1708612 (Refugee)

[2023] AATA 2490

1708612 (Refugee) [2023] AATA 2490 (26 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708612

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Rodger Shanahan

DATE:26 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 26 May 2023 at 1:40pm

CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity – indigenous Fijian – loss of traditional ownership and rights, and legal restrictions – subsistence fishing – other fishermen arrested – vague claims and evidence – no evidence of laws or other fishermen’s outcomes provided – country information – fishing licences available for minimal fee and areas reserved for traditional fishing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa on 13 December 2016.

3. The applicant appeared before the Tribunal on 16 May 2023 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Claims and evidence

   Protection Via Application November 2016

10. The applicant provided the following information in support of his claim:

11. It was always my intention if I have a chance of leaving Fiji it is to come to Australia. To me Australia is the best country in the world that provide refugee for anyone that need to survive when I have the chance I thanks God and I took it and that is how I am in Australia.

12. It has already happened in 2014. The only thing that I cherished the most in my life is my family was destroyed in 2014, my wife left me. The repercussion of 2006 coup started everything for us indigenous Fijians. The work became tough, all what we used to enjoy as rural dwellers no longer existed. If I am allowed to return my life will be cut short there is no more freedom in Fiji and the only people suffering are the Fijians.

13. Of course to lose a family is better to die than continue living. The people who are responsible are still in power. They have destroyed what was in place for us, from the great council of chiefs, land and fishing rights, traditional ownership the restriction we have in fighting our case in courts against the authority. 

14. The government of the day controls everything . They are in charge of all levels of our life from village, provincial and national level. Everything has to go through them. If I seek help I will end up with them.

15. The mistreatment of indigenous Fijians has already started and there is no way back everything that we have treasured in life has gone. The government in power is legalising all the things that we owned to be under their control such as land, fishing rights, minerals and day to day affairs of our village and province.

    AAT Hearing

16. The applicant claimed that if he returned to Fiji he relied entirely on fishing to subsist and the government had passed a law and put a restriction on this. Asked what bill he was talking about he said it was the Gulli-Gulli Bill. Asked what serious harm he feared, he claimed that he could be arrested as it was now illegal to fish on their own fishing grounds.  He agreed that he feared being arrested by the Fijian police because it had been made illegal to fish on his own fishing grounds. Asked if he had any other claims he stated that he was the breadwinner of the family and this was the main income the family relied on. This was his only claim.

17. Asked to expand on his claim, he said that other fisherman had been arrested and their catch had bene taken. They were awaiting their court hearing. Asked when they were arrested he said it was 2014/15. It was put to him that they were arrested nearly 10 years ago so their court case should have been concluded by now. He said that he came to Australia in 2016 and hadn’t heard anything since. It was put to him that he had not provided any evidence to the Tribunal about this and he had to make the case. If he had no evidence that anyone had been arrested. Let alone had gone to court then the Tribunal was unlikely to be able to give the claim any weight.

18. He was asked what he had done in the last seven years to find out the result of the court case, he just said that he hadn’t found out. It was put to him that he had not provided any evidence regarding a fishing law that had been passed and the Tribunal was unaware of such a law. He claimed that he was just presenting from his knowledge. It was put to him that he was trying to convince the government that he required protection and the law he referred to must have been in force before he came to Australia so it must have been in place for nearly a decade yet he had not provided any evidence regarding it.

19. He said that he had heard since being in Australia that one needed a fishing licence in Fiji to fish. He was asked why he didn’t just get a fishing licence, he said that he had experienced life in Australia and it had made a big difference in his standard of living. Asked to answer the question he said that he would find it hard to go back to [fishing] at [age]. Asked why he couldn’t just buy a fishing licence, he claimed that he would have no money in Fiji.

20. Asked what a licence cost given people must have bought them in Fiji, he said that he didn’t ask. He was told by a cousin/brother that a licence had to be purchased. Asked how he knew he couldn’t afford one if he didn’t know what it cost or whether he needed one as a local fisherman. He said it cost about 100-150 dollars annually.

21. It was put to him that governments were allowed to make laws as they saw fit and he was asked why this represented serious harm to him. And if everyone who needed to, required a fishing licence then it wasn’t discriminatory. He said that fishing was their only source of living. Asked how he fished, he said that he spearfished.

22. It was put to him that he also claimed to have been a farmer and undertook farming activities. He was asked why he couldn’t farm, or farm and fish. He said that he could earn money daily by fishing but seasonally by farming. Asked why he couldn’t do both, he said that he could and it wasn’t fun but it took up all his time. It was put to him that he still had time to come to Australia on a [tour] so he must have had some spare time. He said that he had to fish night and day to pay for the [tour]. It was put to him that this was his choice.

23. Asked if he had relatives in Fiji, he said he had his mother and [number] siblings and cousins also. He also had [number] children. He was divorced from his wife who had his children with her. Asked why he didn’t mention the fishing law in his written application, he claimed that it was written there. It was put to him that it wasn’t written. The Tribunal had concerns that he wasn’t a fisherman and this fishing law he claimed didn’t appear to exist and he didn’t have any interest in the alleged court case involving his friends. He said that this was all that he knew.

24. He was advised about s 424AA and it was put to him that the Tribunal had looked at the Fijian Fisheries Department website that contained that fishing legislation and that the fee for an overseas fishing licence for a boat was $5 and there were areas reserved for traditional fishing so no licence was required for these activities. There were also exemptions from fees for Fijians undertaking certain traditional fishing activities. This was different to what he claimed regarding the cost of licences which would indicate that he had no idea about licences in Fiji and that he may not even need one. This lack of knowledge raised serious questions that he was not a fisherman in Fiji.

25. He asked if it was the law mentioned was from the previous government and he was told that it was the current law from the government website and, given he had not provided an alternative it was assumed this was current. The applicant said that he agreed with what the Tribunal had put to him. He said that he didn’t know any more about the fishing laws or what rights the government gave the fishermen.

26. He was told that the Tribunal had a concern that he just came to Australia to work and there was nothing stopping him from returning to Fiji. Asked for a response he said that he had nothing to say.

    CONSIDERATION OF Claims and evidence

27. The applicant first arrived in Australia [in] November 2016 on a temporary work, short stay visa and applied for protection on 13 December 2016. I have seen a copy of his passport and I am satisfied that he is a Fijian national.

28. The applicant is a [age] year-old male. He claimed that if he returned to Fiji he could be arrested because it was now illegal to fish in his fishing grounds without a licence. He had no other claims.

29. In considering an applicant’s account, undue weight should not be placed on some omission or confusion to conclude that a person is not telling the truth. Nor can significant embellishments or inconsistencies be lightly dismissed. The Tribunal is not required to uncritically accept any or all of the claims made by an applicant.

30. I found the applicant’s claims to be vague and to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claim in order to be granted a protection visa.

    Fishing Claim

31. I do not accept that the applicant relied solely on fishing to subsist but that a new law had been introduced that required him to get a licence and he would no longer be able to fish. The applicant was vague about the law he said prevented him from being able to fish as he used to.

32. He provided no evidence of the bill that he said had been passed, was unaware of what the alleged licence that he required cost and when it was pointed out that he had claimed he could not afford it even though he didn’t know what it cost, he claimed that it cost 100-150 dollars. He provided no evidence to support this claim. The Fijian Fisheries Ministry website contains copies of the relevant legislation yet there is no mention of the new laws that he claims have been passed, or the requirement for individual fishing licences. The only mention of licences applies to Fijian fishing boats which only cost a few dollars, as well as exceptions for a number of local fishing methods. 

33. This alone would have been enough to disbelieve his claim yet there were other shortfalls in his evidence. He claimed that friends of his had been arrested under this new law, yet even though he claimed this occurred eight years ago he was unable to say what happened to them as a result of the court case. Given the importance of their arrest to his claim his lack of knowledge regarding their fate does nothing to strengthen the Tribunal’s view regarding the truthfulness of his claim. He also has siblings and cousins still in Fiji so it would have been easy to have found out the result of the court case if such an event ever happened – given his lack of knowledge regarding the matter I do not accept that the incident ever occurred.  

    Other Issues

34. He made a number of vague claims in his written protection visa application that were not made at the hearing. I will address them for completeness’ sake. I do not accept that the government of the day was legalising (legislating) for everything to come under their control such as fishing, mineral and land rights and the day-to-day affairs and this was part of the mistreatment of indigenous Fijians.

35. To begin with this claim was made in 2016 and, while he blamed the government and noted that it was still in power, a new government has been elected since that time. Given he made claims regarding new government legislation that applied to fishermen and later admitted that he didn’t know any more about fishing legislation once adverse information was put to him, I am satisfied that the claims made regarding government approaches to land and indigenous rights also lack any similar evidentiary base.

36. He provided no supporting evidence regarding his claims in this regard, indeed they did not form the basis of the claims he mentioned at his hearing. When it was put to him that he had also claimed to be a farmer he agreed and complained that the income here was only seasonal, not that the government had initiated any policies that precluded him from pursuing this occupation.

37. As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.

    Complementary Protection

38. I do not accept that the Fijian government has passed a new law requiring the applicant to have a fishing licence that he would be unable to afford, that he had been or would be mistreated as an indigenous Fijian, or that the government was trying to control land, fishing, mineral rights and local government at the expanse of the indigenous Fijians. Because of this, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.

39. As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, that there is a real risk that the applicants will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).

    CONCLUDING PARAGRAPHS

40. 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).

41. 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).

42. 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

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

    Steve Norman
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …