1621453 (Refugee)
[2022] AATA 4549
•12 October 2022
1621453 (Refugee) [2022] AATA 4549 (12 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Aristidis Alam Rigas
CASE NUMBER: 1621453
COUNTRY OF REFERENCE: Fiji
MEMBER:David McCulloch
DATE:12 October 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 October 2022 at 11:12am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – Christian breakaway states – race – indigenous Fijian – fear of detention – deaths in custody – advocating for indigenous Fijian rights – opposition to military rule – return visit to Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v Commonwealth (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA(1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275Any 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 dependants.
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 and Border Protection on 30 November 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji applied for the visa on 29 June 2016. The delegate refused to grant the visa.
The applicant was invited to a hearing of the Tribunal. A registered migration agent from the firm of the applicant’s nominated representative advised the Tribunal that the applicant did not intend to participate in the hearing and requested that a decision be made on the information before the Tribunal without a hearing.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report, Fiji – 27 September 2017 and DFAT Country Report, Fiji – 20 May 2022.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the Tribunal can be satisfied that protection criteria are met. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal notes the following migration history of the applicant as extracted from the delegate’s decision:
[December 1997] First arrived in Australia as the holder of a Visitor visa [December 1998] Departed Australia [Later in December 2008] Arrived in and departed Australia as the holder of a Transit visa TX-771 [May 2009] Arrived in Australia as the holder of a Transit visa TX-771 [Days later] Departed Australia [August 2016] Arrived in Australia as the holder of a [Visitor visa] 30/09/2016 Applied for a permanent protection visa XA-866
The Tribunal notes the following from the application forms for the protection visa. The applicant was born on [date] in [Town 1]. The applicant’s father is an Australian citizen. The applicant undertook military service from [between specified years]. The applicant belongs to the Fijian ethnic group and is a Christian. The applicant was married [in] January 1985 in Suva. The applicant’s spouse is in Fiji. The applicant has [specified children] who live in Fiji. The applicant is in contact with relatives by mobile phone and through social media. He contacts them weekly. The applicant lists one address only in Fiji lived at from [specified year] until August 2016 in [Town 2]. The applicant finished secondary school in Suva in [year]. [Between specified years] the applicant studied two courses at [College 1], in [specified subjects]. [In] 2003 the applicant studied as [an occupation 1] at [College 2]. At the same body the applicant studied [Subject 1] and [Subject 2] [in] 2005. From January 2004 until December 2006 the applicant worked as [an occupation 2] in the [named] department of [College 2]. From January 2008 until January 2009 the applicant worked as a supervisor for [an occupation 3] firm. From February 2009 until July 2016 the applicant was self-employed in [industry 1] and as a supervisor in Suva.
In the application forms, the applicant claims that he is a strong supporter of the Christian breakaway states of Nadroga-Navosa and Ra, which are being monitored by the Bainimarama regime. The applicant claims that Bainimarama has warned of severe punishment for sedition. The applicant claims to have associated himself with Oni Kirwin, and everyone who is involved with Oni Kirwin has been warned by Bainimarama of the harm that awaits them if they return to Fiji. The applicant claims that the police and military engage in brutality, torture, and rape, which continue unabated. The applicant claims that deaths in custody have increased. The applicant fears this will happen to him if he returns to Fiji.
The applicant claims that he did not relocate in Fiji as the government of Fiji is over-militarised, and his safety is at risk because of his involvement with Oni Kirwin and the breakaway states of Nadroga-Navosa and Ra.
The applicant claims that, as a citizen of the Fiji Native Government in Exile, a follower of Oni Kirwin, and a member of the Pacific Indigenous Samaritan Association Inc, he will be crushed by the Bainimarama government. The applicant claims that, due to the over-militarised government, the police have no power to protect him, and that all ministries in Fiji are controlled by the military.
The applicant provided to the Tribunal a comprehensive submission on his behalf dated 29 November 2016 signed (for) Oni Kirwin as Executive President, Pacific Indigenous Samaritan Association Inc and Fiji Native Government in Exile. The letter indicates that the applicant is a registered member of these organisations. The applicant supports the aims of the organisations including self-determination for all 14 provinces in Fiji. It is claimed that membership of these organisations is drawing adverse attention from the Fijian Government.
The letter indicates that Ms Kirwin’s establishment of the Pacific Indigenous Samaritan Association Inc had been built on work that she was engaged in in Australia amongst Indigenous Australians.
Submissions are made concerning the Fiji secessionist movement in the provinces of Ra and Nadroga-Navosa and the arrest and detention of those involved, and claimed inappropriate and repressive actions by the Fijian government. There is reference to media reports of August 2015 of the Fijian Prime Minister indicating an intention to track down and jail Fijians living in Australia who support the Christian secessionist movement and a warning that those involved will face severe punishment. There is reference to the current Fijian Government enshrining secularism which is claimed as inappropriate. It is indicated that this prevents the applicant practising his Christianity in Fiji. Repugnant forms of religion have been embraced.
Submissions are made that the applicant faces persecution based on his race due to a policy of the ethnic cleansing in Fiji of the native Fijian race. This is on the basis that it is to be assimilated into the Muslim culture in Fiji. Repugnant decrees of the Government are referred to. It is submitted that the applicant is at risk because of his association with Oni Kirwin.
The Tribunal notes the following from the interview with the delegate which took place on 29 November 2016. The applicant last came to Australia for the purpose of his father’s funeral. The applicant is married with [children]. In Australia has been looking for work in Australia but mostly staying at home with his mother who is an Australian citizen. The applicant’s son works in Fiji and his wife works as [an occupation 4]. The applicant sometimes sends the money from Australia. The applicant is a retired Fijian civil servant. He did [specified] work as well as [occupation 3] work in [Country 1].
The applicant indicated that his fear of returning to Fiji started in 2006 but that it was not until the last week of August 2016 that he determined that he needed protection. In 2006 the applicant was hit by police with a baton as he was breaching the curfew. The applicant indicated that that was the only harm that he suffered.
The applicant indicates he has never been politically active nor a member of any organisations in Fiji.
The applicant refers to the rights of indigenous Fijians being eroded. The government has scaled back and ownership and there are no rights. The applicant refers to there being no life in Fiji.
The claims made by Oni Kirwin are to backup his application. The applicant joined Oni Kirwin’s organisations to help the applicant with his application as they know more what is going on in Fiji. The applicant indicates he joined what he terms the Pacific Indigenous Samaritan Association in the third week of August 2016. He is only an ordinary low-level supporter of the group. The applicant was asked why a low-level supporter who would be harmed in Fiji and the applicant indicates that anyone who speaks up in Fiji can be targeted by the police.
It is noted that the applicant indicated that his fear started in 2006 when beaten by police but he appears to have left his country to work in [Country 1] and voluntarily returned to Fiji. The applicant is asked why he did not seek protection when he was in Australia in 2009. In response, the applicant indicated that he was just passing through, he was still under contract in [Country 1].
It is put to the applicant that the application appears to be lodged to extend his stay in Australia. The applicant indicates that he needs to stay in Australia to look after his mother who is on her own and her health is deteriorating. The applicant agrees that he has economic reasons to remain in Australia and comments that he is ageing.
The applicant indicates that if he returns to Fiji he will not achieve anything and that he still has a child in school to look after and the he is out of work. The applicant refers again to the rights of indigenous people being diminished.
INDEPENDENT INFORMATION
DFAT Country Report – Fiji, 20 May 2022 provides as follows:
iTaukei
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. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.
Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.[1]
[1] DFAT Country Report – Fiji, 20 May 2022, paras 3.08-3.10
…
Opposition parties
The main opposition parties at the time of writing are the Social Democratic Liberal Party (SODELPA) with 21 members of parliament, and the National Federation Party (NFP) with three. The ruling party, FijiFirst, has 28 seats in the Parliament. FijiFirst emphasises diversity and has Indo-Fijian members of parliament. SODELPA and (to a lesser extent) the NFP draw their support from iTaukei. The Fiji Labour Party, which has no seats in Parliament, tends to be supported by Indo-Fijians and is led by former Prime Minister Mahendra Chaudry. Former SODELPA leader and former Prime Minister (and 1987 coup leader) Sitiveni Rabuka has established the People’s Alliance Party (PAP) to contest the next election and is seeking to draw multi-ethnic support.
Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.
SODELPA was suspended in 2020 under electoral rules for breaching its own constitution. SODELPA is factionalised with personal loyalties and geographic loyalties tied to particular chiefs. Factional disputes can be very public and ill-disciplined, which may have increased attention paid to them by the media and regulators.
SODELPA leader (and 1987 coup leader) Sitiveni Rabuka was charged with corruption offences in the lead-up to the 2018 election but was released on bail. He was later cleared and an appeal by the anti-corruption commission was dismissed.
Planned protests by the National Federation Party, the second largest opposition party, were denied permission in October 2020 (during the COVID-19 pandemic) and August 2019 (before the COVID-19 pandemic). The 2019 protest was denied permission due to incorrect documents being provided.
DFAT is aware of allegations of police harassing members of opposition parties. In-country sources told DFAT that such incidents are likely the result of orders from senior people in the police, military or government. Police allegedly use the Public Order Act to effect arrests in order to prevent opposition meetings, prevent protests or even shut down debate. Opposition parties use social media regularly but may self-censor.
For example, in 2020 police raided a meeting held by Rabuka in Rakiraki in the north of Viti Levu. The meeting was stopped because Rabuka allegedly did not have a permit for a meeting of more than 10 people. Police were aware of the meeting going ahead as organisers had sought clarification on a permit to operate outside of a curfew implemented to control COVID-19. The dispersal was apparently peaceful and the media reported that police headquarters in Suva had asked Rakiraki police for an explanation of the events.
The events described above have been directed at high-profile people within the opposition. DFAT understands that rank and file and low-profile opposition party members would be much less likely to experience interference. Those involved or perceived to be involved in opposition parties who facilitate high-profile criticism (for example, journalists or social media users) may be questioned by police, but DFAT understands that this is not a widespread problem affecting low-profile party members.
Politics and parliamentary tactics can be energetic and robust. Opposition political parties and figures are public with their views, and efforts to discipline them are in accordance with the law. DFAT assesses that opposition political parties and their members experience a low risk of official violence but notes that discrimination in the form of questioning or restriction on activities is possible.[2]
[2] DFAT Country Report – Fiji, 20 May 2022, paras 3.31-3.39.
DFAT Country Report – Fiji, 27 September 2017 provides as follows:
Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI)
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.
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.
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.
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.
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.
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.[3]
[3] DFAT Country Report – Fiji, 27 September 2017, paras 3.51- 3.56.
The Country of Origin Information Services Section of the now Department of Home Affairs provided the following report on 29 July 2016 relating to questions asked of the DFAT post in Fiji and the answers provided:
BACKGROUND
A number of Fijian applicants before the AAT are making claims as members of the organisations Pacific Indigenous Samaritan Association Inc (PISAI) and the Fiji Native Government in Exile. According to submissions received by the AAT, both organisations are led by Ms Mereoni (Oni) Kirwin who has been banned from entering Fiji. PISAI is a Christian organisation and it appears one of its goals is to assist indigenous Fijians obtain protection visas.
According to the submissions the Fiji Native Government in Exile was established in Sydney in early 2016 with the aim of obtaining self-determination for each of the fourteen provinces of Fiji as Christian states. The submissions also state that the organisation elected a fourteen-member executive in 2016 in Sydney to represent each of the Fijian provinces. It is associated with the ‘secessionist’ movement in the two provinces of Ra and Nadroga-Navosa and provides funds for the legal costs of the 60+ people in Fiji facing court charges relating to the secessionist movement’s activities in 2015.
The AAT is aware that Prime Minister Bainimarama was reported in the Australian media to have threatened Fijians who support a Christian secessionist movement during his visit to Australia in August 2015.
QUESTIONS: [14/07/2016]
Q.1 Are the PISAI and the Fiji Native Government in Exile known in Fiji?
Q.2 Is Post able to provide any information on the organisation Fiji Native Government in Exile?
Q.3 Does Post have any information on the level of scrutiny or attention the Fiji government would give to members of either organisation who return to Fiji?
Q.4 Are members of the organisations likely to face harm from the government if they return to Fiji?
RESPONSES: [27/07/2016]
Background to the ‘secessionist’ movement in Ra and Nadrogo-Navosa provinces
In August 2015, a group of individuals apparently associated with a previously declared ‘autonomous Christian State’ based on a traditional Fijian province - the Ra Sovereign Christian State - were arrested and charged with sedition and urging political violence (section 65 (1) of the Fiji Crimes Decree 2009 refers, for which the maximum penalty is 15 years imprisonment). This group had reportedly been conducting ‘military-style training’.
In addition, two other groups of arrests occurred in 2015 on the charges of inciting sedition - one in early 2015 and another in August 2015, immediately after the arrests noted above. Those arrested in these two groups were charged with sedition and causing communal antagonism (section 65 (2) of the Fiji Crimes Decree 2009 refers, for which the maximum penalty is 10 years imprisonment). Those arrested were also apparently associated with two ‘autonomous Christian states’ - the Ra Sovereign Christian State referred to above and the Nadroga-Navosa Sovereign Christian State which had been declared earlier in 2015.
We understand in total the three groups of arrested persons included more than 60 people. In all three instances, those charged were released on bail and legal processes remain underway. Most recently, sixteen of those accused with causing communal antagonism (that is, not those charged with urging political violence) appeared in court on 22 July 2016. The matter was however rescheduled with the trial now expected in February 2017. Bail was extended until that time.
There have been no further arrests for sedition since August 2015.
We note your advice that a number of Fiji applicants before the Administrative Appeals Tribunal are claiming to be members of the Fiji Native Government in Exile and the Pacific Indigenous Samaritan Association Inc (PISAI). We also note your advice that both organisations are led by Ms Mereoni (Oni) Kirwin and that one of the PISAI’s goals appears to be to assist indigenous Fijians obtain protection visas.
We have not been able to determine whether the Fiji Native Government in Exile is known in Fiji - an internet search returned only one hit: Oni Kirwin posting the outcome of supposed executive elections on her facebook page in February 2016. Likewise, we have not been able to determine whether PISAI is known in Fiji. A separate internet search returned a PISAI facebook page, claiming that the organisation was founded in February 2011 as a ‘community organisation with a mission to share the Gospel and the principles of love, faith and hope to empower those in need’. Media coverage in the Fiji Sun at the time of the August 2015 arrests mentions Oni Kirwin as ‘claim(ing) to have founded a Pacific Indigenous Samaritan Association’ in Australia. It also reported that Oni Kirwin was seeking to raise funds ‘for those accused in the alleged sedition’.
Post was unable to discover any evidence of links between either the Fiji Native Government in Exile, PISAI, any of the three groups of arrested persons or the two ‘autonomous Christian states’.
As you note, Australian media reported Prime Minister Bainimarama as threatening Fijians who support a Christian secessionist movement on 28 August 2015 during a visit to Australia. An opinion piece in the pro-Government Fiji Sun newspaper on 27 August 2015 called on the Fiji Government to ask Australia to extradite Fijians inciting violence to Fiji face the law. To note, the Australian Government did not receive any formal approach from the Fiji Government to extradite Fijian/Australian nationals in respect of these cases.
R.1. Not as far as Suva Post is aware.
R.2. No.
R.3. Neither organisation or memberships thereof appear to be known in Fiji.
R.4. The Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji. In the case a person returning to Fiji was accused of or suspected to have been involved in such activities, it is possible that they would be arrested and prosecuted for such activities.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for [but this should not lead to] an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Fiji and accordingly the claims will be assessed against Fiji.
The applicant elected not to participate in the hearing which is a key means by which the Tribunal questions applicants, tests credibility and puts relevant independent information. However, the applicant has been interviewed by the delegate which, having been reviewed by the Tribunal. Relevant evidence is referred to earlier in this decision.
The applicant’s evidence is that he has never been politically involved in Fiji nor is there any indication that he would be substantially politically involved on return, apart from joining in Australia the Fiji Native Government in Exile and the Pacific Indigenous Samaritan Association. The independent DFAT and COISS information indicates that neither association with Oni Kirwin nor membership of the Fiji Native Government in Exile or the Pacific Indigenous Samaritan Association would attract adverse attention by authorities in Fiji. The independent information indicates that the only basis on which there would be adverse attention by authorities in Fiji is in relation to individuals that would actively advocate for secession in Fiji.
It is clear from the applicant’s evidence in the interview with the delegate that he is not actively politically involved apart from joining the organisations in Australia. There has been no opportunity in the hearing to further question the applicant about intended political involvement on return to Fiji including whether he would be involved actively in secessionist causes, apart from mere membership of the Fiji Native Government in exile and the Pacific Indigenous Samaritan Association. The applicant does not indicate in either his written claims or an interview with the delegate that he would be actively politically involved on return to Fiji including in secessionist causes.
Given all of the evidence, the Tribunal is not satisfied that the applicant would be politically active on return to Fiji and is not satisfied he would be active in secessionist causes. The Tribunal is not satisfied based on independent evidence extracted that the applicant’s membership alone of the Fiji Native Government in exile nor the Pacific Indigenous Samaritan Association or his association with Oni Kirwin creates a real chance of serious or significant harm towards the applicant by authorities in Fiji as a result of those memberships or connection. As the applicant would not be involved in secessionist causes on return to Fiji he does not face a real chance of serious or significant harm on that basis.
The Tribunal is prepared to accept that the applicant was beaten with a baton by police in 2006 in Fiji for breaching a curfew. However, the Tribunal is not satisfied that this provides a basis many years later to establish that the applicant on return to Fiji would face a real chance of serious or significant harm.
The applicant has not seriously in his claims or in the interview with the delegate articulated systemic or serious difficulties suffered because he is indigenous Fijian. The DFAT information extracted does not support the contention that indigenous Fijians face in Fiji a real chance of serious or significant harm. Given the evidence, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on being indigenous Fijian.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
On the Departmental file is a nondisclosure certificate issued under s 438 of the Act. The certificate is issued on the basis that the documents relate to internal working documents and business affairs. The Tribunal is not satisfied that this is a legitimate basis for public interest immunity and therefore does not consider that the certificate is valid. The documents the subject of the certificate are not relevant to the applicant’s claims.
In summary, the Tribunal is not satisfied that the applicant has well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk of him suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
David McCulloch
MemberAttachment - 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.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – 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; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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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 the 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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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