin’s standing was not necessarily unambiguous. Under oath at the hearing, [the applicant] said that he had paid Ms Kirwin a sum of money to prepare his protection visa application forms for him. This seemed a potential concern because Ms Kirwin was not identified as a registered migration agent. [The applicant] told me he was also a paid-up member of a socio-political organisation headed by Ms Kirwin that was arguably the focus of his substantive claims, to date. There appeared here to be a question as to whether an unauthorised person had received money from [the applicant] for the purposes of providing assistance and/or advice with the lodgement of his protection visa application.
I proposed adjourning the hearing so that [the applicant] could confirm unambiguously that Ms Kirwin was not his representative.
We attempted to resume on 5 February 2019 but I adjourned on advice that the interpreter was acquainted with the parties.
The hearing went ahead on 14 February 2019. Ms Kirwin attended as a witness and, given that the organisations she founded appeared to be central to [the applicant]’s claims, I agreed to hear her evidence and arguments. She told me at the hearing that she had shared the job of assisting [the applicant] in his protection visa application form with two other “volunteers”. However, [the applicant] told me he paid Ms Kirwin $500.00 for her service including his membership fee for the Pacific Indigenous Samaritan Association Inc. (PISAI), but she said he only had to pay $50.00 to join that organisaiton, of which she is director, and $35.00 lodgement fee to the Department of Home Affairs (the Department). She also said that after she came back from a visit to the UK she learned that the organisation needed extra money for rent and for preparation of [the applicant]’s protection visa application. Throughout this part of the discussion, Ms Kirwin appeared confused and occasionally digressive. She denied she had ever asked [the applicant] for $500.00 but said that she had needed to photocopy 400 pages of material. When I asked her where in [the applicant]’s protection visa application I might find 400 pages of photocopied material, she said that this was a total for photocopying undertaken on behalf of several protection visa applicants.
At the 14 February 2019 hearing, [the applicant]’s wife attended in a social support capacity. The hearing was facilitated by a telephone interpreter in the Fijian-English medium.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision which contains an uncontested summary of his oral evidence given at interview on 26 September 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee r, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In his protection visa application form, [the applicant] claimed to have been born in [City] and raised in [Village 1], [District], in Ba province, which lies between the two provinces of Nadroga & Navosa and Ra. He claimed he lived in [Village 1], [District], in Ba province from 1993 to 2016. He claimed to have done his primary and early secondary school in [Village 1], [District], in Ba province. He claimed to have attended senior secondary school in [Village 2] in neighbouring Ra province. He claimed to have studied at [an educational institution] near Suva, in 2012. He claimed he then studied [Subject] at [an educational institution] in 2014. He claimed never to have worked in Fiji, having lived continuously as a student, supported by his parents who, he said, resided in [Village 1] in [District] of Ba province, before coming to Australia. He declared that he was assisted in the completion of his protection visa application form by Ms Oni Kirwin. I note that Ms Kirwin compiled two statements of claims on behalf of [the applicant]
Speaking to the reasons for his protection visa application, [the applicant] said he was a supporter of Christian secessionist movements in the two almost neighbouring provinces of Nadroga & Navosa and Ra. He said these movements were being closely monitored by the twice-elected government of Prime Minister Bainimarama (referred to in his application as the Bainimarama regime). He claimed he also associated himself with Ms Kirwin who had been warned by PM Bainimarama of the harm that awaits “us” (secession supporters) if we go back to Fiji. He said he feared brutality and violent treatment in the event of Fiji because rape and brutality committed by police and the military was “happening” and had “increased” in Fiji. He claimed his safety in Fiji was at risk because of his being a follower of Ms Kirwin and because of the “breakaway” Fiji Native Government in Exile, of which Ms Kirwin is president. In his protection visa application form, [the applicant] did not mention knowing anyone who had been arrested or charged by authorities in Fiji.
