1701200 (Refugee)

1701200 (Refugee) [2021] AATA 1604 (16 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1701200
COUNTRY OF REFERENCE:                   Fiji
MEMBER:David McCulloch
DATE:16 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 April 2021 at 8:21am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – involvement in organisations led by Oni Kirwin – Pacific Indigenous Samaritan Association Inc (PISAI) – Fiji Native Government in Exile – low level political involvement on return to Fiji – relative of former public office bearer – lack of family or other support – financial difficulties – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 21 September 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 14 April 2021 at 9.30am. The Tribunal was assisted through the use of an interpreter in the Fijian and English languages.
In the hearing, the Tribunal also took evidence as requested by the applicant from his two sisters, who live in Australia, [Ms A] and [Ms B].
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 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Fiji, 27 September 2017, a copy of which was provided to the applicant at hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant first arrived in Australia [in] November 2005 as the holder of a [visitor] visa, and departed [in] January 2006. The applicant returned to Australia as the holder of a [visitor] visa [in] July 2008. The applicant’s second visitor visa expired [in] October 2008.
The applicant was unlawful until he was granted a bridging visa on 21 December 2009 as a potential applicant; the applicant then applied for a [partner] visa on 24 December 2009.
The applicant was granted bridging visas until the [partner] visa was granted on 30 August 2011. There was a subsequent breakdown of the applicant’s relationship and he was refused the [permanent partner] visa on 20 February 2012. The applicant applied for review of the decision and was granted bridging visas for the review until the Tribunal affirmed the decision on 13 February 2014 (AAT case number 1202890).
The applicant was granted further bridging visas pending an application for Ministerial intervention, which was denied on 22 July 2015. The applicant was granted a bridging visa on departure grounds. The applicant applied for protection on 20 August 2015. The applicant’s protection visa application was ruled invalid on 29 September 2015 due to failing to attend a biometrics appointment.
The applicant’s bridging visa expired on 6 November 2015. The applicant was again unlawful until he was granted a bridging visa on 30 September 2016 as a result of his second, valid, protection visa application made on 21 September 2016.
The following information is apparent from the application for protection forms. The applicant was born on [date] in [Town 1], [Province 1], Fiji. The applicant is a Christian of Fijian ethnicity who speaks, reads and writes English and Fijian (Bau). The applicant married [in] May 2009 and was widowed [in] March 2012. The applicant lists one address in Suva from January 1960 until July 2008. The applicant attended primary and secondary school from [year], graduating from [School 1], [Suburb 1] in [year]. The applicant worked as a labourer in Suva from January 2000 until December 2007. The applicant worked as the manager of a [business] in [Suburb 2], Australia from June 2009 until October 2015. The applicant has since been unemployed.
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.
In the invalid application forms which are included on the Department file, the applicant states that he has [number] sisters and [number] brothers, and his mother and father. The applicant lists one sister and one brother as living in Australia, and otherwise does not specify his family’s residences. The applicant stated that he worked as a [Occupation 1] for [Company 1], Suva from June 1979 until April 1986. The applicant then worked as a [Occupation 2] for [Company 2] from April 1986 until May 1990. The applicant was then self-employed, selling [product] in Suva from May 1990 until July 2000.
In the invalid application form, the applicant claims that his only brother with whom he was living died, and there was no work, the government was in turmoil and people were forced to retire at 55. They were all scared and had no one to turn to, and all of his brothers and sisters lived in Australia, so the applicant took his chances and had to leave. The applicant claims that, if he returns to Fiji, he will be homeless, and that his [relative] was [a public office bearer], [Mr C], who was asked to [take on a new role] by the interim government and he refused because it was illegal. The applicant claims that, due to this, the whole [family] are blacklisted. The applicant claims he fears for his life and he is [age] years old, and has no one to turn to. The applicant claims the authorities cannot protect him as they are all in it together, and that he cannot relocate as Fiji is a small country with nowhere to go.
Independent information
DFAT Country Report – Fiji, 27 September 2017 (a copy of which was provided to the applicant in the hearing) provides variously as follows:
Indigenous Fijians (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. Prior to European contact, Fijian culture was fluid, but was generally hierarchical and patrilineal, and structured into a number of families, tribes, clans, and confederations.
Indigenous Fijians constitute nearly 60 per cent of Fiji’s population. Despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government. They are under-represented in business, professional services and the transport sector.
In part to protect the Fijian culture and way of life, early British governors established a ‘native administration’, which entrenched the tribal / hierarchical relationships prevalent in parts of Fiji at the end of the 19th century. Though modified and renamed, much of this administrative system continues to exist today. It consists of an iTaukei Affairs Board (the ‘guardian’ of the Fijian administrative system and other aspects of Fijian custom); an iTaukei Lands Commission (which registers the names of each member of a mataqali, or tribe); the iTaukei Land Trust Board (which manages native land leases); provincial (yasana) councils; and district (tikina) councils. Other elements of the ‘native administration’, such as the Great Council of Chiefs (Bose Levu Vakaturaga) which was once able to appoint Senators, have been disbanded by the interim government in the name of removing indigenous privilege as part of its attempts to de-racialise Fijian politics.
The continued existence of the indigenous Fijian administration (provincial councils and the iTaukei affairs ministry) is a minor form of positive discrimination towards indigenous Fijians. The overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. Other services, including rural development, are provided through the indigenous Fijian administration and could be considered to unfairly advantage these groups on the basis of their ethnicity.
In remote rural and outlying island areas, indigenous Fijians are generally an overwhelming majority of the population and are unlikely to be the victims of societal discrimination. In many cases, there is strong societal cohesion and a strong degree of cooperation between indigenous landowners and Indo-Fijian tenants (see Land Rights).
Overall DFAT assesses there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians.[1]
[1] DFAT Country Report – Fiji, 27 September 2017, paras 3.11 – 3.16
RELIGION
The 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion. The Constitution provides specifically for protection from religious discrimination. Freedom of religious belief is widely respected in practice in Fiji. Fiji’s government states its commitment to addressing discrimination and promoting a vision of equal rights and equal treatment for all Fijians regardless of race, including freedom of religion and belief. Designated public holidays include Christian, Hindu and Muslim holy days. In October 2015, retired Major General Jioji Konrote, a Seventh-day Adventist, was elected as the country's first non-Methodist President.
The idea of defining Fiji as a Christian state (even if only symbolically) retains some currency – this has been promoted by some groups who wish to restore indigenous prerogatives such as a more prominent role for Fiji’s chiefs. The current government abolished those prerogatives as inconsistent with democracy and equal treatment of all Fijians. The government rejected proposals for a recognition of Fiji as a Christian country during the 2013 consultations in the lead-up to the drafting of Fiji’s new constitution. Several (small) groups were charged with sedition after they sought to proclaim the existence of regional ‘independent Christian states’ to challenge government policy on indigenous issues.[2]
[2] DFAT Country Report – Fiji, 27 September 2017, paras 3.17 – 3.18
…
POLITICAL OPINION (ACTUAL OR IMPUTED)
Fiji’s Constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
The Political Parties (Registration, Conduct, Funding and Disclosures) (Amendment) Decree 2013 and Electoral Decree 2014 provide the legislative framework for the registration and conduct of political parties. Some of the administrative processes for establishing a political party are restrictive: for example, there are harsh penalties for non-compliance, parties must gather 5,000 signatures to register and candidates can be barred from elections for any election-related offences.
A range of decrees in place prior to the 2013 Constitution limits these rights in practice. In particular, The Public Order (Amendment) Decree 2012 permits the Commissioner of Police to prohibit or subject to such conditions as he/she sees fit any procession, meeting or assembly on the grounds of public safety or public order. Under this decree, from June 2012 until late 2014, NGOs, political parties and others were required to seek permits to hold public meetings. At times these permits were withheld (further detail is provided below at relevant sub-sections). The implementation of this policy gradually became less strict, and by late 2014 political groups did not generally need to seek permission to hold public meetings. The new Public Order Amendment Act 2017 removes the requirement for a permit for a meeting in a public place; a permit is still required for a meeting organised or convened in a public park or on a public road.
Credible sources reported an increase in self-censorship by members of civil society on political issues. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.
Opposition parties
A range of opposition political parties contested the 2014 elections. Most representatives of opposition political parties have told DFAT that police and military routinely monitored and followed them during the campaign. Some reported continuing monitoring in 2017, intensifying in the lead up to the 2018 election. Monitoring was in some cases relatively open and cordial (for example, a polite telephone call enquiring after the subject’s movements and plans), sometimes annoying (for example, a vehicle parked outside the home), and sometimes intimidating (for example, overt police presence at a political gathering).
Credible contacts allege that the government brought charges against opposition political party leaders, including former Prime Ministers Qarase and Chaudhry, in order to disqualify both from running in the 2014 election: according to the Constitution, individuals convicted of a crime with a maximum sentence exceeding 12 months are ineligible to run as candidates. Charges against Chaudhry relate to bringing foreign currency into the country without informing the reserve bank. Those against Qarase relate to abuse of office while he was Chairman of Fijian Holdings from 1992 to 1995. Credible legal professionals in Fiji assessed that the grounds for bringing these cases to court were weak and pointed out that more serious allegations against other people had not been prosecuted.
Since Fiji’s 2014 election, three Opposition MPs have been disqualified from Parliament for periods of at least two years:
·on 29 September 2016, SODELPA MP Ratu Isoa Tikoca was suspended until the 2018 election for making statements that ‘intentionally targeted Fijians who are Muslims or adherents to Islam’;
·in June 2016, National Federation Party (NFP) MP Tupuo Draunidalo was suspended until the 2018 election for insulting the Education Minister; and
·in May 2015, SODELPA MP Ratu Naiqama Lalabaluva was suspended for two years for making offensive comments about the Speaker.
On 10 September 2016, police detained opposition NFP Leader, Dr Biman Prasad; opposition SODELPA Leader, Sitiveni Rabuka; Fiji Islands Council of Trade Unions Leader, Attar Singh; former SODELPA politician and academic, Dr Tupeni Baba; Director of the NGO Pacific Dialogue, Jone Dakuvula; and Fiji Labor Party Leader, Mahendra Chaudhry. They were arrested ‘on suspicion of having breached the Public Order Act 1969 (as amended)’ for attending a public meeting that police had not permitted. Credible sources informed DFAT that all detained were taken to a police station in Suva, charged and subsequently released. Authorities dropped the charges on 17 October 2016, citing insufficient evidence and noting the arrests ‘appeared selective’.
Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.[3]
…
[3] DFAT Country Report – Fiji, 27 September 2017, paras 3.38 – 3.46
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.[4]
[4] 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. A copy of this report was given to the applicant in the hearing and discussed with him:
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 & Anor (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 & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Fiji and accordingly his claims will be assessed against Fiji.
In the hearing, the Tribunal explored with the applicant his family situation and political history in Fiji and Australia.
The applicant indicated that one of the his brothers died in Fiji and the remainder of his siblings live in Australia. The applicant indicates that a difficulty for him in returning to Fiji is that he has no family support there. This was reiterated in evidence given by the applicant’s two sisters when giving evidence at the hearing. The applicant indicated that his lack of family support was particularly acute because of his age.
The applicant indicated that the other reason that he cannot return to Fiji is because he has been involved in organisations led by Oni Kirwin and is thus on a blacklist in Fiji. When the applicant’s sister, [Ms B], gave evidence she also indicated that the applicant faces harm on return to Fiji because of her involvement in Oni Kirwan’s organisations. The Tribunal asked the applicant to name these organisations, and the applicant, at various points in the hearing, tried to recall the names of the organisations. Apart from indicating ‘Christian state’, the applicant was not able to correctly named the organisations as the Pacific Samaritan Indigenous Association Inc or the Fiji Native Government in Exile.
The applicant indicated that last time he went to a meeting of the organisations was in 2019, before COVID-19 limited meetings. The applicant indicated that he had attended about six meetings over a period of three years.
The applicant indicated in the hearing that he was still a supporter of the aims of the organisations, which were directed towards Fiji becoming a Christian state.
The Tribunal put to the applicant that it might consider that his inability to be able to accurately name the organisations could indicate a lack of knowledge or commitment to the organisations. In response, the applicant unsuccessfully tried again to recall the names of the organisations.
The Tribunal explored with the applicant in the hearing how he would be politically involved on return to Fiji. In response the applicant indicated that he would be a member of the opposition party, SODELPA. The applicant indicated that he would just be an ordinary member of the party. This would be the extent of the applicant’s political involvement.
The Tribunal discussed with the applicant independent information extracted in this decision in relation to organisations run by Oni Kirwin and a risk to the applicant in Fiji as a result of being involved in either the Pacific Samaritan Indigenous Association Inc or the Fiji Native Government in Exile and because of association with Oni Kirwin.
The Tribunal put to the applicant that information in the DFAT report assessed that individuals associated with these two organisations are at a low risk of harassment or detention in Fiji solely as a result of being members of these organisations. The additional Departmental research suggests no or limited knowledge in Fiji of these organisations or adverse treatment towards its members.
The independent evidence indicates that the risk of harm would be limited to an individual in Fiji who sought to advocate for secession. The Tribunal indicated to the applicant that clearly he would not be in such a position because he had indicated that, on return to Fiji, his political involvement would be limited to being an ordinary member of SODELPA.
The applicant was given the opportunity to comment on this evidence and its relevance. In response, the applicant indicated that free speech in Fiji is not allowed and that the applicant would be arrested if he spoke out.
In relation to this comment, and the risk to the applicant more broadly because of future political involvement in Fiji, the Tribunal put to the applicant the information in the DFAT report that there is the ability to be politically active in opposition to the Government. The DFAT report assesses that while there may be some risk to senior members and leaders of opposition parties, it does not indicate any risk to ordinary members. As indicated, at the hearing the applicant indicated that he would only be an ordinary member of SODELPA.
In response, the applicant repeated that freedom of speech is not allowed in Fiji. The applicant also referred to having wanted to attend a SODELPA meeting in Sydney but was not able to do so as he was out of Sydney.
Considering all of the evidence, while the Tribunal accepts that the applicant has had some association with the organisations led by Oni Kirwin, it considers that the level of the applicant’s engagement and knowledge of these organisations is limited, as demonstrated by the applicant in the hearing not being able to name the organisations.
In any event, even if the Tribunal was to accept substantive involvement in these organisations, the Tribunal considers that the independent evidence extracted and discussed with the applicant in the hearing indicates no or limited risk in Fiji as a result of having been associated with these organisations. The exception is Oni Kiwin, the leader of the organisations, who the Tribunal accepts has been blacklisted from Fiji. The independent evidence makes clear that the risk would be limited to an individual who on return to Fiji sought to actively advocate for secession and a Christian state. The Tribunal is not satisfied that the applicant would fall into such a category. The Tribunal is not satisfied that there is a blacklist in Fiji of individuals associated with these organisations, other than Oni Kirwin.
The Tribunal is therefore not satisfied that the applicant faces a real chance of serious or significant harm as a result of having had involvement in Australia in either the Pacific Indigenous Association Inc or the Fiji Native Government in Exile, or otherwise because of having been associated with Oni Kirwin.
The Tribunal is not otherwise satisfied, particularly given the information in the DFAT report, that being an ordinary member of SODELPA, which the Tribunal accepts that the applicant would be, would lead to a real chance of the applicant facing serious or significant harm as a result of such political involvement. The Tribunal is not satisfied that the evidence demonstrates that freedom of political communication in Fiji is curtailed as far as ordinary members of political parties are concerned.
The applicant in this current protection visa application did not repeat or maintain claims made in his earlier invalid application that he faces harm in Fiji because his whole family has been black listed because a relative of the applicant who was [a public office bearer] refused [a specific request of the government] when asked. Neither did the applicant in the hearing indicate that this was a source of fear for him in returning to Fiji. The Tribunal is therefore not satisfied that the applicant is maintaining a risk of harm on this basis and/or that there exists a real chance of serious or significant harm to the applicant on this ground.
The Tribunal accepts that all of the applicant’s surviving siblings are in Australia and his degree of family support in Fiji is limited, which would make his return to Fiji after many years in Australia difficult, including from a financial perspective. The Tribunal is sympathetic towards the applicant in this respect about practical and integration issues in returning to Fiji. However, as noted to the applicant in the hearing, harm due to financial problems or lack of family support would not result in serious or significant harm for the purpose of protection criteria. The harm would not be for a refugee criterion reason. Such harm would not fall within the definition of significant harm for the purpose of the complementary protection criterion. The applicant was given the option to comment on this view, but did not substantively do so.
The Tribunal is not satisfied that the applicant meets protection criteria as a result of a lack of family or other support or because of financial or other difficulties reintegrating into Fiji after many years in Australia.
The applicant asked the Tribunal if there were any options for him to apply for a work visa in Australia. The Tribunal indicated that such advice was beyond the Tribunal’s role. The Tribunal did indicate to the applicant that he would have the option if the protection visa was denied, to seek Ministerial intervention to allow him to stay in Australia on compelling or compassionate grounds.
Given the Tribunal’s findings, it is not satisfied that the applicant faces a real chance of serious harm for a refugee criterion reason, or significant harm on return to Fiji for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. 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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
…
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.
…
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.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…

[2021] AATA 1604

16 April 2021

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