1621961 (Refugee)

1621961 (Refugee) [2017] AATA 1143 (21 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621961
COUNTRY OF REFERENCE:                  Fiji
MEMBER:R Homan
DATE:21 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 June 2017 at 4:41pm
CATCHWORDS
Refugee – Protection visa – Fiji – Victim of sexual abuse as child – Fear of harm from perpetrator – Dispute with relative – Fear of retaliation and harm from relative’s family members in Fiji – Fear of homelessness
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 438, 499
Migration Regulations 1994, Schedule 2
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 [in] November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who the Tribunal accepts is a citizen of Fiji, applied for the visa [in] September 2016.
The issues in this review are whether the applicant is owed protection obligations because he is a refugee; or because 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 that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). 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.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
Visa application
According to the information provided in his visa application, the applicant in this case is a Fijian national born in [year] in [town], Fiji. The applicant arrived in Australia in September 2014 together with his parents and [siblings] as the holder of a [temporary] visa granted to him as the dependent of his father, who is a [priest]. Prior to his arrival in Australia, the applicant had been residing in [Location 1], Fiji.
Protection claims
The applicant’s claims for protection were set out in a brief, typed statement in the English language. The applicant claimed that he feared being killed if he returned to Fiji as there were powerful people living in his home area who molested and abused him when he was growing up. The applicant claimed generally that there was no safety in Fiji and that anarchy and restlessness were on the rise. The applicant said that the state did not have sufficient resources to cope with these problems.
Departmental interview – [November] 2016
The applicant attended an interview with an officer of the Department of Immigration [in] November 2016 and the Tribunal has listened to an electronic recording of that interview.
The applicant confirmed that he lived in [Location 1] with his parents, [siblings and family member] from the time of his birth until his arrival in Australia as a [age]-year-old. The applicant confirmed that his father was a [priest].
The applicant claimed he was sexually abused as a child in Fiji by two former military officers and three current military officers. The applicant claimed that the military officers were assigned to a base protecting a [site] in the area. The applicant claimed that his father had a [business] close to the [site]. The applicant helped his father with the paperwork for the business. The military officers used [facilities] from his father’s base, which was about [distance] km from his home. The applicant said he was abused at times when he was alone at [his father's base]. The abuse began when he was [age] and continued until he was [age] and occurred on a weekly or fortnightly basis during this period. The applicant said he never reported the abuse as his assailants warned him not to tell any adults or he would be killed.
The applicant said that he told his father about the abuse after his arrival in Australia. The applicant’s father had not taken any action as he was under the impression that the family would not need to return to Fiji.
Asked why he had not made an application for a protection visa sooner after his arrival in Australia, the applicant said he had followed his father’s advice and had been told by his father to wait as he still had a visa to remain in Australia.
The delegate put to the applicant information from a [officer] from [a State corrections service], who said she had interviewed the applicant at his home. The applicant was said to have told the officer that he planned to apply for a protection visa as he did not want to go back to Fiji because he would be homeless. The applicant was recorded to have said that he did not fear persecution and knew his application would not be approved but believed it would give him more time in Australia. The applicant responded to the information saying he did not feel comfortable talking about his personal issues with the officer in question.
Asked what he thought might happen if he were to return to Fiji, the applicant said he feared being killed or sexually abused. The applicant said he feared he may have to return to his home area as he was not very literate and may be forced to work in the [site].
The applicant said he had no further claims to make.
Delegate’s decision
The delegate found several aspects of the applicant’s claims to be lacking in credibility. The delegate did not accept as credible the applicant’s claim that he completed paperwork for his father’s [business] from the age of [age]. Nor did the delegate accept that the applicant would return to that area if forced to return to Fiji now. The delegate relied on the admission allegedly made to the [corrections] officer that the applicant had no claims for protection and was only lodging the application to prolong his stay in Australia. The delegate considered the applicant’s delay in applying for protection to be inconsistent with his claimed fear of harm.
The delegate was not satisfied that harm the applicant claimed to fear was for any of the reasons set out in s.5J(1)(a) and found that the applicant was not a refugee as defined in s.5H of the Act. The delegate additionally found that there was not a real risk that the applicant would suffer significant harm if removed from Australia to Fiji.
Review application
At the time he applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record. The applicant was, at the time he made the review application, in immigration detention at [a State] Detention Facility, where he remains at the time of this decision.
Material contained on DIBP file
The Departmental file given to the Tribunal by the Secretary contains two certificates purportedly issued under s.438 of the Act. The applicant was alerted to the existence of the certificates at the Tribunal hearing.
The Tribunal has formed the view that the certificate located at folio 122 of file [number] is a valid certificate. The Tribunal finds, however, that the information covered by the certificate is not relevant to the review as it contains unsubstantiated allegations of [crime] on the part of the applicant which have not been tested in court. The Tribunal has not placed any weight on the allegations and has not, therefore, disclosed particulars of the allegation to the applicant pursuant to s.424A of the Act. The existence of the allegation was brought to the applicant’s attention at the Tribunal hearing.
The Tribunal has formed the view that the second certificate, located at folio 119 of the same file is not valid. According to the certificate, disclosure of the information covered by the certificate would be contrary to the public interest because it relates to internal deliberations of the Department. The Tribunal finds, however, that much of the material covered by the certificate relates to material received by the Department from third parties. The Tribunal has disclosed particulars of some of this material to the applicant pursuant to s.424A of Act as it considered it would be a part of the reason for affirming the decision under review. Amongst the other material covered by the purported certificate are community allegations relating to the applicant and his father, which are unsubstantiated and have not been tested in court. In the circumstances, the Tribunal considers it would be unsafe to place any weight on these allegations and has therefore not disclosed particulars of the allegations to the applicant pursuant to s.424A of the Act. The existence of the allegations was, however, brought to the applicant’s attention during the Tribunal hearing.
Additional evidence and written submissions – [date] May 2017
[In] May 2017, the applicant’s representative provided submissions and additional evidence to the Tribunal comprising:
·a statutory declaration declared [in] May 2017 by the applicant’s [family member], [Ms A];
·a statutory declaration declared [in] May 2017 by the applicant’s father, [Mr B];
·a statutory declaration made by the applicant [in] May 2017;
·a statutory declaration (including an attached letter) made in Fiji [in] May 2017 by [Ms C].
According to the representative’s submissions, the applicant satisfied the complementary protection criterion in s.36(2)(aa) as he would be subjected to a real risk of significant harm if he were to return to [Location 1].
According to the submission, the applicant was a victim of sexual abuse perpetrated by military officers on a fortnightly basis from the time the applicant was [age] over a period of two years. It was submitted that the applicant’s delay in applying for a protection visa was justified as sexual assault victims often do not disclose their abuse until many years later for several reasons including post-traumatic stress disorder. It was submitted that the applicant had not applied for protection sooner as he was the holder of a valid [temporary] visa after which time he was granted a bridging visa.
The submissions raised a new claim that the applicant had been assaulted by [Mr D], the [officeholder] of the [Suburb 1] [Temple] and this incident had caused the applicant to fear for his safety in Fiji. The submission states that [Mr D]’s family are seeking retribution and have made threats to murder the applicant and sexually assault his [sibling] if they return to Fiji.
The circumstances of the assault were described in the statutory declaration made by the applicant’s [family member], [Ms A]. According to that statutory declaration, [in] July 2015, the applicant drove a car that had been purchased for spare parts to the [Suburb 1] Temple. [Ms A] was cleaning in the Temple at the time and opened the gate to allow the applicant to come in. [Mr D] approached [Ms A] and told her that the vehicle needed to be removed from the Temple. [Ms A] informed [Mr D] that her her father was not at home and that they would move the vehicles when he returned. [Mr D] then approached the applicant and told him to remove the car. The applicant responded that the car had been purchased to enable the windscreen of another card to be replaced. [Mr D] then got angry and began to yell words to the effect that this was not a parking space for a car. [Mr D] then grabbed the applicant from behind and put him in a choke hold. The applicant was pushed to the floor. A neighbour heard what was happening and called the police. [Ms A] said she was afraid of [Mr D] and had not returned to the Temple because of the incident. [Ms A] expressed the view that if the applicant were to return to Fiji he would be subjected to serious harm and possible death.
According to the applicant’s father’s statutory declaration, he had been intending to return to Fiji with his wife and children as his visa had been cancelled. [In] October 2016, he received a phone call from [Ms C], who was a former client in Fiji. [Ms C] expressed concern when the applicant’s father told her of his plans to return to Fiji and said it would be very dangerous especially for the applicant and his [family member]. The applicant’s father said that [Ms C] had overheard a conversation about the applicant and [Mr D] at the wedding of a close family friend. When she approached the group [Ms C] realised that they were friends and family of [Mr D]’s wife. They said it was the applicant’s fault that [Mr D] had been arrested and that [Mr D]’s life had now been ruined. They expressed the belief that Australian law was too strict and justice had not been served and wanted revenge. The group told [Ms C] that they would kill the applicant if he returns to Fiji for what he has done. Following the phone call, the applicant’s father cancelled the reservation he had made for flights to return to Fiji.
The statutory declaration by [Ms C] contains information to the same effect.
Section 424A letter
On 19 May 2017, the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting him to comment on, or respond to, information the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
The particulars related to the email contained on the Department’s file from a [officer] from [a State corrections service]; the conviction of the applicant for the offence of [details deleted]; and an allegation contained on the Department’s file relating to the incident involving [Mr D].
The applicant responded to the letter through his representative [in] May 2017.
In responding to the Tribunal’s letter, the applicant indicated that he was afraid of being homeless if he was to return to Fiji. The applicant submitted that he was not aware of the threat to him from [Mr D]’s wife’s family until after his father had spoken to [Ms C] on the telephone, at a time after the visit from the [corrections officer].
The applicant acknowledged his criminal conviction and noted that he was released on patrol [sic] after [number] months of imprisonment.
The applicant claimed that there was animosity between [Mr D] and his family as the applicant’s father was not paid wages owed to him as a priest in the [Suburb 1] [Temple]. The applicant claimed that he was not disrespectful to his elders, had been raised in a religious household and have always been respectful of [his religion's] customs and traditions. The applicant to claimed that [Mr D] was currently subject to [a legal condition] as a consequence of the assault.
Tribunal hearing
The applicant appeared before the Tribunal on 26 May 2017 to give evidence and present arguments. The Tribunal also took oral evidence from the applicant’s father and [family member]. The applicant’s representative was present during the hearing.
The Tribunal asked the applicant why he was unwilling to return to Fiji. The applicant said he was unwilling to return to Fiji because he had been in a fight with his [relative, Mr D] who was the [officeholder] of a temple in Australia at which the applicant’s father had been working. There had been dispute about wages and, [in] July 2015, the applicant was assaulted by the [relative]. The police came and took the applicant to hospital. The [relative] was charged and the applicant had been informed that he was [subject to a legal condition]. The [relative] felt he had been humiliated by the applicant and his wife’s family in Fiji had been instructed to hurt or kill the applicant if he ever returned to Fiji. The [relative] felt as though he could not do much in Australia because the law was strict but it would not be a problem in Fiji. A former client of the applicant’s father had overheard a conversation at a wedding in Fiji in which members of the [relative]’s wife’s family said that they would hurt the applicant if he returned to Fiji. The applicant said he first heard about this conversation after he had been visited by his parole officer.
The Tribunal noted that a different claim had been made in the protection visa application and asked the applicant if he wished to elaborate on that claim. The applicant told the Tribunal that when he was in primary school his father ran a [business]. A military officer assaulted the applicant when his father was not there. The applicant felt he could not tell his parents what had happened. The military officer told the applicant that if he did tell, he would hurt him. The Tribunal asked the applicant whether he still held any fears relating to this incident. The applicant responded that if forced to return to Fiji he would go back to the same area in which he grew up. The applicant said that the military officer may still be living there and the officer had told the applicant at the time of the assault that if he ever told anyone what had happened he would hurt him.

The Tribunal noted that the assault occurred when the applicant was in primary school and that the applicant had lived in the same area for another [number] years before coming to Australia. The Tribunal asked the applicant whether anything happened in that period which made the applicant think there was still a risk to him. The applicant said he sometimes saw the military officer, for example on the bus, and he felt by looking at his face that he would harm the applicant again. The Tribunal asked the applicant whether the officer ever said anything to the applicant. The applicant said he did not.
The Tribunal put to the applicant that after the assault he continued to live in the same area for a significant period of time without incident. Although the military officer had threatened the applicant, it did not appear that the threat was ever acted upon. The applicant had now been in Australia for three years. Given the passage of time, it was difficult for the Tribunal to accept that there was still a real chance or risk of the military officer harming the applicant in a way which would constitute serious or significant harm. In response to prompting from his representative, the applicant told the Tribunal that the military officer knew the [relative] with whom he had a dispute in Australia as well as his wife’s family. The applicant suggested that the [relative]’s wife family might engage the military officer to harm the applicant. The Tribunal put to the applicant that it was prepared to accept that the applicant’s [relative] and military officer may know each other given that they were living in the same, relatively remote area of Fiji. The Tribunal explained that it was having difficulty accepting that the dispute with the [relative] in Australia made it any more likely that the officer, who had assaulted the applicant as a child would harm him now. The applicant suggested that the [relative] knew what had happened to him as a child and may reveal to the military officer that the applicant had disclosed what he had done.
The Tribunal explained to the applicant that Australia would only owe him protection obligations if there was no part of Fiji in which he could safely and reasonably reside. The applicant said that if he returned to Fiji he would be returning there alone and had no immediate family there. The applicant said he had no qualifications and nowhere to stay and so he would return to his home area.
The Tribunal put to the applicant that it was having difficulty accepting that there was anything other than a remote chance or risk of harm from the military officer, if the applicant were to return to another part of Fiji. This was because the military officer had not said or done anything in the [number] years before the applicant’s departure from Fiji. The applicant had now remained in Australia for three years and it was not apparent that the military officer would be aware that the applicant had returned to Fiji, if he were to return, for example to Nadi or Suva. It was not clear that the officer would know where the applicant was or have the motivation, after [number] years, to look for the applicant. The applicant had no substantive response.
The Tribunal put to the applicant that the other difficulty it had with this claim was that the conduct of military officer was criminal in nature. The Tribunal would have to be satisfied that the Fijian authorities would be unwilling or unable to provide him with an adequate and effective level of protection. The Tribunal asked the applicant whether there was any reason why he could not go to the police to complain of the officer’s conduct. After some hesitation, the applicant asked for an adjournment.
Following a brief adjournment, the applicant told the Tribunal that he used to travel with his father around Fiji and had been to all of the major cities. The applicant’s [relative]’s wife’s family had members living throughout Fiji. The applicant said that in Fiji it was easy to get out of criminal cases by bribing police officers.
The Tribunal put to the applicant that the current DFAT Country Information Report for Fiji indicated that the Fiji police force had a police to population ratio that was comparable to Australia’s. There appeared to be an adequate number of police. Because of the geographic spread of Fiji, there was some difficulty in providing advanced policing capabilities to the remote islands but on the main islands this did not appear to be an issue. The ethnic make-up of the police force roughly reflected Fiji’s broader ethnic make-up. Approximately one third of the police force was of Indo-Fijian descent. The police force was generally seen to be impartial and under effective, impartial leadership. An example was provided of an investigation in 2014 in relation to four police officers who had been implicated in a death in custody. This suggested that there was level of monitoring of police corruption or misconduct. DFAT had formed the view that the police force was generally able to protect the population from incidents of violence and criminal conduct although there had been some allegations that the police force was sometimes unresponsive. The Tribunal explained that the information suggested that the applicant could potentially access adequate and effective state protection. Although the applicant had suggested that the Fijian police were susceptible to bribery or corruption, this allegation was not supported by the country information set out in the DFAT report. The applicant indicated that he had no response.
The Tribunal noted that the applicant appeared to be having some difficulty responding to some of the issues that the Tribunal was obliged to put to him by law at a hearing. The Tribunal indicated, however that it would allow additional time for written submissions after the hearing.
The Tribunal asked the applicant to talk more about the assault perpetrated by his [relative] in July 2015. The applicant said he had been coming home late from his apprenticeship and had asked the [relative] when he was going to pay his father’s wages. The [relative] smashed one of his car’s windscreens. The applicant and his [relative] reached agreement that the [relative] would pay for the repair. After 2 or 3 weeks, the [relative] still had not repaired the windscreen. The applicant’s father had acquired another car and was going to use it to replace the first vehicle’s windscreen. The applicant moved the car inside the parking lot and when he got out, the [relative] grabbed the applicant by the neck. One of the neighbours saw and the [relative] was arrested. The applicant said he had been told by the police that the [relative] was charged with common assault and [subject to a legal condition]. The applicant said he had been called as a witness during the [relative]’s trial. The Tribunal asked the applicant whether he was in possession of any evidence as to the charges the laid or the sentence that was handed down. The applicant’s representative said that he assumed that no conviction had been recorded but had no access to any documentary evidence of the outcome.
The Tribunal noted that the assault occurred almost 2 years ago and asked whether the applicant had any further contact with the [relative]. The applicant said the police had applied for an AVO on the applicant’s behalf although the applicant did not have a copy of it. The applicant said there had been no contact. Asked whether he had any interactions with members of the [relative]’s family, the applicant said none of the [relative]’s family members spoke to the applicant. The applicant said he did not see them and no longer went to the same temple. The Tribunal noted that there had been no interactions between the applicant and his [relative] for the last two years and asked the applicant why he believed there was a real chance or risk of the [relative]’s family or his wife’s family harming the applicant now. The applicant said his father’s colleague had overheard a conversation last year in which the [relative]’s wife’s family said they would hurt the applicant if he went back to Fiji.
The Tribunal put to the applicant that there appeared to have been a dispute, the [relative] had assaulted the applicant, a neighbour had called the police and charges had been laid. The evidence suggested that the applicant had been the victim of the [relative]’s misconduct. The Tribunal put to the applicant that it was having difficulty understanding why the [relative]’s family or his wife’s family would still be so angry with the applicant in those circumstances that some two years later they would wish to inflict harm amounting to serious or significant harm upon the applicant. The applicant said he was scared the [relative] would hurt him and this had led to an AVO being taken out. The [relative] felt the applicant had been disrespectful to the temple and his elders. The Tribunal explained that he could understand why there may be animosity between the applicant and the [relative]’s family but the test for the Tribunal was whether there was a real chance or risk of serious or significant harm. The Tribunal explained that significant harm was defined for the purposes of the complementary protection criterion as including torture, being killed, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal explained that it was struggling to understand why the relatives in Fiji would be motivated to inflict that type of harm upon the applicant. The applicant responded that the [relative]’s wife was native Fijian and everyone knows that islanders have short tempers. Her family would hurt the applicant if he goes back.
The Tribunal asked whether anything had been said to the applicant or his family directly to make him think that the [relative]’s wife’s family would wish to harm him. The applicant said no. The only reason he believed this was because of the conversation which his father’s client had overheard in Fiji.
The Tribunal explained to the applicant that it also had to consider whether he could relocate to another part of Fiji or access state protection in relation to this claim. The applicant indicated that he could not avoid harm from his [relative]’s relatives as they live in various parts of Fiji, including the outer islands. Wherever he went, someone would know him as he had travelled extensively with his father. Asked whether he could report any threat from the relatives to the police before he was hurt, the applicant said he might go to another part of Fiji and not realise that a member of the [relative]’s wife’s family was living there. The applicant said that most of the family members were native Fijians and he did not know them.
The Tribunal put to the applicant that if his [relative] was [subject to a legal condition] and no conviction recorded, it was hard to see that his life had been ruined to the point that his wife’s family would wish to seek revenge. The applicant had no response.
The Tribunal invited the applicant to comment further on the information particularised in the Tribunal’s s.424A letter. The applicant told Tribunal that he had not discussed his reasons for wishing to seek protection with his parole officer because he felt the information was private. The applicant said he was also not aware at that point of his [relative]’s wife’s family’s intentions.
The Tribunal invited the applicant to talk more about his fear of being homeless if he were forced to return to Fiji. The applicant said that his home was destroyed in a recent cyclone. The applicant said he did not know anyone he could stay with, if forced to return to Fiji. The Tribunal put to the applicant that simply not having a home to return to would not appear to bring him within the definition of a refugee as the harm would not be for one of the five Refugees Convention reasons. In relation to the complementary protection criterion, the Tribunal would have to be satisfied that the harm met the definition of significant harm. The applicant said that if he returned to Fiji he would have to find a place to stay. The applicant may have to stay at the place of someone who knows his [relative] or the military officer, in which case he may be assaulted or hurt.
The Tribunal put to the applicant that other allegations appeared on the departmental file which were purportedly covered by public interest disclosure certificates. The Tribunal indicated to the applicant that only one of the certificates appeared to be valid and in so far as the information covered by the valid certificate was relevant it had been disclosed in the Tribunal’s s.424A letter. The Tribunal explained that there were other allegations covered by the certificate but the Tribunal not consider that they were relevant to the Tribunal’s decision. The gist of the allegations was disclosed to the applicant. The applicant had no response or comment to these issues.
The applicant’s representative suggested a number of issues which he considered should be explored further. In response to these suggestions, the applicant told the Tribunal that his [relative]’s position as [officeholder] of the temple was relevant. The temple was well known and the accusation of assault had tarnished his reputation. The applicant said he feared being punched, kicked and beaten up to the point where he might be killed or permanently disabled. The [relative]’s wife’s family were islanders and there is no telling what they could do. The Fijian police would not act until something had happened to him. The applicant said that Fiji was a small place and the [relative]’s wife’s family was large and lived in most towns. The applicant said that the Tribunal should treat [Ms C]’s evidence as credible because if there was not a genuine threat, she would not have said anything.
The applicant’s father, [Mr B] gave oral evidence to the Tribunal. [Mr B] confirmed that there had been dispute between him and the applicant’s [relative] over wages and suggested that he could provide evidence from his bank account showing that he had not received wages owed to him.
[Mr B] told the Tribunal that he had been planning to return to Fiji with his family and had already booked a return ticket. When [Ms C] told him of the stories going around that the applicant and his [family member] would be killed or threatened if they return to Fiji, he was afraid and cancelled the tickets.
[Mr B] confirmed that Fiji was a small place and that he had travelled around Fiji as a [priest] and marriage celebrant for many years. [Mr B] said he was well known because of his religious work in Fiji. On occasions, he performed ceremonies before [many] people. As the applicant usually accompanied him, he was also well known. [Mr B] told the Tribunal that he believed the [relative]’s relatives would be motivated to look for the applicant wherever he was in Fiji. [Mr B] expressed the view that the Fijian police could not protect the applicant as they could not be everywhere all the time.
[Mr B] told the Tribunal that he only learned about the applicant’s sexual assault after the family had arrived in Australia and the applicant told his mother. [Mr B] said the applicant would be living alone in Fiji and vulnerable to further assault by the officer. The applicant would not have his mother and father for protection. Military officers are usually posted to other locations and so the officer could find the applicant even if he moved to another part of Fiji.
[Mr B] told the Tribunal that he was afraid to return to Fiji with his son because he feared that as a genuine threat that his [other child] would be raped. [Mr B] told Tribunal that he and the other members of the family had made applications for protection visas that were still being considered by the Department.
[Mr B] gave evidence that he thought [a member of the relative’s] wife’s family had a criminal record and had been involved in physically assaulting another person by [injuring him]. [Mr B] was not sure, however, what the circumstances in which the assault occurred were.
The applicant’s [family member] also gave oral evidence attesting to the applicant’s good character. [Ms A] said the applicant had made some mistakes but was otherwise a good person. [Ms A] said she did not feel it was safe for [the applicant] to go back to Fiji. [Ms A] said she did not believe that [the relative]’s family would not harm them and said it would be easy for them to find the applicant if he were to return to Fiji.
The applicant’s representative made brief oral submissions towards the conclusion of the hearing addressing the reasons why the applicant had not disclosed the sexual assault until later in life. Whether or not there was a real risk of him being sexually assaulted again, the applicant had a subjective fear of such harm. With regard to the dispute involving the applicant’s [relative], the representative said the [relative] had felt defamed and this was a serious issue for him. The applicant expressed the view that the [relative] would want revenge because the allegations made by the applicant would bring him into disrepute amongst his community. Fiji was a tightknit community and everyone knows everybody. If the applicant went to another part of Fiji, people would talk and discover his whereabouts.
Post-hearing submissions
On 8 June 2017, the Tribunal received additional evidence and submissions comprising [bank] account statements in the applicant’s parents’ names covering the period December 2014 to June 2016; further legal submissions; and two letters from [Mr E], a [priest] attesting to the applicant’s good character and membership of his congregation. One of the letters from [Mr E] indicated the he had personally been the victim of vicious verbal abuse and threats of physical harm from [Mr D]. The letters suggest that anyone involved in a dispute with [Mr D] should keep a distance from him for fear of reprisals from him and his family and friends.
According to the legal submissions, the applicant and his family had not intended to stay in Australia permanently but had decided not to return to Fiji due to the conversation the applicant’s father had with [Ms C]. The applicant and his family were also advised by [Mr E] that [Mr D] will “seek revenge”. [Mr E] and [Mr D] had a heated argument over the phone in 2006. On the same day, [Mr D] visited [Mr E] at his family home and demanded [Mr E] fight him. The police were involved and cautioned [Mr D]. [Mr E] decided to move from his house a few months later because he was afraid of [Mr D].
According to the submissions, the applicant remains fearful of further sexual abuse. The applicant is aware that [Mr D] is an acquaintance of the military officer who abused him in Fiji. The applicant is afraid that [Mr D] will advise the military officer that he knows about the abuse and the officer will harm the applicant as a result.
The submissions assert that [Mr D] has relationships with people that have significant criminal backgrounds, do not respect the law in Fiji and are not scared to commit atrocities. The applicant’s father has heard of and seen atrocities committed by friends of [Mr D]. The applicant’s father did not wish to provide names or any other identifying details out of fear for his own safety. In [one town in] Fiji, one of [Mr D]’s friends [seriously injured another person] because he did not give him land. In [another town], a friend of [Mr D] [killed a girl] because she had refused to marry him.
According to the submissions, Fiji is a small country where everyone knows one another. The applicant’s father is a popular priest and often travelled to different towns and cities for work. The applicant is well known due to the work he did with his father. The applicant plays [a musical instrument] and performed at religious events. [Mr D]’s family and friends are located all over Fiji, including but not limited to [various locations]. The applicant fears that wherever he moves to he would still face a real risk of significant harm.
Findings and reasons

The Tribunal is prepared to accept that the applicant was sexually assaulted as a child by one or more military officers at his father’s [business] base. The applicant’s oral evidence to the Tribunal when providing an account of these experiences was emotional and appeared unaffected. The Tribunal accepts the applicant’s evidence that the abuse began when he was approximately [age] and continued until he was [age]. The Tribunal further accepts that the applicant may have a subjective fear of experiencing further sexual assault or other harm at the hands of his abusers should he return to his home area in Fiji. The Tribunal is not satisfied, however, that there is an objective basis to those fears, as required by the criteria for this visa.
The applicant remained living in his home area in Fiji for a further [number] years without experiencing any further harm or threat of harm. Although the applicant told the Tribunal that he had seen his abuser from time to time, including on the bus, the applicant told the Tribunal that the person had not said or done anything during this period which indicated an intention to harm him. At most, the applicant perceived something in the person’s mannerisms to make him feel this way. The applicant is now an adult and has been living in Australia for a further three years.
The applicant has claimed that the military officer would harm him now because he had warned the applicant not to tell anyone what had happened. After arriving in Australia, the applicant disclosed his experiences to his parents and claims that other people also now know, including the [relative] with whom the applicant and his family have been embroiled in an acrimonious dispute. Given the reticence with which the applicant discussed the assault with his immediate family, and the ongoing dispute, the Tribunal does, however, have considerable doubt that [Mr D] is in fact aware of the assault. The Tribunal is prepared to accept that [Mr D] may know the military officer in question, given that they both resided in the same, relatively remote part of Fiji. However, the applicant has not suggested that there is any closer connection between the two men and [Mr D] now appears to have resided in Australia for a significant period of time. The applicant himself seemed to be unsure of the military officer’s current whereabouts suggesting at first that he would still be in the same area, but later indicating that he may have been posted elsewhere.
In all these circumstances, and having regard to the nature of the dispute between the applicant and [Mr D] (discussed below), the Tribunal is not satisfied that there is anything other than a remote possibility that [Mr D] has disclosed, or would disclose, information about the applicant’s sexual abuse to the military officer. Given the passage of time without further incident and the fact that the applicant is now an adult, the Tribunal remains unsatisfied that there is now, or in the reasonably foreseeable future, a real chance or risk of the applicant suffering any form of harm from the officer or officers who sexually assaulted him as a child.
The Tribunal has also considered whether there is a real chance or risk of the applicant being harmed by members of [Mr D]’s family or his wife’s family should he return to Fiji now, or in the reasonably foreseeable future. The Tribunal accepts that there has been a dispute between the applicant and his family and [Mr D]. The Tribunal accepts that [Mr D] was the [officeholder] of the temple at which the applicant’s father was employed as a [priest] and that there was a dispute between the two men over unpaid wages. The Tribunal accepts that this dispute culminated in an altercation in July 2015 in which [Mr D] physically assaulted the applicant.
There are, however, a number of circumstances which cause the Tribunal to doubt that there is a real chance or risk that [Mr D] or his relatives in Fiji would be motivated to seriously or significantly harm the applicant. The evidence indicates that the applicant was the victim of the assault. The applicant did not report the assault to the police, rather a neutral third party who witnessed the assault called the police. Although there is no documentary evidence before the Tribunal as to the outcome of any charges laid against [Mr D], the applicant’s evidence suggests that [Mr D] was not imprisoned but [subject to a legal condition]. The applicant told the Tribunal that he had not had any contact with [Mr D] or any member of his family in Australia in almost two years since the incident took place. Nothing has been said directly to the applicant or any member of his family by [Mr D] or any member of his family that would indicate that [Mr D] is seeking revenge upon the applicant. The evidence before the Tribunal indicates that the applicant’s family were in fact planning to return to Fiji. The Tribunal finds on the evidence contained in the email from a [corrections officer] that, as at [date] September 2016, the applicant did not have a fear of persecution in Fiji and that the only reason he did not want to go back to Fiji was because he would be homeless. The Tribunal notes that the dispute between the applicant and [Mr D] was not raised in the protection visa application made [in] September 2016.
At hearing, the main basis on which the applicant said the Tribunal should now find that there is a real chance or risk of him suffering harm from [Mr D] or members of his or his wife’s extended family in Fiji was the evidence given by [Ms C]. The Tribunal is prepared to accept that the applicant and his father did not hear from [Ms C] until October 2016, which would explain why the claim was not raised earlier. However, the Tribunal does not find [Ms C]’s evidence that she overheard a conversation at a wedding and heard rumours that [Mr D]’s relatives wish to harm or kill the applicant and his family, to be reliable evidence of a real threat to the applicant.
In post hearing submissions, the applicant has presented additional evidence from [Mr E] who claims to have been a victim of verbal abuse and threats of physical harm from [Mr D] some eleven years ago, although he had not experienced any further difficulties since moving. The applicant has suggested that [Mr D] is related to or is associated with persons who have committed serious criminal violence in Fiji. The applicant also has suggested that because [Mr D]’s relatives are native Fijians they “could do anything” and “have short tempers”. The applicant has claimed that because of his position as [officeholder] of a large and significant temple, the assault charges constitute a particular affront to [Mr D]’s reputation.
The Tribunal has considered these arguments and given weight to the corroborative evidence of the applicant’s father, [family member], [Ms C] and [Mr E] but does not accept that that there is a sound basis for finding that there is a real chance or risk of the applicant being harmed. The Tribunal does not accept that a person’s race, or relationship to other violent persons is a reliable indicator of that person’s propensity to inflict harm. Whilst a person’s past behaviour might provide some indication of their future conduct, and the Tribunal is prepared to accept that there is real animosity between the applicant and [Mr D] and his family, the Tribunal remains unsatisfied having regard to the totality of the evidence that there is a real chance or risk that [Mr D] would engage his or his wife’s relatives in Fiji to inflict serious or significant harm upon the applicant, or that there is a real chance or risk that they would do so of their own volition.
The Tribunal has made these findings on the basis that the applicant would be returning to his home area in Fiji. For this reason it is not necessary for the Tribunal to consider the applicant’s ability to relocate internally or his ability to access state protection.
The applicant has additionally claimed that he is unwilling to return to Fiji as he would be homeless. The Tribunal accepts that the applicant’s family home may have been damaged or destroyed since his departure from Fiji. Whilst the applicant’s immediate family may not return to Fiji with him, the applicant did suggest at hearing that he had friends and other relatives he might stay with. The applicant is a young person of working age. The applicant has also commenced a trade qualification in Australia. The Tribunal is not satisfied that any financial or accommodation difficulties the applicant might experience upon return to Fiji amount to persecution for any of the five reasons set out in s.5J(1)(a) for the purposes of s.36(2)(a). Nor is the Tribunal satisfied that there is a real risk that the applicant would experience any difficulties amounting to significant harm as defined for the purposes of s.36(2)(aa).
In his protection visa application, the applicant also asserted generally there was no safety in Fiji and that anarchy and restlessness were on the rise. The applicant said that the state did not have sufficient resources to cope with these problems. The applicant has not submitted independent country information in support of this claim and it does not find support in the country information generally available to the Tribunal and discussed with the applicant at hearing. In any event, the Tribunal is not satisfied on the evidence that any harm of this kind would involve systematic and discriminatory conduct in accordance with s.5J(4) for the purposes of s.36(2)(a). Nor is the Tribunal satisfied on the evidence that the applicant faces a real risk of criminal attack or violence that is not faced by the population of Fiji generally as required by s.36(2B)(c) for the purposes of s.36(2)(aa).
For the reasons set out above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in accordance with s.5J of the Act. The Tribunal is not satisfied that the applicant is a refugee for the purposes of s.5H of the Act. 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 there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Although members of his immediate family have applied for protection visas, 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.
R Homan
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.
…

[2017] AATA 1143

21 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction