1702867 (Refugee)

[2017] AATA 2553

1702867 (Refugee) [2017] AATA 2553 (2 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702867

COUNTRY OF REFERENCE:                  Fiji

MEMBER:David McCulloch

DATE:2 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 02 August 2017 at 3:51pm

CATCHWORDS
Refugee – Protection visa – Fiji – Federal Circuit Court remittal – Political opinion – Involvement with supporting Teimuma Kepa campaign – Association with Social Democratic Liberal Party (SODELPA) – Social group – Alleged involvement in a coup plot with Metuisela Mua – Credibility Issues

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, r 1.12, 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
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Fiji, applied for the visas [in] October 2014 and the delegate refused to grant the visas [in] January 2015.

3. The review was determined by the Tribunal in a decision dated 5 September 2016 (‘first Tribunal decision’) which affirmed the decision not to grant the applicants Protection visas. The relevant Tribunal hearing was held on 17 June 2016 (‘first Tribunal hearing’). Judicial review of that decision was sought by the Federal Circuit Court. [In] February 2017, by consent, the Court remitted the matter to the Tribunal to determine according to law. The remittal reason was that the Tribunal fell into error by failing to have regard to evidence in the manner stated in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317. This evidence is the media articles included in the email sent by the applicants’ representative to the Tribunal on 21 June 2016

4. The first named applicant (‘the applicant’) and the second named applicant appeared before the Tribunal on 13 July 2017 to give evidence and present arguments (‘second Tribunal hearing’). The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages, although the applicant mainly communicated in English.

5. The applicants were represented in relation to the review by their registered migration agent, who attended the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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, the applicant 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.

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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 a protection 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 the applicant 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’).

10. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.

11. The Tribunal is satisfied on the evidence that the second named applicant is the spouse of the applicant and the remaining applicants are dependent children of the applicant.

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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 DFAT Country Report – Fiji, 15 April 2015, a copy of which was provided to the applicants in the hearing.

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

    Background and claims

14. The decision of the delegate indicates the following in relation to the applicant. The applicant first arrived in Australia [in] November 2012 on a [temporary] visa. He departed [in] January 2013 and returned again [in] January 2014. He departed [in] March 2014 and returned on another [temporary] visa [in] July 2014. The application for the Protection visa was lodged [in] October 2014.

15. The application forms for the Protection visa indicate the following in relation to the applicant. The applicant was born [in date]. He belongs to the Fijian ethnic group. He is a Seventh Day Adventist. The applicant lists an address he lived at in [City 1] from January 2003 until July 2014. The applicant finished secondary school in [year]. He attended [a college] from [year] until [year]. The applicant attended [an institution] from [year] until [year]. He attended [a University] from [year] until [year]. The applicant has [qualifications].

16. The application forms indicate that the applicant was unemployed from 1982 until 1990. From 1991 until 2005 the applicant worked in the [Workplace 1] as [an occupation]. From 2006 until 2012 the applicant worked at [Workplace 2] as [another occupation]. From 2013 until July 2014 the applicant worked for the [Workplace 3] as [a senior role].

17. The applicant was married [in] November 2007. The applicant lists [brothers] who live in Fiji.  He lists [sisters], [living in both Australia and Fiji]. He lists [number of children and grandchild], all who live in Fiji.

18. The application forms indicate that the applicant left Fiji for fear of cruel and inhuman treatment and punishment because of his political affiliation to Social Democratic Liberal Party (SOPELPA). The applicant does not want his family to face the type of torture that had been experienced by friends and party supporters. The applicant fears injuries due to his vocal opinion on democracy which had haunted him for eight years from 2006 until 2014.

19. The applicant received an email [days] after arriving in Australia from a colleague informing him that his name was on a ‘watch list’. This was despite the applicant’s employer, [Workplace 3], retaining [months] of leave pay and [weeks’] pay. The applicant had known that the military regime would find a way to put the applicant on a watchlist.

20. If the applicant returns to Fiji there is sufficient evidence to indicate that the regime would hold the applicant in custody and would fabricate a story to facilitate a custodial sentence for no reason other than the applicant’s political affiliation which opposed the regime. The applicant indicates that the military will gang up with the police to harm the applicant.

21. The applicant provided the Tribunal, with respect to the initial review, an unsigned Statutory Declaration.  A signed copy was provided following the first Tribunal hearing.  The Declaration provides as follows (with a correction made by the applicant to the delegate added):

    (1)       I am afraid to return to Fiji because my life will be in danger if I return there.

    (2)       I left Fiji because I experienced serious harm and my life was put at risk.

    Reason for not attending DIBP interview [in] 01/2015

    (3)       When I applied for my protection visa I lived with my sister and I had given the address of my sister in the application forms but soon after that I moved to a new place which was temporary. I didn't know how long I will be living in that address. I thought my sister's place being permanent it is safer to receive mail through that address.

    (4)       I used to go there every [number of] weeks to inquire. Having not heard from the Immigration Department one day I was at work and thought that something must be wrong. I went straight to Immigration and they told me that a refusal letter was already sent and that it was the last day to apply to the Tribunal. I went straight to the tribunal.

    (5)       When I queried my sister she told me the letter had come and she had put it somewhere and that she forgot about it. I quite upset with that.

    List of Events and Incidents

    (6)       I list some of the events below:

    (i)        [Nov] 2013    Taken to [a] Police Station and interrogated and threatened

    (ii)        [Jan] 2014     Arrived in Australia

    (iii)       [March] 2014  Returned to Fiji

    (iv)       [May] 2014     Visa granted for Australia

    (v)        [July] 2014     [A location] post detention

    (vi)       [July] 2014     Returned to Australia

    [November] 2013 incident

    (7)       I was working at [Workplace 3].

    (8)       At [night] I was at home sleeping and my wife and the [children] were there at home.

    (9)       This is what I heard from my wife. There was a knock on the front door and she opened and saw one policeman at the door another one in a double cabin.

    (10)     The policemen at the entrance asked her, "Can we see [the first applicant]?". My wife said "Why do you want to see him because he is sleeping?” He said in a rude voice "You just call him".

    (11)     She came and shook me. I was sleepy and asked her "What's going on?” She said "Just wake up so I can tell you". I got up and she said "There are policemen looking for you". I came out of the house to the front of the house and I said to the Policeman "What do you want?". He said "Just come to the police station".

    (12)      Just at that time we noticed another policeman at the left side of the house and my wife went around and came back and she said there is another policeman at the back entrance.

    (13)     I said "Have you got a search warrant?". He said rudely "Just come to the police station". The way he said I got frightened and so I got inside the vehicle.

    (14)     My wife was crying loud asking "Why you are taking him without telling us anything, what has he done’’. My [child], got scared and was screaming.