On 26 September 2016, the day of his protection visa interview with the delegate, [the applicant] submitted to the Department a 26-page statement drafted and signed by Ms Kirwin in which she asserted that he is a registered member of PISAI, which she described as a charity concerned with the plight of indigenous people in the Pacific and Australia. She said that [the applicant] is also a registered member of the Fiji Native Government in Exile, domiciled in Sydney, which she called a “particular social group” but which, on her description is a political movement with a specific “political opinion” and program, being to advance the objective of political self-determination by the indigenous Fijian populations in the two almost provinces of Nadroga & Navosa and Ra. Ms Kirwin provided a history of her involvement in that movement and her having been banned from returning to Fiji. She said supporters of the breakaway movements in the two named provinces, or “Christian states”, fear persecution due to their “religion” because the new 2013 Fijian constitution separates church from state. She claimed that they also fear persecution for reasons of “race” because, under a “Muslim Attorney-General”, as she put it, the new Constitution was a “roadmap” for the disintegrating of the ethnic Fijian race in Fiji by forcing them to be “forcibly and intensively assimilated into the dominant culture of Muslim A-G Sayed-Khaiyum’s evil imaginations [sic], whatever form that may be.” In the last closing clause, Ms Kirwin seemed to indicate that she was able to specify how the Fijian indigenous population was being erased, but she later criticised the new Constitution’s Preamble for referring to the population’s different races and cultures as “equal citizenry”. Essentially she was suggesting that considering all citizens as equals, migrant and indigenous alike was tantamount to, or bund to cause, persecution of the indigenous population. A migrant to Australia of 35 years’ standing as well as an Australian citizen, Ms Kirwin appeared to articulate over and again what, in her view, was the intentionally discriminatory effect of a nation’s Constitution recognising citizens of both indigenous and migrant background as equals. She said in the statement that discrimination could be seen in the government’s redistribution of some tribe-owned land, 90% of all land in Fiji having previously been by tradition been native-owned.
Ms Kirwin mentioned in her statement, submitted by [the applicant] to the delegate, that about 44 persons in Ra province and about 16 persons from Nadroga & Navosa province were arrested July or August 2015. No further details such as might link them to [the applicant] was suggested. Ms Kirwin identified two Indian Fijian lawyers as having been instructed to defend these individuals against charges of sedition.
The statement does mention “about 70” members of the Fiji Native Government movement having been arrested on allegations of sedition; it goes on to say that of these, “some 16 from Ra were allowed bail” whereas “16 from Nadroga-Navosa and another 44 from Ra (the ‘Ra in-betweens’) were refused bail and were kept in custodial remand from the month of August 2015 until bail was granted approx. 3 months later…” The statement says (at para. 116) that many of the 70 arrested were “local chieftains”. Again, whereas these details were provided, there was no suggestion in the statement that [the applicant] was acquainted with any of the 70-odd people who had been arrested in August 2015.
Meanwhile, the statement refers to [the applicant] as coming from “the village of [Village 2], in the province of Ra.” This is not consistent with information provided by [the applicant] with Ms Kirwin’s assistance in his protection visa application form, where it was repeatedly claimed that [the applicant] and his family lived in [Village 1] village in [District], Ba province.
[The applicant] submitted a copy of his $50.00 enrolment in PISAI in June 2016.
In his interview with the delegate, [the applicant] said he first felt the need to seek protection in June 2016, after being in Australia a number of months. He said he had by then become fearful that the Fijian government would not protect indigenous Fijians because it had forgotten native Fijians and was preferentially treating ethnic Indian Fijians. He said he could not return to Fiji because it is difficult to make ends meet and support his family financially. He said that if he returned to Fiji he would have to look for work and therefore start a career on low wages. He said that all jobs are given to Indian Fijians whereas none are given to indigenous Fijians. He said he had never been a member of any political movements, groups or parties in Fiji. Asked to explain the relevance of his membership of PISAI and the Fiji Native Government in Exile, he said that these organisations advocate for people who are seeking asylum in Australia. He told the delegate that he joined both organisations while he was finalising completion of his protection visa application forms. He said he supports both associations because they fight for the rights of indigenous Fijians.
[The applicant] also claimed to the delegate that some people in his age group were arrested by police in March 2015 (not August 2015 as suggested in the statement he submitted) for possession of illegal weapons. He said the police had no evidence to justify remanding these people. He claimed fear of being similarly treated due to his age. He did not suggest he was acquainted with any of these people.
[The applicant] went on to say that he did not fear being persecuted in Fiji due to his association with Ms Kirwin. The delegate put to him that this position was inconsistent with previously-posited claims. He evidently had difficulty conceiving where he had been inconsistent.
Asked about activities with the two organisations he had joined, [the applicant] evidently said he held no posts in either and had only attended two meetings and donated $10.00 to them. He told the delegate he had not yet ever spoken to Ms Kirwin, but had listened to her at the two meetings he had attended. He said he considered her motivating and encouraging.
Independent country information
DFAT Country Information Report: Fiji (27 September 2017) provides the following information regarding Fiji’s population:
DEMOGRAPHY
2.12 Fiji’s population is estimated at 900,000. Population growth is low at 0.7 per cent. High birth rates are offset by high levels of emigration, especially of skilled and wealthy Fijians, particularly Indo-Fijians.
2.13 On Viti Levu, one of two main islands, the population is concentrated around the capital Suva (approximately 177,000 residents) and around the main airport in Nadi. On Vanua Levu, the second main island, the population is concentrated around the towns of Labasa and Savusavu. Fiji has relatively low levels of urbanisation, with approximately half the population continuing to live in rural areas.
2.14 At the most recent census, in 2007, approximately 57 per cent of the population was indigenous Fijian. Approximately 37.5 per cent of the population was of Indian descent. The balance comprised Rotumans (a distinct ethnic group from the Fijian protectorate of Rotuma), Chinese, Europeans and other Pacific Islanders.
2.15 Indo-Fijians formed a larger share of the population than indigenous Fijians between at least 1946 and 1986, according to census results. Since 1986, the Indo-Fijian population has declined in relative terms, due to lower birth rates and emigration.
2.16 Fiji’s indigenous population is predominantly Christian: Methodist (35 per cent), Catholic (9 per cent), and Anglican (0.8 per cent), with a growing evangelist movement (Seventh Day Adventists – four per cent, and the New Methodist Church – one-two per cent). The Indo-Fijian population is largely Hindu (28 per cent), with smaller Muslim (seven per cent) and Sikh (under one per cent) populations. There is some ethnic crossover amongst religions – there are 8,000 Indo-Fijian Methodists for example – but, in general, the indigenous and Indo-Fijian populations are religiously separate.
2.17 Fiji’s ethnic and religious groups live alongside each other and in all parts of Fiji. However, a higher proportion of Indo-Fijians live in urban and coastal areas, particularly along the northwest coasts of Viti Levu and Vanua Levu where the sugar cane industry is located. A higher proportion of indigenous Fijians live in inland and rural areas. Suva is ethnically and religiously mixed.
The same source provides a description of the 2013 Constitution:
POLITICAL SYSTEM
2.33 Fiji’s 2013 Constitution provides for a Westminster system of government. Legislative authority is vested in a unicameral parliament of 50 members. The parliament is elected on the basis of proportional representation, through a multi-member open list system. Elections must be held every four years.
2.34 The Prime Minister is elected by parliament and serves as the head of government. There is no limit on the number of terms he or she can serve. The Prime Minister chairs the Cabinet, which consists of Ministers appointed by him or her. The members of Cabinet are accountable to the parliament.
2.35 A President is appointed by the Prime Minister. The President is the head of state. The President can serve up to two terms of three years each. The Constitution grants executive power to the President, but also constrains him or her to act only on the advice of the government.
2.36 Governance and political power has been relatively centralised throughout Fiji’s modern history and the 2013 Constitution continues this practice by not formally devolving power to local governments. In practice, government expenditure remains relatively centralised.
2.37 However, regional governance systems that pre-date the 2013 Constitution remain in place. Fiji is divided for administrative purposes into four divisions (Northern, Central, Eastern and Western) and one dependency (Rotuma). Divisions have a minimal role in the provision of local government services.
2.38 The divisions are further divided into a total of fourteen provinces. Provincial councils represent the ‘vanua’ or traditional Fijian chiefly system and are responsible largely for indigenous Fijian affairs. The Ministry of iTaukei Affairs constitutes and manages them. Tribal chiefs are commonly appointed as council presidents, though commoners have also been appointed in recent years. Each province is further sub-divided into districts and villages (koro). Again, these systems largely represent the interests of indigenous Fijians ... Some services are provided to Indo-Fijians in rural areas through faith-based organisations.

The same source discusses land rights in Fiji:
Indigenous Fijians (iTaukei)
3.11 Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Prior to European contact, Fijian culture was fluid, but was generally hierarchical and patrilineal, and structured into a number of families, tribes, clans, and confederations.
3.12 Indigenous Fijians constitute nearly 60 per cent of Fiji’s population. Despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government. They are under-represented in business, professional services and the transport sector.
3.13 In part to protect the Fijian culture and way of life, early British governors established a ‘native administration’, which entrenched the tribal / hierarchical relationships prevalent in parts of Fiji at the end of the 19th century. Though modified and renamed, much of this administrative system continues to exist today. It consists of an iTaukei Affairs Board (the ‘guardian’ of the Fijian administrative system and other aspects of Fijian custom); an iTaukei Lands Commission (which registers the names of each member of a mataqali, or tribe); the iTaukei Land Trust Board (which manages native land leases); provincial (yasana) councils; and district (tikina) councils. Other elements of the ‘native administration’, such as the Great Council of Chiefs (Bose Levu Vakaturaga) which was once able to appoint Senators, have been disbanded by the interim government in the name of removing indigenous privilege as part of its attempts to de-racialise Fijian politics.
3.14 The continued existence of the indigenous Fijian administration (provincial councils and the iTaukei affairs ministry) is a minor form of positive discrimination towards indigenous Fijians. The overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. Other services, including rural development, are provided through the indigenous Fijian administration and could be considered to unfairly advantage these groups on the basis of their ethnicity.
3.15 In remote rural and outlying island areas, indigenous Fijians are generally an overwhelming majority of the population and are unlikely to be the victims of societal discrimination. In many cases, there is strong societal cohesion and a strong degree of cooperation between indigenous landowners and Indo-Fijian tenants...
3.16 Overall DFAT assesses there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians.
The same source discusses PISAI and the movements in the two provinces of Nadroga & Navosa and Ra:
Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI)
3.51 The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody.
3.52 In August 2015, several media outlets reported around 40 indigenous ‘rebels’ had been arrested for conducting ‘military-style training’ in Ra province in the north of Fiji’s main island, Viti Levu. Police officers were deployed to the province in search of alleged firearms used, but none were reportedly found. On 16 August 2015, 16 people were reportedly arrested in Nadroga-Navosa province for causing communal antagonism and sedition for signing the ‘Provincial Institutions of Self Government’ of the Nadroga Navosa Christian State. During the week of 10-15 August, a further 37 individuals associated with the Ra Sovereign Christian State were arrested. The pro-government Fiji Sun was particularly vocal when reporting on the issue, often conflating the incidents and alleging links to the main opposition political party, SODELPA. Credible sources agree that the government sensationalised the situation for political gain.
3.53 Provincial councils in Ra, Ba and Nadroga-Navosa provinces and chiefs have distanced themselves from the groups involved and pledged their allegiance to the Bainimarama government. The SODELPA opposition party officially denied any links to the groups involved.
3.54 At the time of writing, 16 individuals from Ra province remain on bail on sedition charges for allegedly attempting to form a separate Christian state in their province. They appeared in Lautoka High Court on 16 March 2017, pleaded not guilty to the charges and bail was extended. The trial began on 14 August.
3.55 A separate sedition trial involving 14 remaining individuals from Nadroga province, charged with two counts of sedition for their alleged involvement in attempting to establish a separate Christian state, will also take place at Lautoka High Court. The group appeared in court on 29 March 2017 and pleaded not guilty to the charges. The trial will reportedly proceed on 20 October 2017.
3.56 Overall, 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. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.
A Cook Islands News report, dated 4 September 2015, included information on the secessionist movement referred to as the ‘Nadroga Navosa Sovereign Christian State’ or ‘Ra Nation’, and Ms Kirwin’s involvement in this movement:
Veteran reporter of news in the Pacific, Michael Field, has shed some light on the recent news of a festering rebellion in the northern hills of Fiji’s Viti Levu.
On his online news comment blog, Field has posted a photograph of a group of Fijians who he says are the people behind the rebellion that Fiji’s Prime Minister Frank Bainimarama has vowed to “crush”.
“These are the people giving Fiji supremo Voreqe Bainimarama disturbed sleep,” Field blogs. “They call themselves Ministers of the Nadroga Navosa Sovereign Christian State – one of two reputed new nations in the Fiji Islands.
“Most of the people in the photo are now sitting in Fiji jails on charges of sedition and causing unrest.
“The man in the wheel chair, former politician Osea Gavidi, has recently died.
The woman in orange sitting beside him, Oni Kirwin, is living in Australia and has been put on Fiji’s immigration black list. Bainimarama is rather frightened of her.”
The group is known for short as the Ra Nation, based on what the people in the photo, taken from Oni Kirwin’s Facebook site, call the Uluda Declaration.[1]
[1] “Fijian dissidents declare new nation,” Cook Islands News, 4 September 2015,
The Cook Islands News report included further information on Ms Kirwin’s involvement in this Christian secessionist movement, mostly provided by the journalist Michael Field. This read:
Field says Oni Kirwin is now running the Ra Nation, “charging around Viti Levu holding meetings with assorted characters”.
Field continues: “The new state she created has had a number of founding events. The significant one, according to Oni Kirwin, took place on November 4 in Cuvu, just west of Sigatoka and near the Shangri–la Fijian Resort.
“She says she swore in her cabinet, just like the recently departed Vice President Jopi Seniloli did with the Speight gang in 2000 and was sent to jail for sedition.
“Osea Gavidi, 71, was named as the new president. But he died on April 3 this year.
“The new cabinet passed the Nadroga-Navosa Constitution with ten commandments. It was ratified (Kirwin does not say what she means with this legalese) in Naevuevu, up in the mountains above Sigatoka.
“Kirwin left Fiji last November and, rather grandly, informed the United Nations and Queen Elizabeth II of the existence of the Ra Nation. She seems to have received no reply.
“She says she has applied to the International Court of Justice for recognition. The body’s website has not recorded the correspondence.
“Kirwin had some new flags for the state stitched up in Australia. With a sense of drama, she had them smuggled into Fiji and they were raised over two “autonomous Christian states” in Cuvu and in Rakiraki on April 10.
“Kirwin claims that as no one ripped the flags down for seven days the flags are now accepted as the standard for the respective autonomous Christian states they represent, ‘pursuant to international conventions on state flags’.
“There is no international convention on flags other than that which applies to registration of ships,” Field points out.
Kirwin says she is running things from Australia, talking daily to the two new governments.
“Otherwise get the hell out of the way and keep your big mouths shut!” she advises on her Facebook site.
“This work, is for the lions, not pussies! This work is for men, not poofters [sic]!”[2]
[2] Ibid.
Evidence to the Tribunal
[The applicant] submitted a further statement from Ms Kirwin, dated 4 February 2019, in which he was described again as having been brought up in [Village 2] in Ra province, where his father purportedly still resided, rather than in [Village 1] in [District], which is nearby in Ba province, and which he had named a number of times in his own protection visa application form. However, later in this new statement, the village in which [the applicant]’s family still resides was called by a different name: [Village 3]. The relevant domicile information in [the applicant]’s statement, as compiled by Ms Kirwin, appeared to me to be inconsistent on two counts, as it were: [Village 2] and [Village 3], though both apparently in Ra, contradict each other within the same statement; and both are contradicted by [Village 1] in [District], Ba which is identified several times throughout the protection visa application form as [the applicant]’s home village.
The 4 February 2019 statement asserts that [the applicant]’s own family was subjected in 2015 to “extreme bullying and unconscionable persecutions by members of the Fiji military and police as a result of their involvement in the breakaway Ra Sovereign Christian State” movement that Ms Kirwin “helped with on 28 October, 2014”. This was the first ever suggestion that [the applicant] was even remotely acquainted with anyone who had been arrested in Fiji in 2015, or any year for that matter.
The 4 February 2019 statement gave a further description of Ms Kirwin’s acrimonious dealings with authorities in Fiji over the years since the before and since the 2006 coup led by then-Commodore Bainimarama.
The statement of 4 February 2019 attests to [the applicant]’s own (widowed) father [and relatives] having been targeted due to having subscribed (somehow) of the Universal Declaration of Independence (UDI) in Nadroga & Navosa and Ra in 2014. She said the village now claimed to have been [the applicant]’s home village was targeted by authorities for raids in 2015. She said that 44 accused seditionists including [the applicant]’s “[relatives]” were awaiting trial for sedition even though no evidence had been found before their initial arrest and remand. She said that [the applicant] was away from the village at the time of the raids. The statement went on to say that [the applicant]’s own father and siblings were not arrested. Ms Kirwin said his father rang him and told him not to return to the village. Her statement said that [the applicant] was residing and studying in Suva at the time. It goes on to say that family members were sacked from their jobs and that [the applicant] feared he would be barred from employment due to his familial links to his arrested relatives. It describes his [sibling] and [relative] in Australia having successfully supported his visitor visa application. It provides a visceral narrative regarding [the applicant]’s state of mind as he as he apprehensively approached authorities at Nadi airport and passed through unimpeded. It goes on to say that he had heard about Ms Kirwin from relatives in his village in Fiji and decided to attend one of her gatherings in Sydney where he also paid to join her organisations. This, it is elsewhere claimed, was the same day he embarked on his protection visa application.
At the Tribunal hearing, I asked [the applicant] to state his family’s residential address. In reply, he said it was [Village 1] which, as noted, is in [District] in Ba province, not Ra. This undermines the reliability of the unsupported information in the 4 February 2019 about [the applicant]’s family residing in Ra province, irrespective of whether it was in [Village 2] in Ra or [Village 3] in Ra. On reflection I give more weight to the information in [the applicant]’s protection visa application form as confirmed in oral evidence at the Tribunal hearing, to the effect that his family and relatives lived and live in [Village 1] in Ba province. I give no weight to the suggestion that they reside in Ra. This gives rise to doubt regarding claims to the effect that raids on suspected Ra separatists in Ra villages directly affected [the applicant]’s own [relatives].
I recall that, in oral evidence to the delegate, [the applicant] did refer to some “people in his age group” having been charged with sedition in March 2015; he did not evidently say they were his [relatives]. I therefore asked him to be very specific about which and how many of his “family” members had been arrested and charged. He provided me with eight given names and the name of another person with his [surname]; he appeared to be suggesting this was his [Relative 1]. He said that one of the other people [details deleted]. Without more information, it seemed reasonably hard to accept that this person was [a relative]. [The applicant] did not provide any independent evidence to support his claims about the people he named having actually been charged or about their being his close relatives. Also he went on to say that none of his relatives had ever been charged, which seemed to set them apart from people described in the statements drafted on his behalf by Ms Kirwin; he said they had nevertheless been placed on reporting conditions, suggesting here that they remained persons of interest.
When I specifically asked [the applicant] if he could provide any evidence linking him and his father by blood and domicile to anyone arrested in the matter of the Ra and/or Nadroga & Navosa independence movements, he said that Ms Kirwin has all the evidence. When I asked her if she could provide any evidence to support these claims she said that she had not brought any because she had thought, in frustration with Australia’s protection visa determination process, “Why bother?” I reminded her that this was [the applicant]’s case rather than her own and that at some point in the past she had undertaken to help him. She then said the raids on [the applicant]’s village had been undertaken without anything having been documented. I asked [the applicant] if he agreed with the evidence Ms Kirwin had given and he said he did. Ms Kirwin then undertook on [the applicant]’s behalf to ask her lawyers in Fiji if they could provide any evidence of raids on [the applicant]’s family’s home village and of arrests of his close relatives. I allowed two weeks for [the applicant] to provide this and any other supporting material from any source including any available through Ms Kirwin; nothing was received. Ultimately, [the applicant]’s claims to the effect that police arrested and laid illegal firearms charges on around ten of his close family members, including [specified members], remains unsupported.
I asked [the applicant] about why he had felt the need to flee Fiji. He said that had he been in his home village on the night his relatives were arrested he would have been arrested too. I put to him that he was evidently not resident in his home village in those days as he was living, studying and looking for work in Suva. He then said that just supposing he had been staying back in the village he would have been arrested because he was related to those who were arrested. I put to him that his father [was] not arrested and that this suggested that there appeared thus to be no factual grounding for the concern he was describing. In response, [the applicant] said that the authorities arrested suspects and that his father luckily was not arrested. I put to him that this suggested the authorities did not regard his father as a suspect, and he said that the police were looking for people around [age] at the time, whereas his father was [age]. I put to him that his father’s [relative], apparently having about [number children], might well have been past [age]. In reply, he said [Relative 1] was younger than his father. I put to [the applicant] that in any event, around a year after the alleged event, nothing had happened to him and he had evidently been allowed to leave Fiji without any interference from the authorities. He said his father had told him not to come back to the village. He claimed he did not return to the village and that he was not harmed; adding this to the fact that he was able to leave Fiji legally without any trouble, he does not appear to have been of any interest to Fijian authorities up to the time he left the country.
I asked [the applicant] what he thought would happen if he returned to Fiji and his answers were generally about what would happen if he returned to his village. He said, “The government suspects us.” I reminded him that he was not treated as a suspect by state authorities when he tried to leave Fiji. In reply, he said that had he stayed he feared he would eventually be “taken in” by the authorities.
I invited [the applicant] to give me an example of how he would express his political opinion in Fiji if he could. In reply, he simply said that if he returns to Fiji he will not be able to remain silent about what he feels and that he will be jailed for speaking his mind. I asked him to say, actually, what he really feels. In reply, he said, “My political opinion [is that] people should be saved from what’s happening in Fiji. I put to him that this was very general, as he seemed to be talking about all people in Fiji; I asked if he could speak his mind in more detail. In reply, he said, “I want to be safe.” He then asked me to repeat the question. I asked him to say from what did he want to be safe, and he said he wanted to be safe from the authorities who took his [relatives]. He told me that whatever he might say in Fiji, the authorities would not listen to him.
I asked [the applicant] to give me a summary of his political opinion: his objectives, his wishes. In reply, he said, “My political opinion is that if you’re threatened by your own nation, you can be protected by another nation like Australia.” I asked him if that was all he had to say, and he then said, “Also I have a family in Australia.” He did not give any impression here about adhering to any specific political objective. I put to him that the summary he gave as to his political opinion appeared to be nothing more than an expression of interest in a successful protection visa application. Eventually, he said his political opinion is that indigenous people in Fiji and their voices should be heard because no action is being taken to protect their rights. This opinion did not refer to any secessionist objectives. Bearing in mind the independent country information, nothing [the applicant] said in his summary sounded capable of being regarded as significantly controversial in Fiji.

I asked [the applicant] why it took so many attempts on my part to hear him articulate a political opinion during this particular exchange and he said he had not understood my question. I reminded him that twice while attempting to answer my questions he specifically acknowledged that the questions were about his “political opinion” and then proceeded in the main to talk about his migration prospects. Overall he did not give the impression of being particularly interested in the philosophy and aims of either PISAI or the Fiji Native Government in exile.
I put to [the applicant] the information from DFAT to the effect that that “individuals associated with … PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter.” He did not appear to meet the profile of “[i]ndividuals or groups who organise and take actions to create Christian separatist states within Fiji [who] are at a moderate to high risk of harassment and arrest by authorities.” In reply, he said that now that he understands the Ra separatist movement, he will not be able to keep his mouth shut, will stand up for what he believes and will then be harmed for doing so. I asked if he could provide any evidence of individuals who have associated with Ms Kirwin, her activities, and her groups PISAI and the Fijian Native Government in Exile being persecuted on return to Fiji and he referred me to Ms Kirwin for evidence. He said, “There’s a lot of us.”
When I asked Ms Kirwin herself about this class of persons (Fijians returning to Fiji who have associated with her or her organisations or the objectives of the Christian separatist state movements), she said they are not harmed on return to Fiji. She indicated that she had said this on many prior occasions. She said the authorities in Fiji do not have to harass each individual on return to Fiji because the law, as it is now, already discriminates against indigenous Fijians badly enough. She said the Constitution is “fraudulent” and the law is “genocidal”. As noted elsewhere in this record, [the applicant] agreed with her evidence.
I put to [the applicant] that his case, as he put it, turned to a significant extent on conduct that he had engaged in since arriving in Australia. I informed him that given that he had engaged in certain conduct in Australia, I am required to have regard to s.5J(6) of the Act:
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph [5J] (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.
I put to [the applicant] that I was concerned about his good faith in affiliating with Ms Kirwin and her organisations because he had told me that fees for membership of both organisations were part and parcel of the amount he had paid to have his protection visa application form filled and lodged. In response, he said that he had only heard about these organisations when he was in Fiji and heard more about them when he was here. He said that he then realised that what Ms Kirwin was talking about was happening to his family in Fiji..
I note that [the applicant] claims never to have been involved in any secessionist causes in Fiji while he was there: he said he had only heard about them.
I recall that when asked by the delegate to explain the relevance of his membership of PISAI and the Fiji Native Government in Exile, [the applicant]’s answer was that these organisations advocate for people who are seeking asylum in Australia.
[The applicant] told me he only sometimes goes to PISAI and/or Fiji Native Government in Exile meetings. He did not suggest he played an active role in either organisation.
Findings in relation to s.36(2)(a) of the Act
[The applicant]’s claims relate to “race”, “religion”, “political opinion” and “membership of a particular social group” although, in the main, since they involve persecution of people with secessionist sympathies, they are “political opinion” claims.
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]
[5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[6] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is an indigenous Fijian national. I accept that he was born in [in] Ba province, as attested to in his passport. It will be recalled that when I asked [the applicant] to name his home village in Fiji, where his family and relative live, he named [Village 1], which, as noted, is in [District] in Ba province. Based on this and the number of references and cross-references to [Village 1], [District], in Ba province that appear in [the applicant]’s protection visa application form, I give much more weight to [the applicant]’s home village having been and continuing to be [Village 1] in Ba province than to inconsistent suggestions to the effect that he comes from anywhere in Ra province, whether [Village 2] or [Village 3] or anywhere else. I accept that [the applicant] was educated at the institutions he named in his protection visa application and that he was still studying, by then in Suva, up to 2016. Whereas I note that he attended high school for two years in [Village 2] in Ra province, I given this no weight in my findings as to where his home village lies.
No evidence put before me suggests that Fijian authorities have raided, arrested or rounded up any residents in [the applicant]’s home province of Ba in their response to perceived sedition movements in Nadroga & Navosa or in Ra. Certainly none of the material collated and presented in [the applicant]’s submissions suggests that anyone in Ba has been arrested. In fact, Ba is only referred to in [the applicant]’s supporting statements in the context of being one of Fiji’s many named provinces. This lack of information as to anything relevant having happened in Ba does not help me to accept that any of [the applicant]’s relatives have ever been implicated in firearm possession or any other sedition-related offences.
Although [the applicant] claims that what happened to his [relatives] in Fiji caused him such fear as to prevent him from visiting his home village in 2015 and 2016 and, further, caused him to flee Fiji altogether in 2016, he made no reference to these facts at all in his original protection visa application; rather, his protection visa application was comprised almost totally of sur place claims about the potential future implications, in the event of return to Fiji, of having affiliated in Australia with Ms Oni Kirwin. The lack of reference in the protection visa application form, or in the 20 September 2016 statement, or in oral evidence to the delegate, to anyone from [the applicant]’s extended family having been arrested and charged with firearms offences in 2015 also makes it hard for me to accept that any of [the applicant]’s relatives have ever been implicated in firearm possession or any other sedition-related offences.
Whereas [the applicant] evidently told the delegate that he had heard of people having been arrested in March 2015 and evidently linked himself to them purely in terms of having a common “age group”, he later claimed orally and in writing, through Ms Kirwin, that the arrests took place in August 2015 and that the persons arrested included around ten [relatives]. I have given some cumulative weight to these two inconsistencies alongside other problems that I have found in [the applicant]’s evidence.
I note that [the applicant] provided given names for all of the people he claimed to know who, he said, were arrested in 2015. As noted, I asked him if he could provide any material to support his claims to the effect that the persons he named were in fact arrested and were related to him in the manners claimed. No material has been received, and the claims about people arrested in 2015 including the [relatives] of [the applicant] remain entirely unsupported. As noted, I accept that the benefit of the doubt should be given to protection visa applicants who are generally credible but unable to substantiate all of their claims. However, on the quality of the overall evidence in this case, much of it vague, inconsistent and confused, I do not accept that any of [the applicant]’s relatives have been arrested, let alone in connection with firearms charges or perceived sedition.
I note and give weight to the evidence the effect that [the applicant], a student from Ba who was temporarily residing and studying in Suva in 2016, was never approached by authorities in Fiji in connection with any matter, let alone association with “seditionist” activists or activities in that country while he was there, and also to the evidence regarding his legal and unimpeded departure from the country in that year. Overall, I find that he was not of any potentially relevant interest to the authorities in Fiji up to the time he left and I am not satisfied that he would have come negatively to their attention had he remained, or even had he returned to his home province, district and village which, I find on the evidence specifically to be Ba, [District] and [Village 1].
I give some cumulative weight in this matter to the evidence regarding [the applicant] having been concerned about his ability to find a satisfying job in Fiji in the period before he left that country. I am not satisfied on the evidence before me that his concerns about being unemployed or underpaid in Fiji related to any potentially relevant factors or fears.
On the evidence before me, and in light of findings immediately above, I find confidently that [the applicant]’s actions in Australia, simultaneously lodging a protection visa application and joining two organisations led by Mr Kirwin, have been entirely opportunistic. I am not satisfied that he is genuinely interested in any of the causes identified in his protection visa application, let alone the secession by Nadroga & Navosa and Ra provinces to become sovereign Christian states independent of Fiji. On the evidence before me I find that [the applicant] engaged in the conduct of affiliating with Ms Kirwin, her organisations and the secessionist causes in Fiji solely for the purpose of strengthening his claim to be a refugee. I am not satisfied on the evidence before me that he engaged in the conduct other than for the purpose of strengthening his claim to be a refugee. Thus, for the purposes of determining whether [the applicant] has a well founded fear of being persecuted for one or more of the reasons mentioned in s.5J(1)(a) in the event of return to Fiji, I disregard the acts of affiliation cited here and all that flows from them.
Disregarding [the applicant]’s conduct in affiliating with Ms Kirwin, her organisations and the secessionist causes in Fiji discussed in this protection visa application, I am not satisfied that [the applicant] faces a real chance of being persecuted in Fiji in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act.
In the alternative, I give weight to [the applicant]’s inability to provide examples of other PISAI and Fiji National Government in Exile members having been being persecuted on or after return in Fiji, and also to the independent information provided by DFAT, in finding that he would face only a very remote chance of negative interest on the part of the authorities in the event of return to that country. The chance of being persecuted in his case is therefore so remote as not to be real. Thus, on the evidence before me, I am not satisfied, in the alternative, that [the applicant] faces a real chance of being persecuted in Fiji in the reasonably foreseeable future.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Fiji, I find that Fiji is the “receiving country” in this case.
The potential harm claimed in this case includes “arbitrary deprivation of life”, “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”, all defined as “significant harm” according to the Act.
[The applicant]’s complementary protection claims are essentially the same as his claims to protection as a refugee. O this point, it is important to note that, for the purposes of this complementary protection assessment, [the applicant]’s conduct in Australia is not disregarded, as s.5J(6) does not come into play.
However, [the applicant]’s refugee claims have failed due to lack of credibility and, as found in my alternative assessment of his conduct in Australia, for not meeting the “real chance” test. In light of all my findings of fact, above, his claims can no more succeed as complementary protection claims.
Hence, having considered all of the evidence before me in its entirety, I am not satisfied that I have 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 [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 4427

13 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction