1702764 (Refugee)

[2018] AATA 424

1702764 (Refugee) [2018] AATA 424 (25 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702764

COUNTRY OF REFERENCE:                  Fiji

MEMBER:K. Chapman

DATE:25 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 January 2018 at 2:06pm

CATCHWORDS
Protection visa – Fiji – Particular social group – Divorced women – Race – Hindu – Family violence – Forced reconciliation – Cyclone Winston – Delay in applying for protection – Return visits to Fiji – Effective protection

LEGISLATION
Migration Act 1958, ss 5(1), 5J-5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The [applicant], who claims to be a citizen of Fiji, applied for the visa [in] July 2016. Her written claims for protection concern her fearing harm as her home and village were destroyed by Cyclone Winston, she has no resources to start again, she has nowhere to live, and she cannot earn an income in Fiji to support herself. The delegate refused to grant the visa on the basis that there was not a real chance that she would face serious or significant harm if she returned to Fiji. The applicant raised other claims at the review hearing which will be addressed in greater detail below.

3. On 17 February 2017, the applicant applied for review of the visa refusal decision, providing a copy of that decision with her application for review. The applicant initially appeared before the Tribunal on 29 August 2017 to give evidence and present arguments. After some time during that hearing, the applicant indicated she was feeling unwell and the hearing was adjourned. The hearing resumed on 7 September 2017 and was successfully completed. The applicant gave her evidence in English during both hearings and the Tribunal observed her to have a strong command of the English language. She indicated initially during the first review hearing that she was well enough to give evidence, and also indicated she was well enough to give evidence during the second review hearing. The Tribunal is satisfied that the applicant had a fair opportunity to present her case. 

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.  

9. 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

10. 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

    Country of reference

11. According to the protection visa application, the applicant claims to be a citizen of Fiji. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Fijian national. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

12. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3).

    Issues

13. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Fiji, there is a real risk she will suffer significant harm.

    Documentary evidence before the Tribunal

14. The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:

    a.the applicant’s protection visa application forms lodged [in] July 2016 (including a handwritten covering note dated [in] March 2016, Certificate of Completion in [a subject], [Australian] Marriage Certificate regarding marriage to her second husband [in] October 2011, and identity, residence, medical, employment and vehicle documentation from Australia);

    b.the Departmental delegate’s visa refusal decision dated [in] February 2017 (a copy of which was provided to the Tribunal by the applicant);

    c.the application for review submitted on 17 February 2017;

    d.Departmental administrative and Movement records; and

    e.a copy of the applicant’s Fijian Driver Licence and current Fijian passport received at the review hearing.

    Claims for protection

15. The applicant’s written claims for protection are as follows:

    a.she left Fiji because, “I was here in Australia & that was why I originally left Fiji”;

    b.she thinks the following will happen to her if she returns to Fiji, “I will have nowhere to live & no ability to earn and income to support myself”;

    c.she did not experience harm in Fiji;

    d.she did not seek help within Fiji;

    e.she did not move or try to move to another part of Fiji to seek safety as, “The whole of the countryside & Island was damaged & destroyed”;

    f.she does not think she will be harmed or mistreated if she returns to Fiji;

    g.she thinks the authorities of Fiji can and will protect her if she returns; and

    h.she cannot relocate within Fiji, “Because my family home & village has been totally destroyed by the cyclone & there is nothing left for me back home - & I did not have the money or resources to rebuild & start again”.

    Evidence at the first review hearing

16. The applicant’s oral evidence may be summarised as follows. She informed the Tribunal that she completed the protection visa application by herself, all of her claims for protection were contained in that application, she signed the application, she understood all of her claims for protection and her written claims for protection were accurate. The applicant outlined that she lived at [Town 1], Fiji from her birth until she moved to Australia. She confirmed that she had returned to [Town 1] from Australia on previous occasions. The applicant conducted her schooling in Fiji and completed [a] course. She performed volunteer work as [an Occupation 1] in Fiji and did not undertake paid work in that country. The applicant lived with her parents until she married her first [husband] in 1990. She gave birth to [daughters] in [specified years], with her marriage ending around 2011. The applicant married her second husband, [Mr A] in 2011 (the [Australian] Marriage Certificate submitted by the applicant indicates this marriage took place [in] October 2011 in [a location] when she was [age] years old and [Mr A] was [age] years old). The applicant advised that she divorced [Mr A] in January 2017.

17. The applicant explained that her [daughters] live with their father ([her] first husband) in a house in [Town 1], with [one daughter] working in a shop. Their father does not have continuous work and [that] daughter helps to support [him]. The applicant’s brother also lives in a house in [Town 1] and works as [an occupation]. She talks to her [daughters] frequently, to her brother occasionally, and not at all to her first husband. The applicant described it being hard for her first husband and daughters to survive, but with the work of her eldest daughter and his occasional work they get by. She confirmed there were no other problems for the family in [Town 1] and that there were no major health issues for her family members.

18. The applicant has not been found guilty of any offences, nor is she subject to any investigations. She obtained her current Fijian passport [in Australia] (it was issued [in] 2016). The applicant has only ever been in Fiji and Australia. The applicant confirmed the following information recorded in the Departmental delegate’s decision as correct: she first arrived in Australia [in] November 2008 holding a [temporary] visa, then travelled to and from Fiji on several occasions as the holder of additional [temporary] visas; she applied for a Partner visa in Australia [in] December 2011, then returned to Fiji holding a [Bridging Visa] during 2012 and 2013, with her last entry into Australia being [in] November 2013; during her trips to and from Australia she departed Fiji legally through the Airport using her own passport; and she was refused the Partner visa, the Tribunal (differently constituted) affirmed that decision, she applied for judicial review, [in] March 2016 she withdrew her judicial review application, [in] March 2016 she lodged an application for protection which [in] June 2016 was determined to be invalid due to biometrics not being provided, and [in] July 2016 she lodged a valid application for protection. Whilst in Australia the applicant has acquired 3 years experience in the [specified industry] as [an Occupation 1]. She would like to study further but has insufficient funds to do so.

19. When asked by the Tribunal how long she wanted to stay in Australia, the applicant responded ‘forever’ because she has been here for several years, likes the way the country works, and she is able to look after and support herself here. She cited future opportunities for work and study being available. The applicant outlined that she held a permanent part time job in [a specified industry], purchased a car with a loan and had credit card debts. She has [an age] year old [relative] in Australia who runs a [business] and is married to an Australian citizen, as well as her [age] year old mother who is unemployed and is divorced from an Australian citizen. The applicant indicated her family being in Australia, having left Fiji 6 years previous, and there being no future in Fiji, as reasons why she wanted to remain in Australia.

20. When asked by the Tribunal what she feared if she had to return to Fiji, the applicant responded that she is not welcome in her family because her daughters live with her first husband. She claimed to have no place to go back to, no money and stated that it would be hard to start again in Fiji. The applicant also outlined that she spent money on visas to come to Australia. The applicant explained that her Partner visa was refused due to a ‘dob in’, but she claimed the relationship was genuine. The Tribunal noted that when differently constituted that visa refusal decision was affirmed and asked the circumstances of her application for judicial review. The applicant advised she did not have enough money to continue with that application so withdrew it. When asked by the Tribunal when she separated from her second husband, the applicant initially changed tack with her evidence, indicating they were separated under one roof. She then stated she could not recall when they were separated but noted they were divorced in January 2017. The Tribunal observed her demeanour to be evasive during the provision of evidence on this topic.

21. When asked by the Tribunal if she had any other fears about returning to Fiji, the applicant responded that she had a fear of not being welcomed by her family. She cited Hindu culture as taking a dim view of divorcees. The applicant confirmed there was no problem for her daughters or her brother in Fiji. When asked by the Tribunal to provide more detail of her not being welcomed, the applicant advised she had not talked to her first husband in a long time but previously he had been violent towards her and she was worried to contact him in person. When asked by the Tribunal why she had not raised this issue in her application for protection, the applicant stated that she just thought about the cyclone and that she had nothing to go back to. She claimed she was prevented from living in a home in Fiji because she didn’t know where to start and that it was hard to live with the income available in Fiji. When asked by the Tribunal how her circumstances were different to the rest of the Fijian population, the applicant replied she had nothing to start with and no money to take back with her.

22. The Tribunal drew to the applicant’s attention that in her application for protection she indicated at questions 91, 94 and 95 that she did not experience harm in Fiji, did not think she will be harmed or mistreated if she returned to Fiji, and she thinks the authorities would protect her if she returned to Fiji. The applicant confirmed this was correct. With respect to the economic situation in Fiji, the Tribunal raised with the applicant that the harm she says she will suffer appears to apply to the whole Fijian population and appears not directed at her personally, which might suggest she does not have a well founded fear of persecution or that there is not a real risk that she will suffer significant harm if she returned to Fiji. The applicant indicated she had not mentioned these matters in her application for protection, before advising she has a fear of her first husband if she returns but doesn’t know what the circumstances of this would be. When asked by the Tribunal why she did not raise her fear of her first husband in her written claims for protection, the applicant replied “I don’t know why I didn’t write it.” She added she felt more comfortable talking about the topic in person. The Tribunal raised with the applicant that the instructions on the application for protection indicate to place all claims in the written application and invited her comment. She replied that she should have written it in the first place, but at the time she was focused on the cyclone, with her fear being how to start again. She added that she lived and worked in Australia and loved this country.

23. The Tribunal drew to the applicant’s attention that in her written claims she did not refer to a fear of being persecuted in Fiji for reasons of race, religion, nationality, membership of a particular social group or politicial opinion, and this might suggest she does not have a well founded fear of persecution and therefore did not meet the definition of being a refugee. She was invited to comment and responded that her only request was that she should be given a chance to live in Australia. The Tribunal raised with the applicant that the harm she referred to in her written claims for protection did not appear to involve her being arbitrarily deprived of her life; or having the death penalty carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment, and therefore the harm would not appear to amount to significant harm for the purposes of complementary protection. She was invited to comment and responded that nothing is happening to her whilst living in Australia and she didn’t know the circumstances for her family in Fiji if she returned there. The applicant added that she was referring in her claims to being fearful of her first [husband]. When asked by the Tribunal, she confirmed that she had last spoken to [her first husband] “a long, long time ago” in relation to their daughters. The Tribunal asked the applicant if [her first husband] had ever threatened her in the past. She replied that he was always violent, on and off. She added that she could not complain due to cultural reasons as a female. The applicant then described having items thrown at her and being hit by [her first husband], indicating her own family told her to live with him.

24. The Tribunal raised with the applicant the following country information referred to at page 3 of the Departmental delegate’s decision. ‘The Fijian Government had committed funds to rebuild social infrastructure damaged by cyclone Winston’, and ‘no information was located which indicates anyone has been discriminatorily denied access to cyclone relief in Fiji,’ and ‘there is no information before me to indicate that the applicant would be denied access to employment opportunities or social security in Fiji’. The Tribunal indicated that this information did not tend to support her claims that she would face or suffer any harm on account of the aftermath of Cyclone Winston if she returned to Fiji and invited her comment. The applicant advised the Tribunal that her written claims related to Cyclone Winston of February 2016 and her claims in oral evidence at the review hearing relate to her first husband. She then indicated that the Fijian Government had not assisted all people affected by Cyclone Winston. The applicant explained that her personal situation differs from the general population because she has no money and could not earn much if she worked in Fiji. When asked by the Tribunal why she could not work in the [specified industry] given she is educated and speaks good English, the applicant advised that “I can get work in Fiji”, adding she would not be able to afford the expenses of daily life such as accommodation and transport. When asked by the Tribunal how her situation differed from the general population, the applicant replied that it is difficult to restart her life in Fiji as she is not established whereas others are.

1. The Tribunal raised with the applicant the provisions of s.423A of the Act relating to the requirement for an adverse inference on the credibility of a claim to be drawn if satisfied the applicant does not have a reasonable explanation for failing to raise the claim before the Departmental delegate’s primary decision on the visa was made. The Tribunal drew the applicant’s attention to her oral claim, first raised at the review hearing, regarding harm she feared from her first husband, noting it appeared that she had provided her evidence regarding [her first husband] in a vague and inconsistent fashion. When asked by the Tribunal why she delayed in raising this claim, the applicant advised she wanted to raise the matter in an interview to explain her fear.

2. When asked by the Tribunal why she had not applied for protection earlier given she had travelled to Australia previously, the applicant indicated that she was in Australia and feared her first husband in Fiji. She told the Tribunal that she separated from [her first husband] around 2007, then changed tack advising she was still married to him, before advising she divorced him in 2010. The Tribunal observed the applicant to display an evasive demeanour and provide vague evidence concerning this issue. The Tribunal raised with the applicant that the Departmental delegate’s decision refers to her lodging a Partner visa application in Australia [in] December 2011, with the applicant advising she met [Mr A] in Australia in 2010 after divorcing her first husband. The Tribunal drew her attention to the delegate’s decision referring to her multiple travel to and from Australia between 2008 and 2010, with the applicant commenting she was separated from her first husband during this period. The Tribunal raised with the applicant that her evidence concerning when she separated from [her first husband] appeared vague and invited her comment. She responded that she was under stress and couldn’t remember dates, before advising that she was ‘separated under one roof’ from [her first husband] as at [a date in] November 2008 when she arrived in Australia holding a [temporary] visa. The applicant indicated she was still living with [her first husband], but not as husband and wife, [in] October 2009 when she next arrived in Australia holding a [temporary] visa. She maintained that in 2009 she was living with her first husband but separated from him.

3. Regarding her next visit to Australia [in] November 2010, as noted in the Departmental delegate’s decision, the applicant was not sure if she was still living with [her first husband] because she had been “in and out of the house so many times”. The Tribunal raised with her that her evidence concerning [her first husband] appeared vague and inconsistent asking if there was any reason for this, to which she replied “no”. The applicant advised her father died in 2000 and her mother was worried about what society would think of her divorce so she kept it quiet. She added that her first husband hit [her] with a belt before she came to Australia. When asked by the Tribunal, the applicant confirmed she returned to Fiji in 2009 to the same house with [her first husband], adding that in 2010 she was not in a relationship with him but stayed with her mother and brother and also sometimes at [her first husband’s] house. When asked by the Tribunal if she suffered any harm after 2010 from [her first husband] the applicant replied “no”. When asked by the Tribunal why she would fear harm from him now, the applicant responded that he knows she was married in Australia, he is short tempered and she fears him as she was married a second time. Regarding her return to Fiji [in] November 2011, the applicant advised she stayed with her mother and brother, adding she had not lived with [her first husband] after her divorce around 2011. When asked by the Tribunal if the last time she lived with [her first husband] was 2010 as she previously stated, a long pause ensued before the applicant confirmed that this was the case.

4. When asked by the Tribunal why she did not apply for protection when she came to Australia the first time (which was [in] November 2008 according to the Departmental delegate’s decision), another long pause ensued before the applicant responded “I don’t know why I didn’t apply.” The Tribunal asked her again why she did not apply for protection in November 2008 and the applicant replied that she “didn’t think of the harm then…now knows of the harm” and wants to apply for protection now. When asked by the Tribunal why she did not apply for protection in November 2009 after arriving in Australia again, the applicant responded that her answer was the same as the previous question. The applicant indicated to the Tribunal that she feared harm from her first husband following her second marriage and conceded this issue was not raised in her written application for protection. The Tribunal confirmed with the applicant that she was married to her second husband in 2011 and raised with her that she had returned to Fiji several times between 2011 and 2013, yet did not apply for protection during that period. The applicant indicated that she was married to her second husband and living with him in Australia during this period and therefore was not living with her first husband during that time. When asked by the Tribunal if she would live with her first husband if she returned to Fiji, the applicant replied that she would not but things might happen if she returned. The Tribunal then took an adjournment, following which the applicant indicated she was ill and could not continue with the review hearing. Accordingly, the Tribunal adjourned the first review hearing and indicated to the applicant that the matter would be resumed at a future date and if she was not well enough to attend then she could provide medical evidence for consideration. The Tribunal notes that the applicant did not submit any medical evidence.

   Evidence at the second review hearing

5. The applicant confirmed to the Tribunal that she was feeling well enough to give evidence. The Tribunal raised with her that during the previous hearing she advised she could obtain work in Fiji, but the cost of accommodation and transport was high. The Tribunal noted that she was educated, trained in [Occupation 1], spoke very good English, had found work and established herself in a new country and that this tended to suggest she was in a strong position to find work and re-establish herself in Fiji, notwithstanding that Cyclone Winston took place in February 2016. The applicant responded that she has a fear of returning from her first husband, noting she could work if she returned and that “Fiji is a wonderful place.” The Tribunal raised with the applicant that at the previous hearing she advised she previously stayed with her brother on return trips to Fiji and that this might suggest she could reside with him again if she returned to live in Fiji. The applicant responded that she hadn’t talked to her brother in a while and would not be sure he would want her to live with him.

6. The Tribunal raised with the applicant that during the last hearing she advised she was fearful of harm from her first [husband], as he was violent towards her and that this claim was first raised during that hearing following a significant delay since the time of her application for protection. The Tribunal also noted the applicant advised during the early portion of that hearing that all of her claims for protection were contained in her written protection visa application, in which she indicated she did not experience harm in Fiji, she did not think she will be harmed or mistreated if she returns to Fiji, that she thinks the authorities would protect her if she returned to Fiji, and that she confirmed this was correct information. The Tribunal drew to the applicant’s attention that the aforementioned matters might cause it to have difficulty accepting her claim regarding fear of being harmed by her first husband, inviting her comment. The applicant responded that she just has a fear, she is not sure what the circumstances would be in Fiji, it is not acceptable to remarry in Hindu culture and her first husband can take revenge upon her and that is what she fears.

7. The Tribunal raised with the applicant that during the previous hearing she provided at times vague and inconsistent evidence concerning her fear of harm from her first [husband]. Further, the Tribunal raised that in the previous hearing she variously advised their marriage ended around 2011, they separated in 2007, they were separated under the one roof in 2008, in 2009 they were separated under the one roof when she returned to Fiji, in 2010 when she returned to Fiji they were separated under one roof but she divided her time between his house and that of her mother and brother, that she did not experience harm after 2010 from [her first husband], and in February 2011 she returned to Fiji to stay with her mother and brother. Additionally, the applicant had advised she married her second husband [Mr A] in 2011 and confirmed that she lodged a Partner visa application with him [in] December 2011. The Tribunal raised with the applicant that the aforementioned matters might cause it to have difficulty accepting her claims regarding fear of [her first husband], inviting her comment. The applicant responded, “I just have fear, that’s all I can say.” She added she wasn’t living in Fiji permanently when she went back there, that she would like to live in Fiji, “there is nothing wrong with Fiji”, and she just fears from her first husband. When asked by the Tribunal why she made claims for protection concerning Cyclone Winston given this oral evidence, the applicant replied that she didn’t have a house to start again, that there was nothing wrong in Fiji and she only feared harm from her first husband. The applicant confirmed that she had no fear of the Fijian authorities. The Tribunal raised with the applicant that during the previous hearing she indicated she was not sure why she did not apply for a protection visa when she was in Australia in late 2008 and 2009, that ‘she didn’t think of the harm then’, and given the aforementioned matters it might have difficulty accepting her claims regarding [her first husband]. The Tribunal invited her comment and the applicant indicated her answer was the same as the previous question.

8. The Tribunal raised with the applicant that during the previous hearing she confirmed that she had travelled between Australia and Fiji on several occasions between 2008 and 2013 as indicated in the Departmental delegate’s decision, and that she indicated her second marriage took place in 2011. Further, according to the Departmental delegate’s decision, she departed Australia [in] July 2012 returning [in] July 2012 and in addition departed Australia [in] October 2013 and last entered Australia [in] November 2013. Additionally, the applicant advised she feared [her first husband] as he knew she was married in Australia, and that she last spoke to him a “long, long time ago.” The applicant did not apply for protection when she returned to Australia in 2012 and 2013, which is after she was married, instead waiting until after she withdrew her application for judicial review in March 2016 regarding her Partner visa application. The Tribunal drew to the applicant’s attention that the aforementioned matters might cause it to have difficulty accepting her claim regarding fear of being harmed by her first husband, inviting her comment. The applicant responded that she was travelling in and out of Fiji at the time and therefore was out of his mind. She fears living there permanently as things can change. When asked by the Tribunal, the applicant confirmed that [her first husband] had not contacted her in a ‘long, long time’ and also that he had not threatened her. The applicant added that she fears anything can happen and this is the only fear she has. When asked by the Tribunal if she was still relying upon her original claim regarding Cyclone Winston, in addition to that concerning her first husband, the applicant advised that she was still worried about how to start her life again, the economic situation, and she relied upon the same answers given in the previous hearing.

9. The Tribunal raised with the applicant that during the previous hearing she advised that because of her culture she did not complain about the problems she faced with [her first husband] and that her family told her to live with him and her daughters. She also advised she had not resided with [her first husband] since 2010, had not suffered any harm from him since 2010 and in 2011 stayed with her brother and mother in Fiji which was after she said she last resided with [her first husband]. Additionally, she advised in the previous hearing that she would not live with [her first husband] if she returned to Fiji. Further, at the second review hearing she earlier confirmed she was not in contact with, nor had been threatened by, [her first husband]. The Tribunal drew to the applicant’s attention that the aforementioned matters might cause it to have difficulty accepting her claim regarding fear of being harmed by her first husband, inviting her comment. The applicant responded, “I can’t say anything.”   

10. The Tribunal raised with the applicant that during the previous hearing she advised that in Hindu culture people look down on you if you are divorced, that her mother was worried about divorce in society, and that at the second review hearing she also mentioned her Hindu culture. Additionally, at the previous hearing she advised she had no problems in the relationship with her [daughters] and brother who remain living in Fiji. The Tribunal drew to the applicant’s attention that even if it accepted there is societal discrimination against divorced persons of Hindu culture, this did not appear to amount to serious or significant harm, inviting her comment. The applicant responded, “I can’t say anything.” When asked by the Tribunal if she could relocate to avoid harm if she returned to Fiji, the applicant responded “I can relocate but I just have a fear from my ex-husband. Fiji is a small country.”

11. The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT)[1] with the applicant, concerning Indo-Fijians and Hindus, which indicated these segments of society faced low levels of official and societal discrimination and this did not tend to support her claims based on her ethnicity or religion. The applicant responded that she didn’t have any harm on these bases. The Tribunal raised country information from DFAT[2] with the applicant, concerning State Protection, which indicated the security forces would not adversely target persons with a low political profile and were generally capable of providing protection to the general population, and this did not tend to support her claims of harm concerning her first [husband]. The applicant responded that in Fiji the police and Government are corrupt, with there not being the same laws as in Australia with regard to restraining orders. When asked by the Tribunal if she personally had any difficulties with the police, military or Government authorities in Fiji, the applicant replied that she had not. She added that if the police could protect her, why would she fear her first husband and ask for protection in Australia? When asked by the Tribunal why she did not raise the family violence aspect in her written claims for protection, the applicant replied that she wanted to talk about it at interview, noting there were no restraining orders or support for her in Fiji. When asked by the Tribunal, the applicant confirmed she had not experienced harm from the Fijian Government. 

    [1] Paragraphs 3.11, 3.17, 3.22, 3.54 & 3.58 - DFAT Country Report Fiji of 14 April 2015.

    [2] Paragraphs 5.4, 5.9, 5.15 & 5.23 - DFAT Country Report Fiji of 14 April 2015.

12. The Tribunal raised with the applicant that, whilst it had not made up its mind, it had the following concerns with her claims for protection. The Tribunal might have difficulty accepting the genuineness of her claims relating to her first [husband], as she did not raise them in her written application for protection and there was a significant delay in doing so; her application for protection indicated she did not experience harm in Fiji, she did not think she will be harmed or mistreated if she returned to Fiji and that she thinks the authorities would protect her if she returned to Fiji, confirming in the previous hearing this was correct information; her claims regarding harm from [her first husband] were vague and inconsistent; and she travelled between Fiji and Australia on seven occasions between 2008 and 2013 (as reflected in the Departmental delegate’s decision) with this travel occurring at times when she said she was still living with [her first husband] and also after she had separated from him and was remarried, and she did not apply for protection at any time prior to March 2016 and only following withdrawal of a judicial review application in respect of her unsuccessful Partner visa application. Further, she gave evidence that due to cultural reasons she did not complain about problems with [her first husband] and her family told her to live with him and her daughters, however she advised she has not resided with him since 2010, has not suffered any harm from him since 2010, and in 2011 she stayed with her brother and mother in Fiji which is after she said she last resided with [her first husband], also advising she would not live with [him] if she returned to Fiji and she had not had contact with him for a long time; and she indicated that in Hindu culture people look down on you if you are divorced and that her mother was worried about divorce in the society, yet she also advised she had no problems in the relationship with her [daughters] and brother who remain living in Fiji, and that this situation did not appear to amount to serious or significant harm.

13. Additionally, the Tribunal indicated that it might have difficulties accepting the genuineness of her claims relating to the aftermath of Cyclone Winston as her application for protection indicated she did not experience harm in Fiji, she did not think she will be harmed or mistreated if she returned to Fiji and that she thinks the authorities would protect her if she returned to Fiji; she confirmed in oral evidence that she was not in fear of the Fijian authorities; she did not raise in her written claims that she feared being persecuted in Fiji for reasons of race, religion, nationality, membership of a particular social group or politicial opinion and this tended to suggest she did not have a well founded fear of persecution and therefore did not satisfy the definition of refugee; the harm she said she will suffer in Fiji by way of the economic situation appears to apply to the whole Fijian population and appears not to be directed at her personally, therefore suggesting that she did not have a well founded fear of persecution and that there is not a real risk that she will suffer significant harm if she returned to Fiji on account of the economic situation; and the harm she raised relates to economic concerns and not matters of significant harm for the purposes of complementary protection. Further, she gave evidence that she will be able to obtain work in Fiji, she is educated and trained in [a specified industry], she speaks very good English, she has been able to find work and establish herself in a new country, and this tends to suggest she is in a strong position to find work and re-establish herself in Fiji even considering that Cyclone Winston took place in February 2016; she also has a brother living in Fiji with whom she has have previously stayed, and her skills and adaptiveness tend to suggest she could relocate within Fiji if required; she was able to travel frequently between Australia and Fiji between 2008 and 2013 using her own Fijian passport and travelling by legal channels which tends to suggest she is of no adverse interest to the Fijian authorities; and the country information does not tend to support her claims that she will suffer any harm in Fiji on account of the aftermath of Cyclone Winston or due to being a Hindu Indo-Fijian.

1. The Tribunal invited the applicant to comment upon its concerns regarding her claims in respect of her first husband and Cyclone Winston, to which she replied “no”. Prior to concluding the second review hearing, the Tribunal provided the applicant with the opportunity to provide any further information she wished regarding her claims. The applicant requested the Tribunal to consider what her life would be in Fiji and to think of her fear of her first husband. She added that she had no further information to provide to the Tribunal.

   Analysis  

2. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. During the review hearing, the Tribunal developed serious concerns with the credibility of the applicant’s claims for protection. With respect to her claims relating to her first [husband], the applicant provided a vague and inconsistent account of fearing domestic violence as highlighted above. Her demeanour was evasive during the provision of her evidence concerning this issue. There was a significant delay in raising this claim for protection and the applicant travelled on multiple occasions between Australia and Fiji during periods which she said she was suffering harm from her first husband, yet she did not claim protection. This significant delay, following her dogged pursuit of a Partner visa application which concluded following her withdrawal of judicial review proceedings, further undermines the credibility of the applicant’s claim in respect of her first husband. Additionally, the applicant’s indication in her written claim that she had not suffered harm in Fiji, as outlined above, also reinforces her lack of credibility. Accordingly, the Tribunal is not satisfied that the applicant has ever suffered any harm whatsoever from her first husband, nor is it satisfied that there is any plausible risk of her suffering any harm from him in the future. The Tribunal finds that the applicant was an untruthful witness concerning this matter and fabricated this aspect of her claims for protection.

3. For completeness, the Tribunal notes that the DFAT Country Report Fiji was updated on 27 September 2017, following the second review hearing. Some amendments have been made in this report, for example concerning the need for police improvement in matters of domestic violence.[3] However, the Tribunal does not accept the veracity of the applicant’s claim regarding her suffering domestic violence from her first husband and finds that this change to the DFAT country information does not strengthen her claim in any way. Further, the Tribunal notes that in her written claims, and in oral evidence, the applicant indicated she has not suffered any harm or had problems with the Government or security services in Fiji. With respect to the applicant’s reference in oral evidence to a claim for protection arising from her Indo-Fijian ethnicity and Hindu religion, the Tribunal notes that the updated DFAT country report, whilst making some minor textual changes, has not changed with respect to its assessment that Indo-Fijians who are Hindu face a low level of official and societal discrimination based upon their ethnicity (race/nationality) and religion.[4] The Tribunal does not accept the veracity of the applicant’s claim that she will face harm based upon being an Indo-Fijian Hindu divorcee given her stated good relationship with her family members remaining in Fiji (brother and daughters), her history of travel between Australia and Fiji where she resided at various times with her mother and brother (and even her first husband), the significant delay in raising this claim, and given her written claim for protection indicates she has not suffered harm as detailed above. Further, given the aforementioned reasons, the Tribunal does not accept that the applicant faces a real chance of serious or significant harm in Fiji on the basis of her Indo-Fijian ethnicity or Hindu religion.  

   [3] Paragraph 5.11 - DFAT Country Report Fiji of 14 April 2015.

   [4] Paragraphs 3.10 and 3.30 - DFAT Country Report Fiji of 14 April 2015.

4. Regarding the applicant’s claim for protection with respect to the aftermath of Cyclone Winston, the Tribunal does not accept that she has a well-founded fear of persecution, or that there is a real risk that she will suffer significant harm, for the following reasons. Her application for protection indicated she did not experience harm in Fiji, she did not think she will be harmed or mistreated if she returned to Fiji and that she thinks the authorities would protect her if she returned to Fiji; she confirmed in oral evidence that she was not in fear of the Fijian authorities; the harm she said she will suffer in Fiji by way of the economic situation appears to apply to the whole Fijian population and appears not to be directed at her personally; and the harm she raised relates to economic concerns and not matters reaching the threshold of serious or significant harm pursuant to s.5J(5) and s.36(2A) of the Act. Her travel history between Australia and Fiji, utilising her own passport, demonstrates she is of no adverse interest to the Fijian authorities. The country information referred to by the Departmental delegate is not suggestive of the Fijian authorities discriminating in the provision of assistance following Cyclone Winston, and there is no country information before the Tribunal indicating the applicant herself would suffer any discrimination in this regard.

5. Further, the Tribunal notes the applicant has claimed that if she returns to Fiji she has ‘nowhere to live’, ‘nothing to start with (including resources) and no money to take back with her’, and she has ‘nothing to go back to’. Following careful assessment, the Tribunal does not accept these claims given the credibility concerns highlighted earlier, she has previously stayed with her brother in Fiji (giving no indication to the Tribunal that his house has been damaged in any way when asked at the second review hearing if she could stay with him), and she has worked in Australia for some time in the [specified industry]. The Tribunal finds that the applicant has an excellent command of the English language, is educated with work experience in the [specified industry], has demonstrated versatility in supporting herself in Australia, by her own admission in oral evidence indicated she can obtain work in Fiji, and therefore is in a strong position to re-establish herself in Fiji, including being able to acquire employment and accommodation. For completeness, the Tribunal does not accept that the applicant’s claims surrounding her lack of means and housing options would amount to either serious harm in relation to the refugee criterion (none of the considerations in s.5J(5) of the Act being present in her circumstances, especially as there is no threat to her capacity to subsist given her characteristics previously outlined), or significant harm in relation to complementary protection (none of the considerations in s.36(2A) of the Act being present in her circumstances, particularly given her aforementioned characteristics). Following careful consideration, the Tribunal finds that there is not a real chance that the applicant will face serious or significant harm as a result of the aftermath of Cyclone Winston, or for any other reason (including economic, employment or accommodation concerns), if she returns to Fiji. Whilst the Tribunal understands that the preference of the applicant is to remain in Australia where the prevailing economic circumstances are more favourable than in Fiji, it does not accept that she satisfies either the refugee criterion, or that she is a person entitled to complementary protection, as a result of such circumstances.

   CONCLUSION

6. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

7. 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).

8. 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

9. The Tribunal affirms the decision not to grant the applicant a protection visa.

   K. Chapman
   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.

   …