    (15)     Inside the double cabin I was asked to sit in the middle [with] soldiers on either side and the other [including] the driver sat in front.

    (16)     They did not say anything on the way to the police station. They just looked at me with anger.

    (17)     At the [Police] Station they took me to a senior officer. I was inside the room with him while [a few] of them were guarding the door.

    (18)     He said "I am going to ask you about your involvement with the coup plotters". I said "Why me? I have nothing to do with that and I'm not a senior officer why ask me?". He said "We have information that you are one of those actively behind this?".

    (19)     This was a time when rumours were floating around in the military circles about another possible coup. The previous coup plotters were in jail at this time.

    (20)     I was questioned for [hours] during the time [some] of them hit [me]. Then another took me and put me against the wall and another person punched me and I slumped to the floor and one of them put his boot on my shoulder while I was on the floor. I was then locked up for one hour, then questioned and threatened again for half an hour and then locked up again for some time and then left on the road around [early morning] and asked to find my way home.

    Came to Australia [in] January 2014

    (21).     Because of what happened I came to Australia. I was thinking of staying in Australia because of my safety. But Honourable Teimumu Kepa asked me to come home and help her with her elections. Although my wife was opposed to me returning I returned to Fiji [in] March 2014. I expected that Sodelpa would win in the September 2014 elections so that I will be safe.

    (22)      However my wife was not so sure about Sodelpa's prospects. She urged me to apply for Australia and have the visa ready just in case Bainimarama win.

    (23)     I applied for visa for Australia yet again and was granted [in] May 2014. It was our intention to leave Fiji soon after the election if Sodelpa lost the election.

    (24)     I visited Madam Kepa's place many times and assisted her with her election planning.

    [July] 2014 Incident

    (25)     It was [a time in] July 2014. I was at work at [Workplace 3]. Around [morning] I received a call from a policewoman instructing me to immediately go and see another policewoman in [a location] occupied by police.

    (26)     I immediately went there and the police officer's name was [Ms A]. She said "You are here because you are connected to one of the coup plotters Metuisela Mua. You have been seen spending a lot time with him and been seen to be involved in long discussions". I said "He is a very close friend of mine and [we] are having both private and business dealings that has nothing do you with his whatever involvement he had. He had never spoken to me anything about it. You know such matters may be dangerous and sensitive matters I don't think he would ever speak to me anything about it if he has anything to do with it".

    (27)     She said you are lying. You have involvement with them for several years now in 2013 you were investigated and you were given the benefit of doubt but this time it I very clear you haven't learnt your lesson.

    (28)     There was a male policeman in the room as well and he came and tried to throttle me squeezing my neck. Then the Police Cell Officer [came] and threatened me to own up to my mischief.

    (29)     I was kept there for nearly [a number of] hours that is [from morning to evening].

    My Sodelpa/SDL connection

    (30)     My problems stem from my close connection to Metsela Mua who was one of the main conspirators in the aborted [coup]. Further cause of trouble was my close association to the current Leader of the Opposition the Honourable Teimumu Kepa. I belong to a clan committed to serving her.

    Failure to state the events in the Protection Visa application

    (31)     When I applied for protection visa I did not have any professional help. It was my sister who helped me but she didn't have much time for me either.

    (32)     She told me that she heard that information given to Immigration may become known to Fiji authorities since they might check with them if it is true. So she said not to put specific information about the incidents I was involved in.

    (33)     She said that when I go for interview I can tell them everything after confirming with them if they would keep things confidential.

22. Provided to the Tribunal with respect to the initial review is a statement by the applicant dated [in] June 2016, written in the third person.  It indicates that the applicant’s main case is that he was [an Occupation 1], although not of a high [position], who was connected to another [person], Metuisela Mua, who was connected to a conspiracy to stage a coup in Fiji. Mua [was] very close to the applicant and were frequently seen together. Added to this is the applicant’s close association with the current opposition leader, the Honourable Teimuma Kepa.  The two incidents referred to in the Statutory Declaration are mentioned.

23. The applicant indicates that he did not refer to these issues in his application for the Protection visa because he was given wrong advice about what to disclose by members of the Fijian community in Australia. The applicant was told by his sister not to disclose his personal circumstances because the Department may enquire from authorities in Fiji which would cause the applicant serious trouble if he returned. The applicant was advised to provide the details to the delegate once he was given assurance about confidentiality. The applicant did not get the letter of invitation for the interview with the delegate because the applicant’s sister misplaced the letter.

24. Further documents and media reports provided subsequent to the first Tribunal hearing were:

    ·Undated letter from applicant to [a government department] indicating his resignation effective [August] 2014 due to personal commitments.

    ·Letter to applicant dated [in] September 2014 from [a government official], accepting the applicant’s resignation and indicating that, in lieu of notice, money supposed to be paid to the government pursuant to his contract will be recovered.

25. The applicant had also provided to the Department, as part of the original application, a copy of an email dated [in] August 2014 from [Workplace 3] which states as follows:

    ‘[Applicant’s friend] said that ur on watchlist now because u are still holding onto a external hard drive which belonged to the Government of Fiji…..lol’.

26. A Statutory Declaration by the applicant dated [in] July 2017 was provided to the Tribunal in advance of the second hearing. This is referred to further below. Submissions dated the same date were provided by the applicant and his representative, relevant portions which are discussed further below.

    Independent information

    Background

27. The issues of concern raised by the applicant mainly occurred during the period of the military government of Commodore Josaia Voreqe (‘Frank’) Bainimarama following a coup in 2006.  An election was held in Fiji in September 2014, with Bainimarama’s Fiji First Party winning the election. The elections have been described as “credible”.[1] Fiji is now operating as a parliamentary democracy. DFAT Country Report Fiji, 14 April 2015, provides the following background to the political situation in Fiji over the past 15 years:

    In May 2000, a group of indigenous Fijians, led by former businessman George Speight, stormed the Parliament. They took Chaudhry and dozens of others hostage. During negotiations for their release, Commodore Josaia Voreqe (‘Frank’) Bainimarama, then Commander of the Republic of Fiji Military Forces (RFMF), assumed control of government. Bainimarama imposed Martial Law and briefly abrogated the constitution before restoring it and appointing Laisenia Qarase (an indigenous Fijian) as interim Prime Minister in July 2000. Elections were held in August 2001, at which time Qarase was elected Prime Minister. Qarase was re-elected in the 2006 general election.

    Following a political dispute between Bainimarama and Qarase, Bainimarama took power in a coup in December 2006 and established an interim government, dominated by the military. In April 2009, the Court of Appeal declared the 2006 coup and the subsequent interim government illegal. In response, the interim government declared all judicial appointments vacant and again abrogated the 1997 Constitution.

    The interim government initiated the process of drafting a new Constitution in July 2009, with the commencement of a Constitutional Commission headed up by internationally renowned constitutional expert, Professor Yash Ghai commencing work on a draft in July 2012. Following disagreements with the “Ghai Draft”, the interim Bainimarama Fijian Government drafted its own Constitution which was passed in September 2013. The interim government’s stated intent included establishing a non-discriminatory Constitution and a political system to give equal representation to all Fijian citizens.

    The Public Emergency Regulations which restricted freedom of association in Fiji following the abrogation of the constitution in April 2006 were removed on 7 January 2012 and were replaced almost immediately by the Public Order Amendment Decree which borrowed much of the restrictive language of the Public Emergency Regulations. Whilst the removal of the Public Emergency  Regulations was met with international support, the imposition of the Public Order Amendment Decree (POAD) was seen as simply a change in name only.

    Bainimarama resigned as Commander of the RFMF in 2014. His new political party, FijiFirst, won elections in September 2014 and holds a substantial majority in Parliament. Bainimarama is now Fiji’s Prime Minister.[2]

    Treatment of political opponents post-election

    [1] CX1B9ECAB6034: "Fiji reinstated to the Commonwealth following 'credible elections'", Australian Broadcasting Corporation (ABC) (News), 27 September 2014, DFAT Country Report Fiji, 14 April 2015, paras 2.6-2.10

1. An assessment as at April 2015 as to the treatment of those expressing political opposition in Fiji, is contained in DFAT Country Report – Fiji, 14 April 2015.  Relevant extracts follow, in which passages of particular relevance underlined:

   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.

   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 onward, 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. Police presence was, however, common at known political events.

   Other decrees which have been used in practice to limit the freedom of expression, assembly and association include the Essential National Industries Decree 2011, Media Industry Development Decree 2010, Political Parties Decree 2013 and the Electoral Decree 2014. Each of these decrees is covered in more detail at relevant subsections, below.

   In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example, to discuss the outcomes of the  2014 election. At times such gatherings include robust political criticism of FijiFirst and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.

   However, some uncertainty remains about the permissible limits on public commentary. 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 those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy. Examples and further information on the risks to specific groups are given below.[3]

   […]

   The 2013 Constitution guarantees freedom of operation for political parties. 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.

   In practice, a range of opposition political parties were able to contest the 2014 elections. Most representatives of opposition political parties have told DFAT that they were routinely monitored and followed by police and military during the campaign. They reported being asked for personal contact details, or to report their whereabouts. Monitoring was in some cases relatively open and cordial (for example, a polite telephone call enquiring after the subject’s movements and plans), sometimes merely annoying (for example, a vehicle parked outside the home), and sometimes intimidating (for example, overt police presence at a political gathering). Allegations were also made that the government used a range of government agencies to harass and impede opposition political parties, such as tax audits, withholding re-registration as a legal practitioner, or investigations by the Fiji Independent Commission Against Corruption (FICAC). All these claims appear credible.

   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 who are found guilty of a crime for which the maximum sentence is more than 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. These assessments are credible. See more information on the judicial system below at ‘State Protection’.

   Overall, DFAT assesses that senior members of opposition political parties (i.e., 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, including through the judicial system.[4]

   Subsequent report

   [3] DFAT Country Report – Fiji, 14 April 2015, paras 3.70 – 3.74

   [4] DFAT Country Report – Fiji, 14 April 2015, paras 3.81-3.84

2. The Country of Origin information Section of the Department of Immigration and Border Protection provided an update of the risk of harm to those in opposition to the Bainimarama government in Fiji since the DFAT report of April 2015. The following response dated 21 October 2015 was received:

   A search of sources since the release of DFAT’s Fiji paper in April 2015[5] located a limited number of reports that referred to the treatment of opposition members by the Bainimarama government. 

   In August 2015, the Australian Broadcasting Corporation reported that 65 people in Fiji had been arrested and charged with sedition and inciting political violence during the month of August. Some of the arrested had been charged with ‘trying to form a separate Christian state while others are alleged to have used firearms and been involved in military-style training’. Defence lawyer Aman Ravindra-Singh claimed that he had not yet received any evidence from prosecutors and police. Commenting on the case, Mr Ravindra-Singh stated that:

   the police and prosecution had created a climate of fear and insecurity over the people and citizens of Fiji, adding that the local media had been censored with regards to the case.[6]

   In August 2015, Mr Bainimarama was reported to have delivered a speech in which he warned of ‘severe punishment and many years in jail’ for anyone attempting to form a breakaway state or overthrow the government. Mr Bainimarama claimed that ‘high profile’ figures in Australia were plotting to bring down his government and that these figures would be ‘tracked down and brought to justice’. Mr Bainimarama was also reported to have criticised the opposition party SODELPA for not supporting his condemnation of those he claimed were threatening the integrity of Fiji. The opposition party SODELPA responded to Mr Bainaimarama’s criticism by claiming that his ‘threats over sedition are becoming aggressive and similar in tone to his behaviour before the 2006 coup’.[7] A separate media report on the same speech delivered by Mr Bainimarama in August 2015 claimed that he had also called on Fijians to report anyone to the police who was involved in plotting against the government.[8] 

   Harm by military and police

   [5] Department of Foreign Affairs & Trade 2015, Fiji: Country Report, 14 April <CISEC96CF1559>

   [6] ‘Fiji defence lawyer slams lack of evidence against clients charged with sedition; military deployed in investigation’ 2015, Australian Broadcasting Corporation, 20 August < Accessed 19 October 2015 <CXBD6A0DE13020>

   [7]  ‘Bainimarama warns of severe punishment for sedition’ 2015, Radio New Zealand International, 31 August < Accessed 19 October 2015 <CXBD6A0DE14713>

   [8] ‘FIJI: PM warns against 'plotters' and opposition cries 'hypocrisy’ 2015, Pacific Media Centre, 31 August < Accessed 19 October 2015 <CXBD6A0DE14716>

3. DFAT Country Report – Fiji, 14 April 2015 provides:

   The 2013 Constitution provides for the right to freedom from cruel, inhumane, degrading, or disproportionately severe treatment or punishment. The Crimes Decree 2009 establishes a specific crime of ‘Crime Against Humanity – other inhumane act’, punishable by up to 25 years’ imprisonment.

   In practice, credible allegations of violent treatment of prisoners by the military have occurred in recent years. For example, in March 2013 a Youtube video emerged of a prisoner in handcuffs being assaulted by security personnel. The assailants were identifiable and have been dismissed from the police, however no criminal charges had been laid at the time of writing of this report. The interim Prime Minister stated at the time that he would “stand by” the security personnel involved. A similar event occurred in 2012, involving the alleged severe beating of five prison escapees. The frequency of such incidents has diminished in recent years.

   Allegations of police assault are not common, but have occurred. For example, in 2014 police allegedly assaulted Vilikesa Soko, a suspect in an armed robbery, between the point of his arrest and arrival at the police station. Soko died afterwards, likely as a result of medical complications brought on by the beating. Another suspect, Eroni Baleinukulala, also allegedly sustained serious injuries during his detention. The police force responded appropriately: as of November 2014, four officers had been suspended, and the Commissioner of Police was supporting a full investigation. In February 2015, the Director of Public Prosecutions, Christopher Pryde, confirmed that eight police officers and one RFMF officer would be charged with manslaughter in relation to Soko’s death, and with assault occasioning actual bodily harm to Senijili Boila. The DPP also charged the men with an alternative count of rape in relation to Vilikesa Soko. The government has publicly supported the decision to investigate the incident.

   Other allegations have been made of military brutality. For example, in 2011 military officers allegedly broke three fingers on the hand of a 12 year old boy, as punishment for graffiti.

   DFAT has received a range of assessments of prison conditions. In general, prison conditions are assessed to be adequate, and to include sufficient food, water, exercise and reasonable standards of accommodation.

   Overall, DFAT assesses that the likelihood of any individual being subject to cruel, inhuman, or degrading treatment or punishment is low. Someone who is seen to have embarrassed the government or security services would have a higher risk profile.[9]

   Metuisela Mua and reports of coup plot in 2012 and 2013

   [9] DFAT Country Report – Fiji, 14 April 2015. Para 4.7-4.12

4. The Tribunal makes reference to the following independent information contained in the first Tribunal decision concerning Metuisela Mua and reports of coup plot in 2012 and 2013:

   The Tribunal ascertained that Metuisela Mua is a former Fijian military officer and at one point a politician. According to sources[10]:

   [10] See, for example, and , accessed 1 August 2016.

   “He was a leading participant in the civilian coup, led by George Speight, which overthrew Chaudhry in 2000. Mua was described during the coup as "one of George Speight's inner sanctum". He subsequently explained that his aim had been to ensure that the Constitution was amended "to guarantee the supremacy of indigenous rights".

   Following the failed coup, Mua was "interrogated and beaten [...] by loyalist soldiers and relieved of his job. He then spent five months in prison", having been "convicted of illegal assembly and consorting with people carrying firearms in parliament". He had initially been sentenced to two and a half years in gaol.

   During the 2001 general election, in which he stood as a candidate for George Speight's Conservative Alliance in the North East Fijian Urban Communal constituency, he stated publicly that his party would not work with an Indo-Fijian prime minister.  He was not elected.

   As of 2005, he was assistant general secretary of the Conservative Alliance. The party later merged into the Soqosoqo Duavata ni Lewenivanua.

   In 2007, he was arrested on suspicion of implication in an alleged plot to assassinate interim Prime Minister Voreqe Bainimarama.  In March 2010, along with seven co-defendants, he was founded guilty "beyond reasonable doubt" by the five assessors of the High Court, a verdict upheld by Justice Paul Madigan.  Mua was sentenced to three years and six months in prison”.

   While the reports located indicate that Metuisela Mua was sentenced to three and a half years imprisonment in March 2010 for his role in the 2007 to assassinate interim Prime Minister Voreqe (Frank) Bainimarama, no reports have been located which specify the exact duration Metuisela Mua’s imprisonment or when he was released[11].  Further, no reports were identified indicating Mua was politically active subsequent to his release.

   The Tribunal also explored whether there were any credible reports or rumours of a possible coup against the Prime Minister Bainimarama in 2012 and 2013.  The Tribunal was unable to locate any reports of a potential coup against the Prime Minister in Fiji, although:

   “Reports have been located which refer to raids conducted by the New Zealand Security Intelligence Service (SIS) and police in Auckland in July 2012 in relation to an alleged plot to assassinate then interim Prime Minister Voreqe (Frank) Bainimarama^.[12]

   A report from Stuff.co.nz, dated 18 July 2012, stated that the SIS and police had ‘raided several Auckland properties in connection with an alleged plot to assassinate Fiji’s leader Voreqe Bainimarama.’ The properties raided included one belonging to ‘[a] former Fiji cabinet minister, Rajesh Singh’, while ‘[s]everal other Fiji nationals’ were the subjects of these raids. Singh claimed that ‘the security officials told him that they had “credible evidence” that the assassination was planned in Auckland a fortnight ago during a visit by Fiji Army Colonel Tevita Uluilakeba Mara.’ According to Stuff.co.nz, the New Zealand security officials also stated that ‘they had “credible evidence” that Mara and another New Zealander were planning to assassinate Bainimarama and his attorney general Aiyaz Sayed Khaiyum’ [13]. A report from ABC Radio Australia, dated 19 July 2012, reported that Mara had ‘denied any involvement’ in the plot[14]. Radio New Zealand International reported on 19 July 2012 that Mara had said that ‘the accusations are ludicrous, and completely untrue’[15]  Stuff.co.nz reported that ‘Singh and others visited were members of a small Auckland based group, Coalition for Democracy in Fiji which is called for the restoration of democracy’[16] A Fiji Sun report, dated 19 July 2012, also stated that ‘Mr Singh and others visited were members of a small Auckland based group, Coalition for Democracy in Fiji”[17].

   Reports provided by applicant

   [11] Fiji: CI160617175924765 – Metuisela Mua – 2012 Plot Against Bainimarama

   [12] Field, M 2012, ‘Raids over alleged Fiji assassination plot’, Stuff.co.nz, 18 July < Accessed 25 July 2012 <CX291804>; ‘Bainimarama ‘not surprised’ by assassination plot’ 2012, ABC Radio Australia, 19 July < Accessed 20 July 2012 <CX291416>; ‘Fiji's Bainimarama not surprised by assassination plot against him’ 2012, Radio New Zealand International, 19 July < Accessed 21 June 2016 <CX0D38E8E20775>; Field, M 2012, ‘Raids over alleged Fiji assassination plot’, Stuff.co.nz, 18 July < Accessed 25 July 2012 <CX291804>; Pratibha, J 2012, ‘Government Unaware Of Any Plot To Assassinate PM’, Fiji Sun, 19 July < Accessed 21 June 2016 <CX0D38E8E20779>

   [13] Field, M 2012, ‘Raids over alleged Fiji assassination plot’, Stuff.co.nz, 18 July < Accessed 25 July 2012 <CX291804>

   [14] ‘Bainimarama ‘not surprised’ by assassination plot’ 2012, ABC Radio Australia, 19 July < Accessed 20 July 2012 <CX291416>

   [15] ‘Fiji's Bainimarama not surprised by assassination plot against him’ 2012, Radio New Zealand International, 19 July < Accessed 21 June 2016 <CX0D38E8E20775>

   [16] Field, M 2012, ‘Raids over alleged Fiji assassination plot’, Stuff.co.nz, 18 July < Accessed 25 July 2012 <CX291804>

   [17] Pratibha, J 2012, ‘Government Unaware Of Any Plot To Assassinate PM’, Fiji Sun, 19 July < Accessed 21 June 2016 <CX0D38E8E20779>

5. The applicant has variously provided to the Tribunal the following reports:

   ·Amnesty report dated 3 June 2016 referring to suspension of indigenous MP underlying government stranglehold on freedom of expression; The Fiji Times Online report dated 4 October 2014 concerning allegations that a retired schoolteacher was arrested and assaulted by police/military; Radio New Zealand report dated 12 November 2015 quoting former New Zealand Minister of Foreign Affairs indicating that the resignation of the Fijian Police Commissioner was proof that some Fiji institutions were above the law; ABC News report dated 11 November 2015 quoting former New Zealand Foreign Minister urging Australia and New Zealand to voice concern over the resignation of Fiji’s Police Commissioner; Radio New Zealand report dated 4 November 2015 in relation to ending Fiji’s culture of torture and brutality by police and military personnel; Amnesty report dated 4 December 2016 concerning an ingrained culture of torture among security forces in Fiji, including as acknowledged by the Prime Minister; The Fiji Times Online report dated 27 June 2017 concerning a SODELPA youth wing leader being detained and questioned by police in relation to breaching public order based on holding placards; Internet report from SODELPA Fiji dated 4  May 2017 in relation to Youth President calling on government to stop using the National Budget Consultations as an electioneering platform; Fiji Sun report dated 26 June 2017 concerning SODELPA youth leader being the questioned by police; The Fiji Times Online report dated 3 January 2017 concerning allegations of two men being beaten by police in relation to claims relating to a stolen vehicle; and, Internet report Radio New Zealand News dated 18 February 2017 concerning the death of a teenager in police custody with allegations that he was beaten by police.

   Hearings, credibility, findings and assessment

1. In considering overall the credibility of the applicant the Tribunal is cognizant 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.

2. In the first Tribunal hearing the applicant indicated that the remaining applicants seek protection on the basis of being dependents rather than making claims on their own behalfs.

3. The Tribunal is satisfied that the applicant is the citizen of Fiji and accordingly his claims will be assessed against Fiji.

4. The Tribunal has the following credibility issues with the applicant’s claims.

5. Firstly, in the original application for the Protection visa the applicant made no claims that he had been specifically mistreated by authorities and made no mention of the two incidents [in] November 2013 and [in] July 2014 in which the applicant subsequently claimed that he was detained, interrogated and physically harmed by the police.

6. It has been submitted by the applicant that he filled in the application form based on the advice of his sister who had told him not to disclose his personal circumstances because the Department could enquire from authorities in Fiji which could create difficulties for the applicant if he had to return. The applicant was advised only to provide details to the delegate once assurance of confidentiality had been provided.

7. The Tribunal can accept concerns by applicants for Protection visas in revealing full details of harm in original applications on the basis of confidentiality concerns. However, the Tribunal has some difficulty accepting that this is the basis for the failure by the applicant to include key claims in the application. The application form indicates that the applicant has a fear of harm due to his vocal opinion on democracy which had haunted him over the preceding eight years. He indicates that there is evidence that the regime will use to hold him in custody. The applicant indicates that he is on a watchlist.

8. The Tribunal considers that, if the applicant thought that information in the application form might be conveyed to the Fijian authorities, then he might well have been concerned as to the information that he did provide. The Tribunal considers that the applicant would be concerned that his application for the Protection visa itself could be disclosed to Fijian authorities. The fact of the applicant providing information that he was a vocal opponent of the government which haunted him, that he was on a watchlist, and that he feared future harm from the Fijian authorities, together with the fact that he had applied for a Protection visa, could increase and exacerbate the targeting of the applicant by authorities.

9. The Tribunal does acknowledge that there are more specific events described in the subsequent Statutory Declaration which could compound the risk, particularly claims of being physically harmed by police. However, the Tribunal considers that a significant risk could have been established in the applicant’s mind by the contents of the original application itself. That undermines the claim that different and expanded claims were made in the Statutory Declaration, and not in the original application, because of privacy concerns.

10. In response to this issue in the second Tribunal hearing the applicant indicated that he just acted on the advice of his sister which he felt compelled to respect. In the written submission provided prior to the second hearing, it was indicated that in Fijian culture people trust each other and listen to relatives. The applicant’s representative submitted that there would have been a much greater risk to the applicant in disclosing the specific interrogations and harm by authorities. The Tribunal accepts that there would have been a greater risk in relation to revealing the interrogations and harm by authorities. The Tribunal makes some allowances in relation to claims that he acted on the advice of others. Nevertheless, the Tribunal has some concerns about the failure to make specific later claims in the original application.

11. It is noted that the Tribunal (differently constituted) which determined the initial review accepted the applicant’s explanation for the different claims being made in the original application form.

12. As indicated, the reconstituted Tribunal does have some concerns in relation to the failure by the applicant to make later specific claims in the initial application. However, this is only a matter of limited adverse inference to the Tribunal, but is considered cumulatively together with other matters.

13. Secondly, and of more concern, the claim in the original application form that the applicant was vocal in his opinion on democracy, which had haunted him for over 8 years from 2006 to 2014 was not backed up by other evidence from the applicant. In the first Tribunal hearing, the applicant indicated that he did not speak out publicly against the regime. The applicant indicated that the limit of his adverse comments about the regime was in work meetings, and he was counselled not to speak out in this way.

14. The applicant provided no other evidence, including in the first Tribunal hearing, of any problems due to him being outspoken against the regime prior to the incident with authorities in November 2013.

15. In the second Tribunal hearing the Tribunal further explored with the applicant how he was vocal in his opinion on democracy and how this ‘haunted’ him for eight years. The applicant indicated that this would occur only in work meetings. The Tribunal asked the applicant if it occurred in his job at [Workplace 2] from 2006 until 2012. The applicant said that it did. The Tribunal sought to explore with the applicant how this outspokenness ‘haunted’ him which seemed to imply difficulty from authorities. The applicant did not give a readily understandable answer. He indicated that he had left the job at [Workplace 2] of his own accord to take his job at the [Workplace 3].

16. The Tribunal does not consider the applicant has demonstrated that he was a vocal critic of the regime or that this ‘haunted’ him. The Tribunal has significant scepticism that the applicant would have been a critic of the regime at work, particularly given that he was working for government related entities. The Tribunal finds it unlikely that the applicant would have maintained roles for a significant period and left employment of government connected jobs on two occasions of his own volition if he was significantly critical of the regime at work, given the extent to which the regime controlled the operations of government and did not tolerate criticism. The applicant has not demonstrated to the Tribunal that any criticism of the regime from 2006, which the Tribunal doubts, ‘haunted’ him. The applicant has referred to no other difficulties from authorities from 2006 up until the incidents from November 2013.

17. The Tribunal does not consider that the applicant has demonstrated that he was a vocal critic of the regime from 2006 or  was ‘haunted’ by the regime. Further, these are not claims that are repeated or expanded upon in the more detailed Statutory Declaration subsequently provided, which undermines the truth of those earlier claims.

18. Thirdly, the applicant’s evidence in relation to him being on a watchlist, and the reason that he was on the watchlist was unsatisfactory. The original application form indicates that the applicant was informed that he was on a watchlist by his former employer [a number of] days after arriving in Australia. That email is referred to above. As noted, it ends with ‘lol’. As indicated to the applicant in the first Tribunal hearing this generally is a reference to ‘laugh out loud’.

19. The Tribunal put to the applicant in the second Tribunal hearing that this suggested that the comment was a joke. Whilst the Tribunal acknowledges that this expression can also mean ‘lots of love’ the Tribunal does not think it likely that this acronym would be utilised by a work colleague.

20. In the first Tribunal hearing the applicant asserted that the reason that he was on a watchlist was because of the contents of a hard drive he had taken from his employer. He said that this contained information about [the work[ that he was in charge of for his job that were to be [completed] including details of contractors and contracts that were to be awarded. The applicant indicated that he took the hard drive because he thought it might help him obtain employment in Australia. In the first Tribunal hearing the applicant was asked why the taking of such information would cause him to be on a watchlist. The applicant indicated that there was information about lucrative contracts and he indicated that minor issues could cause a person to be on a watchlist.

21. The Tribunal, in the first Tribunal hearing, asked the applicant to provide a copy of the hard drive to the Tribunal for inspection following the hearing. The hard drive was duly provided and the Tribunal contacted the applicant to seek information about the particular documents that were alleged to have caused the applicant to be on the watchlist, mindful of confidentiality issues given information about third parties in the various documents on the drive. In a subsequent email the applicant’s representative indicated to the Tribunal that the applicant indicated that the hard drive was not relevant to his case.

22. The applicant was clear in the first Tribunal hearing that he was on a watchlist because of the contents of the hard drive that he had taken. The applicant later retracting this claim means that the applicant has withdrawn a claim that he was on a watchlist for this reason. The retraction of that substantial and concrete claim by the applicant is undermining of his overall credibility. 

23. When these concerns were put to the applicant in the second Tribunal hearing he indicated that he would like his representative to respond. The Tribunal indicated that it would initially like the applicant to respond. The applicant did not provide a meaningful response. The applicant’s representative said that he had decided that it was in the applicant’s best interests to withdraw this claim because it was becoming a side issue and a distraction. He further indicated that a claim on this basis would not be for a Convention reason. The Tribunal noted that the claim on this basis could well fit the complementary protection criterion and noted that the representative was an experienced migration agent would know this. The representative acknowledged this. The representative indicated that he was now seeking to reinstate a claim on this basis, however at the end of the hearing the representative indicated that it had been retracted as a distracting issue.

24. It appears that the decision to retract this as an issue was largely made by the representative. The applicant was confused and unable to articulate whether he was still claiming that he was on a watchlist as a result of taking a hard drive from his work.

25. The Tribunal finds the evidence on this issue unsatisfactory. The applicant was clear in the first Tribunal hearing that he was maintaining that he was on a watchlist due to taking a hard drive from work. The confusion and vacillation by both the applicant and the representative as to whether this is a serious claim undermines the truth of the applicant’s claim in the first Tribunal hearing and in written claims.

26. The Tribunal is of the view that the email from the applicant’s former employer making reference to him being on a watchlist is a joke in light of the ‘lol’ reference.  The Tribunal considers that the applicant has untruthfully sought to construct a claim that he is on a watchlist based on this light-hearted email.

27. Fourthly, there is an inconsistency in evidence that the rationale for the applicant’s visit to Australia in January 2014 was as a result of the applicant being interrogated and harmed by police [in] November 2013. In the first Tribunal hearing, the applicant indicated that this was the reason that he decided to come to Australia, where he intended to stay until he felt compelled to return to assist in the election campaign.

28. However, as pointed out to the applicant in the first Tribunal hearing, the applicant had applied for the visa on which he entered Australia in October 2013, before the incident. In response, the applicant indicated that he did this because former colleagues were indicating that it was time to leave the country. The applicant said that he cannot quite remember, but he thinks that these comments were made in October 2013. He said that at this time there were rumours that [certain people] were going to be investigated.

29. In relation to the reference to [the occupation], the Tribunal notes that the applicant clarified in the first Tribunal hearing that he had been [in an occupation] from 1983 until 1996. Documentary evidence of this was provided to the Tribunal. This is contrary to the application form in which the applicant indicates that he was unemployed for this period.

30. In the first Tribunal hearing the applicant was asked how being [in an occupation] [many] years previously would affect him in 2013. The applicant indicated that all soldiers were being taken to task.

31. The Tribunal considered that the applicant has been inconsistent in his evidence as to the catalyst for him coming to Australia in January 2014. The applicant was initially quite clear that it was the incident [in] November 2013.

32. It was difficult getting a response from the applicant in the second Tribunal hearing to this inconsistency. The applicant had difficulty understanding the point despite the Tribunal repeating it several times. The Tribunal gave the applicant the opportunity to consult with his representative in the break and provide subsequent comments. After the break, the representative indicated that he had no comments on this issue as the evidence spoke for itself.

33. The Tribunal is of the view that the claim that the applicant, in fact, applied for the visa prior to the November 2013 incident because there had been a general warning of potential harm for [people of certain occupations] was a constructed claim to explain the inconsistency.

34. The Tribunal also considers that it lacks plausibility that a person being [in an occupation], [many] years previously, would have been targeted, on this basis alone, by the regime in 2013, such as to result in the applicant deciding that he needed to flee to Australia for his safety.

35. Fifthly, the applicant’s evidence that he felt compelled to return to Fiji in March 2014 to assist with the election campaign, notwithstanding that he had come to Australia in January 2014 to escape potential harm, as unconvincing. The applicant had indicated that he felt compelled to return to assist the Opposition Leader, the Honourable Teimuma Kepa, with the election campaign.

36. Given that the applicant claimed to have already been targeted and physically harmed by the regime, and fled to Australia on that basis, the applicant would have exacerbated the risk to him in returning and assisting the opposition in the election campaign.

37. In relation to this issue in the second Tribunal hearing, the applicant maintained that he felt compelled to return to assist the Opposition Leader in the election campaign.

38. The Tribunal has difficulty accepting that, if the applicant faced a real chance of serious or significant harm on return to Fiji, he would have returned, even acknowledging a desire to assist in the opposition campaign.

39. The fact of the applicant returning to Fiji is undermining of claims that he was targeted by the regime or that he faced or feared a real chance of serious or significant harm from the regime.

40. Sixthly, whilst the applicant has claimed that he was targeted by the regime because he was perceived to have been involved with Metuisela Mua in a coup plot, there is no evidence that Mua himself was the subject of any allegation or charges of involvement in a coup in the relevant period.

41. As the independent information in this decision concerning Mua indicates he was a high-profile, known individual, of adverse interest to the military regime. In March 2010 he was sentenced to three and a half years prison for his role in an assassination attempt of the interim Prime Minister, Frank Bainimarama.  If there had been a coup plot in 2013 orchestrated by Mua, in which the applicant was implicated, the Tribunal is inclined to consider that Mua himself would have been subject to adverse attention by authorities. Given that Mua was a high-profile individual, the subject of previous media reports, the Tribunal considers that, if Mua had been involved in a plot in 2013 that became known to the government, there would be independent reports of this.

42. The applicant has indicated that everything was happening out of public sight which is why there are no media reports of coup activity in 2013.

43. In a Statutory Declaration of the applicant dated [in] July 2017, provided at the second Tribunal hearing, he indicates that a person he knows in Fiji, who has friends in the army, is also a friend of Mua.  The applicant indicates that this person was told by Mua to tell the applicant not to return to Fiji as Mua had not been allowed to leave the country and that he is constantly being monitored and followed, and fears for his life.

44. As indicated to the applicant in the hearing, that suggests that Mua is not in custody in Fiji and going about his business. The applicant’s representative submitted that Mua is a threat to the Prime Minister and that his life is in danger, and the fact that the applicant is linked to Mua creates a difficulty for the applicant.

45. The Tribunal consider that if Fijian authorities were aware of the coup plot from late 2013 by Mua, as the applicant claims, that there would be reports of this, including reports of alleged involvement by Mua. The Tribunal also considers that Mua himself would have been subject to, at the very least, interrogation, and most probably being charged with sedition, and there would be reports or other evidence of this.

46. The fact that there is no independent information from late 2013 of Mua being involved in a coup plot or that he has been interrogated, harmed or charged by authorities is undermining of claims that Mua has been seriously suspected of being involved in a coup.  This is undermining of the applicant’s claims of a risk of harm to him by association with Mua.

47. Seventhly, there are inconsistencies in the account of the events of [July] 2014. The applicant’s Statutory Declaration indicates that the applicant was questioned in one room by an officer called [Ms A].  The applicant refers to another male officer being in the room who tried to throttle the applicant by squeezing his neck. Then, the police officer [of another name], came and threatened the applicant to own up. In contrast, in the first Tribunal hearing, the applicant refers to initial questioning, and then indicates that he was taken to a cell and fell on the ground and was kicked. He indicated that it was dark and he could not identify the individual police officers involved.

48. When asked to recount, again, details of this event in the second Tribunal hearing, the applicant indicated that he was not physically harmed in the original room where he was questioned by [Ms A].  He indicated that [officers], who were standing outside of the room, took him to a dark cell where they beat him.

49. The Tribunal noted to the applicant that there was an inconsistency in evidence, in that the applicant had, in his written claims, made no mention of been taken to a cell and indicated that the extent of physical harm was squeezing of his neck. This is in contrast to subsequent claims that the applicant was only physically harmed when taken to a cell and that harm included being beaten and kicked. In response to this inconsistency the applicant only noted that he was taken to a cell.

1. The Tribunal notes that there is an additional inconsistency. In the first Tribunal hearing the applicant indicated that he could not identify the officers in the cell who beat him because it was dark. However, in the second Tribunal hearing the applicant indicated that the officers who beat him had taken him from outside the room that he was originally questioned in which means that he would have been in a position to identify those officers.

2. The Tribunal acknowledges that these inconsistencies are on matters of detail and there is the potential for confusion and inconsistency in recounting the precise detail of events, particularly traumatic events. Nevertheless, the differences in detail are not insignificant and relate to more than just one detail. The Tribunal draws some limited adverse weight as a result of the inconsistencies, considered cumulatively with other more significant credibility concerns.

3. Eighthly, the applicant’s account of authorities having a suspicion of his involvement in the coup yet detaining him on multiple occasions, and releasing him after a short period, lacked credibility to the Tribunal. If authorities seriously suspected the applicant to have been involved in a coup it considers that it would have put specific evidence to him, such as surveillance of him in the company of others involved, phone taps and the like.

4. The Tribunal does not see the point of the applicant being detained on the second occasion as claimed. There is no suggestion that the authorities had any more evidence of the applicant’s involvement than that indicated in the first interrogation, namely being seen in the company of Mua.  If authorities had serious concerns about the applicant being involved in a coup, it does not think he would be questioned for a few hours each seven months apart and simply released.  The sequence and details of the applicant’s account of being detained, interrogated for the reasons claimed did not ring true to the Tribunal.

5. The applicant’s representative submitted that the interest by authorities arises due to the connection between the applicant and Mua, which may not seriously involve authorities believing that the applicant is involved in a coup. The connection itself may create a risk of harm to the applicant.

6. The Tribunal acknowledges that authorities in Fiji can act in a heavy handed way and may not always act rationally. The Tribunal acknowledges the sensitivity of the past regime and the current government to sedition. This issue is not given significant adverse weight but is considered cumulatively together with other matters.

7. Ninthly, the applicant had no difficulties leaving Fiji for reasons of his alleged involvement in a coup plot in either January 2014 or July 2014 and/or due to his connection to Mua. In the first Tribunal hearing the applicant did refer to being stopped and questioned when leaving in July 2014, but indicated that he was told that he had been picked randomly, and after questioning about his previous visit to Australia, he was allowed to leave.

8. As the applicant himself indicated in the first Tribunal hearing, a person would be placed on a watchlist on even a minor pretext. The Tribunal is inclined to think that if the applicant was under suspicion of being involved in a coup, or of concern due to links to Mua, than it likely he would have been placed on a watchlist. The fact that the applicant was able to leave the country without substantive difficulty in both January and July 2014 is undermining of claims that the applicant was suspected of being involved in a coup and/or of significant concern due to his connection with Mua.

9. In response to this issue in the second Tribunal hearing, the applicant reiterated his comment that minor issues can cause a person to be on a watchlist. The applicant did not otherwise indicate why, then, a connection by the applicant with a suspected coup plotter – which might be considered a significant adverse issue – would not cause the applicant to be on a watchlist.

10. The Tribunal does not consider the fact of the applicant being able to leave Fiji in both January 2014 and July 2014 without significant difficulty is consistent with the applicant being of adverse interest to authorities as a result of being connected with a person involved in a potential coup.

11. The Tribunal cumulatively considers these nine credibility concerns. In doing so, the Tribunal notes that the applicant and the second named applicant were broadly consistent in the first Tribunal hearing in providing details of their respective accounts as to the incidents [in] November 2013 and [in] July 2014.

12. Notwithstanding this consistency in evidence, the Tribunal is not satisfied that the applicant has been truthful in relation to his substantive claims. The cumulative impact of the credibility concerns identified are seriously damaging, both in relation to specific claims, and as to the applicant’s overall credibility. The credibility concerns also cause the Tribunal not to be satisfied as to the account of the second named applicant as to events [in] November 2013 and [in] July 2014. Notwithstanding consistency with the evidence of the applicant, evidence can be rehearsed.

13. The Tribunal is not satisfied that the applicant was potentially of adverse interest to authorities in 2013 because he [worked in certain occupation] causing the applicant to decide he needed to obtain a visa to Australia. The Tribunal is not satisfied that the applicant was suspected by authorities of being involved in a coup plot because of any association he had with Mua, as a result of the applicant’s business dealings with Mua, or due to his association with Mua more generally, or for any other reason. The Tribunal is not satisfied that the applicant was interrogated, detained and physically harmed by police in the incidents as claimed [in] November 2013 and [in] July 2014. The Tribunal is not satisfied that the applicant fled Fiji in January 2014 because of the incident [in] November 2013 or because he heard that police could create difficulties for [certain people].  The Tribunal is not satisfied that the applicant returned to Fiji in March 2014 despite having a fear of harm. The Tribunal is not satisfied that the applicant came to Australia for the final time in July 2014 because of the incident [in] July 2014 and/or on the basis of authorities having an adverse interest in the applicant because of him being suspected of being involved in a coup or due to his connection with Mua. The Tribunal is not satisfied that the applicant was placed on a watchlist after arriving in Australia for the final time because of the contents of a hard drive he had taken from his former employer, or for any other reason.

14. The Tribunal is not satisfied that the applicant had a vocal opinion on democracy which haunted him from 2006 until 2014. The Tribunal is not prepared to accept that the applicant spoke up against the regime in meetings at work.

15. The Tribunal is not satisfied that authorities in Fiji have any adverse interest in the applicant.

16. The Tribunal notes the Statutory Declaration of the applicant dated [in] July 2017 indicating that a friend of the applicant who has visited Australia warned the applicant that Mua had told the applicant not to return to Fiji and that Mua himself feared for his life. The Tribunal is not satisfied that this second hand information overcomes the cumulative effect of the credibility concerns. The Tribunal also notes that there is no evidence that Mua has suffered any physical or other serious or significant harm in Fiji for the more than 3 ½ years after he was supposedly suspected of organising a coup in late 2013.  

17. The Tribunal acknowledges that independent information, including that provided by the applicant on 21 June 2016, indicates that police and the military in Fiji have acted in a heavy handed manner and there are credible allegations of mistreatment of detainees including based on political activity, and concerns about the rule of law. However, for the reasons indicated, the Tribunal is not satisfied that the applicant has been subject to any such mistreatment or faces a real chance of such treatment. There is also evidence that authorities will act in relation to coup or secessionist activity, however the Tribunal is not satisfied that the applicant has so acted or would be suspected of such activity.

18. In the first Tribunal hearing, the applicant gave reasonably convincing evidence of having a relationship with the opposition leader, the Honourable Teimuma Kepa and of assisting during the 2014 election campaign. This included facilitating political meetings in villages and taking voters to voting booths. Puzzlingly, however, the applicant indicated that he was not a member of SODELPA, indicating that a personal connection with the Opposition Leader meant that this was not necessary. The Tribunal has difficulty understanding that if the applicant was committed to the interests of Ms Kepa that he would not join the party. Nevertheless, the Tribunal is prepared to accept that the applicant had some involvement supporting the campaign of Ms Kepa. 

100.   The applicant has indicated that he has had no involvement in Australia in political organisations in opposition to the government in Fiji, despite the fact that such organisations exist. Whilst that might suggest a limited level of political activism, the Tribunal is prepared to accept that, on return to Fiji, the applicant would wish to be involved in opposition politics in some way. However, the Tribunal would not be satisfied that the applicant would be a leader or organiser or high profile in his political activities or be perceived as such.

101.   As indicated in the DFAT report, and as discussed with applicant in the second hearing, there is reasonable tolerance for opposition political activity in Fiji today, with some limits, particularly relating to personal criticism of senior members of the government. DFAT’s assessment as to risks in relation to political activity is limited to senior members of opposition political parties and leaders of opposition political parties. The Tribunal does not consider that the applicant has been, or would be, either a senior member or a leader of the opposition political party.

102.   The applicant’s representative submitted at the end of the second Tribunal hearing that it is not claimed that the applicant faces a real chance of serious significant harm based on any involvement he may have in Fiji in opposition politics. The representative indicated that the basis on which harm is claimed is due to the applicant’s connection with Mua but with the applicant’s relationship with the Opposition Leader as an exacerbating factor. As indicated, the Tribunal is not satisfied that any relationship by the applicant with Mua has caused the applicant to be targeted by authorities.

103.   On the basis of the submissions of the representative and the independent information before it, the Tribunal is not satisfied that the applicant would face a real chance of serious or significant harm based on activity as an ordinary member of an opposition political party in Fiji or any other opposition political activity.

104.   Given factual findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm based on: being a former soldier and thus suspected of anti-government activity; having been suspected of involvement in a coup due to association with Mua or due to association with Mua more generally; being interrogated, detained and physically harmed by police on two occasions; being on a watchlist; being a vocal opponent of the government in the past; or based on any past or future political involvement; or for any other reason.

105.   In summary, the Tribunal is not satisfied that there is a well-founded fear of the applicant being persecuted for a Convention reason for any of the reasons claimed, or for any other reasons.

106.   In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm for any of the reasons claimed, or for any other reasons.

107.   The remaining applicants are not making claims on their own behalfs. They do not meet the Refugees Convention criterion or the complementary protection criterion.

108. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa

DECISION

109.   The Tribunal affirms the decision not to grant the applicants Protection visas.

David McCulloch
Member