1708789 (Refugee)
[2022] AATA 5113
•14 December 2022
1708789 (Refugee) [2022] AATA 5113 (14 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Adrian Phillip Joel (MARN: 9357728)
CASE NUMBER: 1708789
COUNTRY OF REFERENCE: Fiji
MEMBER:Peter Papadopoulos
DATE:14 December 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 December 2022 at 12:15pm
CATCHWORDS
REFUGEE – protection visa – Fiji – fear of harm from military – defiance of military and work superior at times of coups – harassment, intimidation, verbal abuse and monitoring – no physical harm, arrest or detention – political opinion – member of then-opposition party and campaign volunteer – member of political party and organisations in Australia – credibility – vague, exaggerated or misconstrued claims – no adverse consequences at relevant times, later suspension for unrelated reasons and retirement at set age – delay in departure and departure without incident – no documentary evidence of incidents in Fiji, and limited activities in Australia – supporting statements selective or misleading – stated intention not to express political opinions or be politically active if returned – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J(1)(a), 36(2)(a), (aa), 65CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is a [Age] year old man from Fiji. He claims to be a national of Fiji.
The applicant arrived in Australia [in] September 2015 as the holder of a visitor visa and has not departed since that date. On 10 November 2015, he applied for a subclass 866 Protection (Class XA) visa (protection visa).
On 3 April 2017, the delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
This is an application for review of the delegate’s decision.
The applicant attended a Tribunal hearing on 26 September 2022.
The issue in this case is whether the applicant is either a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets complementary protection. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in Attachment A.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims and evidence
Claims and evidence provided to the Department
Protection visa application
According to information contained in his protection visa application, the applicant is a [Age] year old Fijian national who was born in [Village] in Fiji.
Based upon information in the protection visa application form that was completed by the applicant on 9 November 2015, the applicant:
· worked for the Fiji Correction Service (FCS) between June 1976 and April 2009
· was married [in] February 2001 and divorced [in] January 2010
· had, at that time, [brothers] including [Mr A] and a sister named [Ms B].
In relation to his claims for protection, the applicant stated that he left Fiji to visit Australia but that his true intentions were to get away from threats by the military in Fiji. He claimed that when he worked in the FCS as [Job title] at [Workplace 1], counter-revolutionary warfare (CRW) soldiers were imprisoned there. On some unspecified date, he had a verbal argument with military command who were seeking access to the CRW soldiers and did not permit them to enter the prison or interfere with prison operations. He maintained that this left him in a precarious position whereby he was harassed, intimidated and verbally abused by the military in Fiji, and that if he is returned, he believed he would be taken to a military camp and tortured.
The applicant also maintained that he could not relocate within Fiji as the military forces under Josaia Voreqe ‘Frank’ Bainimarama (Bainimarama) observe all of his movements and that he has been followed wherever he goes. The applicant stated that his brother [has] “dobbed” him into the military.
The applicant stated that he will be mistreated if he returned to Fiji, on account of his strong support for The Social Democratic Liberal Party (SODELPA). He also stated he is “totally against” the government.
The applicant maintained that in Fiji the military is “running the country”, no authorities can protect him, and citizens are too scared to voice their political opinions.
Protection visa application interview
The applicant attended an interview with the Department in connection with his protection visa application on 16 May 2016. The interview was conducted with the assistance of an interpreter in the Fijian and English languages.
The Tribunal has listened to a copy of the recording of the protection visa application interview and refers to it, where relevant, in the findings and reasons below. However, for sake of clarity and thoroughness of the claims presented to the Department, the following additional evidence was provided by the applicant during the protection visa application interview:
· That he and his family were never harmed while he was working at the prison.
· That he thought he was being continuously followed by the military between 2009 and his departure from Fiji in September 2015 as he would often see a twin-cab ute following him in the streets or parking across from his house at night and that the military used twin-cab utes to intimidate and detain people and beat them up.
· That he was never physically harmed by the military in Fiji but was “psychologically harmed” because he was anxious about the military arresting him as they were close to doing so in 2014.
· That he departed Fiji without incident because he followed the advice of a lady working at Immigration at the airport who told him to come to the airport in the afternoon when they were operating on skeleton staff as that would not trigger the suspicion or attention of the military.
· That he has supported a number of anti-government groups and participated in a number of anti-government activities during his lifetime:
o Before he left Fiji in September 2015, he was a member of SODELPA and undertook campaign work for this opposition party in the lead up to the 2014 Fijian elections. He was a member of SODELPA’s predecessor, namely Soqosoqo Duavata ni Lewenivanua (SDL), since 2001 but only became active in promoting SDL after 2006.
o After his arrival in Australia [in] September 2015, he:
§ joined [Organisation 1] in November 2015
§ joined the Pacific Indigenous Samaritan Assoc. Inc (PISAI) in February 2016
§ participated in a protest against the Fijian government in late April/early May 2016 that took place outside [a Venue]
§ posted “anti-government” material in 2016 on a [Social media] page that was open to members of a particular [Social media] group whereby he shared information about Fijian soldiers who were tortured and killed.
Supporting documents
The applicant lodged the following documents with the Department in support of his protection visa application claims:
· letter from [Mr C], [Job title] of Fiji Corrections Service dated [July] 2012
· two letters from [Mr D], former [official] dated 1 November 2015
· letter of reference from [Mr E], Barrister and Solicitor, [official] dated [November] 2015
· letter from Ms Oni Kirwin, Executive President/Director of the Pacific Indigenous Samaritan Assoc. Inc., Executive President of the Fiji Native Government in Exile and Advocate for indigenous people, Pacific Forum Member-states dated [May] 2016 (Ms Kirwin’s letter dated [May] 2016)
· letter of reference from [Reverend G], Secretary, [Church office], [Church 1] in Fiji (undated)
· letter from [Mr H] dated 26/0/2015 (sic)
· various media articles generally relating to the political situation in Fiji including:
o ‘Fiji human rights lawyer has office ransacked’, Radio New Zealand International, 4 April 2016
o ‘Break in at Lawyers office’, Fijione TV, 29 March 2016
o ‘Uproar over comment’, The Fiji Times Online, 11 January 2016
o ‘Fiji opposition says PM is ‘unbelievable’’’, Radio New Zealand International, 29 December 2015
o ‘Fiji lawyer disgusted at AG’s move over torture probe’ Radio New Zealand, 16 December 2015
o ‘Lawyer blasts Bainimarama’s sedition comments’ Radio New Zealand, 3 September 2015
o ‘Lawyer says Bainimarama speech interfered with sedition court cases’, Pacific Beat, 2 September 2015
o ‘Fiji PM ‘distracts’ with overseas plotter threat’, SBS, 31 August 2015
o ‘Crushed’, The Fiji Times Online, 15 August 2015
o an undated article of unknown origin
o ‘Nothing done about torture complaint’ unknown source, undated
o Untitled article (photo credited Radio New Zealand International), undated
· various photographs and images including:
o images of cadavers and seriously injured persons
o photographs of various protest activities depicting persons holding banners stating Bainimarama is a liar, traitor and/or thief
· certified copies of:
o passport bearer identification of the applicant’s Fijian passport issued [2010]
o the applicant’s birth certificate
o Certificate from [Church 2] to [Pastor I] dated 4 December 2012
o passport bearer identification page of [Mr I]’s Australian passport issued [2004].
Summary of the delegate’s decision
On 3 April 2017, the delegate refused the protection visa application as they were not satisfied that the applicant would suffer persecution on account of his anti-government views, nor on account of incidents that took place whilst he was employed as a prison officer.
The delegate found the applicant was a low-level SODELPA supporter but did not accept that there was a real chance that the applicant would be targeted by the military as an anti-government activist as he did not have sufficient profile.
Given that the applicant was not detained or arrested in Fiji, the delegate did not accept the applicant’s claim, which was expanded upon during the protection visa application interview, that he was followed or monitored by the military for around five years. The delegate also found that the applicant did not have a political profile that made him of any interest to the authorities. This finding was further supported by the fact that the applicant and his family were not harmed and that the applicant had departed Fiji without experiencing any problems from the Fijian authorities.
The delegate also observed that the applicant did not leave Fiji for a period of about three months after he was granted his Australian visitor visa, thereby casting doubt on the claim that the applicant was at risk of imminent danger. It was noted that this impetus to depart Fiji did not occur until 2015, long after the applicant’s claimed adverse interactions had occurred.
The delegate also noted sources indicating that the interim military government kept an emigration watchlist, and the fact that the applicant was able to depart the country without incident suggested that he was not of significant interest to authorities.
Claims and evidence provided to the Tribunal
The review application and pre-hearing submissions
On 7 February 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. On 4 August 2020 the applicant appointed a registered migration agent, namely Mr Adrian Phillip Joel (MARN 9357728), in connection with his review application.
On 12 August 2022, the Tribunal received an email from the representative which attached a letter dated 7 August 2022 (submission dated 7 August 2022) which I understood to contain the following submissions:
· The applicant was a long-term prison warden in [Workplace 1] and had some seniority in his position until he retired in 2009. Whilst at the prison, the applicant was concerned about the military’s interest and attempts to enter the prison and interfere with certain detainees, specifically:
othe CRW soldiers who were detained from 2011 (sic. 2001); and
o[Mr J] whose imprisonment, from 2006 perhaps, coincided with the applicant’s tenure.
This antagonised the military, and the representative argued that this additional claim should be considered apart from a possible threat from disenchanted soldiers.
· The applicant no longer supports SODELPA and now supports the Peoples’ Alliance Party (PAP), an opposition party led by former Brigadier General Sitiveni Rabuka. The applicant says he is active in Australia in his support of PAP and this may prove to be a “source of conflict” given the following:
oSignificant country information indicating continuing human rights violations in Fiji by the army against dissenters. Reference was made to an article from the Monitor Tracking Civic Space service as a primary source of information for human rights violations, and the Public Order Act (POA) and Media Development Act which detailed the criminalisation of free expression in Fiji.
oParagraphs 5.11 and 3.36 - 3.38 of the DFAT Country Information Report Fiji (20 May 2022)[1] (the DFAT Report) which highlights continuing issues of police violence, abuse of military power and ‘conflict against low profile opposition party members’ for persons who may facilitate ‘high profile criticism’. The representative maintained that this country information, when read in conjunction with the article from East Asia Forum, supported the argument that the applicant was a refugee based on his political opinion due to his recent fortnightly attendance at meetings in Australia where he has supported PAP.
oParagraph 4.5 of the DFAT Report concerning adverse application of the POA and that the applicant may fall within its purview and thereby has claims for complementary protection.
[1] DFAT Country Information Report Fiji (20 May 2022)
At the foot of the representative’s letter dated 7 August 2022 were four hypertext web links directing the Tribunal to the following documents:
· the DFAT Report
· ‘Fiji Government continues to silence dissent as impunity for torture persists’, Monitor Tracking Civic Space, 15 September 2021
· ‘Human rights violations must be addressed’, The Fiji Times, 18 July 2022
· ‘The politics of COVID-19 and military government in Fiji’, East Asia Forum, 14 January 2022.
The hearing: supporting documents and oral evidence
The applicant appeared before the Tribunal on 26 September 2022 to give evidence and present arguments. The representative also attended the Tribunal hearing which was conducted with the assistance of an interpreter in the Fijian and English languages.
At the outset of the hearing, the applicant provided his original Fijian passports, one issued [in] 2000 and another issued [in] 2010. The Tribunal made photocopies of these documents and then returned them to the applicant during the hearing. The applicant also lodged the following documents with the Tribunal at the outset of the hearing:
· Letter from [Mr K], [Official] of the People’s Alliance Australia dated [September] 2022
· Minutes of Special Meeting of The People’s Alliance Party – Australia dated [April] 2022
· Letter from [Mr D], former [official] dated [November] 2015.
The representative agreed to provide a post-hearing submission to the Tribunal explaining the relevance of the documents the applicant lodged at the hearing and how the documents related to the applicant’s claims.
Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submission
The Tribunal received an email from the representative on 4 October 2022 (submission dated 4 October 2022) which contained various submissions which I understood to be as follows:
· The applicant’s protection claims now relate to him being a member of PAP as he is no longer a member of SODELPA.
· Aspects of the DFAT Report to which the Tribunal referred to during the hearing which did not support the applicant’s case were unreliable for various reasons while other aspects of the DFAT Report supported the applicant’s claims.
· Ms Kirwin’s letter dated [May] 2016 is relevant to the applicant’s case insofar as it identifies significant decrees which indicate systematic persecution and discrimination.
· Despite the fact that the applicant retired in 2009 and arrived in Australia in 2015, country information “indicates continuing persecution” and that limited evidentiary weight can be ascribed to the lack of harassment prior to the applicant’s departure from Fiji as his circumstances have changed since arriving in Australia, specifically his participation and affiliations with PAP in Australia (of which he is a founding member) which might result in him being unable to freely pass through Fiji Customs upon his return.
· The Tribunal’s concerns raised at hearing in relation to the credibility of the applicant's:
o claims that he escaped Fiji through leaving Nadi airport at a particular time because his name was on a watch list or stop departure list could be “challenged” by claims that have arisen after his departure such as those relating to his PAP activities in Australia
o claims surrounding when [Mr J] was imprisoned and how many CRW soldiers were imprisoned should be of no consequence given that the passage of time may have affected the applicant’s recall and that the applicant otherwise demonstrated personal knowledge of the circumstances of the imprisonment of this group.
CONSIDERATION OF Claims and evidence: Analysis (assessment, findings and reasons)
Nationality: Country of Reference / Receiving Country
The applicant claims to be a citizen of Fiji and provided to the Department a copy of his Fijian passport issued [in] 2010. The delegate was satisfied that the applicant was using his own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Fiji. The Tribunal accepts that Fiji is his receiving country for the purpose of assessing her claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
Credibility
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] MIMA v Rajalingam (1999) 93 FCR 220
[3] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or for the reason claimed. Likewise, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[4] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[5]
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170
[5] Sun v MIBP [2016] FCAFC 52 at [69]
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and evaluating the applicant’s evidence.
In the present case, the Tribunal takes into account the applicant’s evident lack of familiarity with the Tribunal setting and his limited English language proficiency. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked the applicant’s responses where necessary.
The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
The Tribunal formed the impression that the applicant’s protection claims drew on incidents and experiences that he had in Fiji, but that he tended to exaggerate and misconstrue the consequences of these, with a view to bolstering his claims for protection. It is also concerned that the applicant’s current and former political party associates have been prepared to assist the applicant with his application by providing selective or misleading statements. The Tribunal’s full assessment follows.
Anti-government activities and experiences while living in Fiji
Anti-government activities in resisting the military while working for the Fiji Corrections Service (FCS)
Incidents pertaining to the detention of the CRW soldiers in or around 2001
At hearing, when asked about certain claims that were raised prior to the date of the delegate’s decision, the applicant stated that he had heated arguments with military officials who were obeying orders from Bainimarama and seeking to influence operations at [Workplace 1] in relation to more than 20 CRW soldiers [who] had been imprisoned there.
One particular argument was with a military official who arrived at the prison and insisted on gaining access to prison in order to interrogate detained CRW soldiers. The applicant refused their entry.
On another occasion in 2001, the applicant made a telephone call to the Legal Director of the military and defied the military by telling the Legal Director “that if the military was going to give us orders on how to operate with these particular prisoners then the military are better off taking them back to the military camp”. When asked why he sought to protect the CRW soldiers from the military, the applicant insisted that he did so for “humanitarian reasons” and that it was his job to ensure that the prison’s visitation and access protocols were adhered to.
The applicant was not reprimanded by his employer at the time for his refusal to comply with the demands of the military officials in 2001.
Incidents pertaining to the detention of [Mr J] in 2006
Furthermore, the applicant expanded upon a new claim at hearing that had been raised by his representative after the delegate had made their decision. On one particular day in 2006, the applicant stated that army personnel had forced their way into the prison, during the day while he was not present, in order to see [Mr J] who was imprisoned there. The prison officers on duty told the army officers not to bring their weapons into the prison but the army personnel refused to do so and then “worked their way into the prison”. The applicant learnt of this incident from his fellow prison officers when he returned to duty and was told that the army personnel were planning to return that evening to take over the prison. That evening after the prisoners were locked in their cells, a truckload of about 10 or 15 army personnel returned and the applicant successfully resisted their entry to the prison. The Acting Commissioner of Prisons then became involved and ordered the applicant to allow the army personnel to enter the prison. The applicant told the Acting Commissioner of Prisons that he would not obey his orders and that he was prepared to be sacked for such disobedience. Again, the applicant was not reprimanded by his employer for his refusal to comply with the demands of the army officers and the Acting Commissioner of Prisons.
Findings
The Tribunal has reservations about the applicant’s characterisations of these incidents and it does not accept his portrayal as wholly reliable. The Tribunal does not have independent information verifying the applicant’s claims in relation to his resistance to military efforts to enter [Workplace 1] as claimed. The Tribunal doubts the degree to which the applicant claims to have defied the military and his prison superior during his tenure at the prison.
The doubts in relation to the incidents in 2001 are rested upon an exchange during the hearing which revealed that he did not apply for asylum when he was visiting [Country] in 2003, only two years after these incidents occurred, that he did not fear persecution at that time. On the basis of that response, the Tribunal finds that the incidents claimed in 2001 may have occurred but gave no cause for concern to the applicant and no harm arose in relation to those incidents at the time.
In relation to the incident in 2006, the Tribunal finds that the applicant has embellished the account of his conduct in defying the military and his superior at that time. It is difficult to accept that such resistance would not have immediately resulted in some form of reprimand or mistreatment from military officials and/or his prison superiors at the time. When pressed at hearing on this concern, the applicant gave evidence that he was suspended from his role as [Job title] at the prison for a month during August 2008. When asked as to why he was suspended, the applicant explained that a prisoner had escaped from a work party [and] that the person responsible was another prison officer within his unit who directly reported to him as [Job title]. The applicant maintained that he was unfairly suspended because he was being targeted for his previous anti-military stances in the workplace since 2001 and 2006 rather than for not doing his job properly in 2008. The Tribunal then raised its concerns with the credibility of this claim given that the reasons given for his suspension related to a genuine incident where one would reasonably expect a prison officer to be suspended. The applicant was unable to assuage the Tribunal’s concern in this regard particularly as no credible response was given in relation to why there was such a delay in the applicant being “punished” in the workplace for defying the military in incidents that occurred two and seven years earlier. It is worth noting at this juncture that the applicant did not experience any adverse consequences immediately after the incidents that took place in 2001 and 2006. Had the applicant’s defiance of the military been of concern to the authorities, the Tribunal expects that the applicant would have experienced some form of harm, including a threat or other adverse consequence in connection with his employment, soon after those incidents took place.
Furthermore, the applicant’s account that he was suspended for a month from his role as [Job title] in 2008 because of the incidents that took place in 2001 and 2006 is difficult to accept. The applicant maintained that the real reason he was suspended was because of his anti-military behaviour in the workplace in 2001 and 2006 and that he was “framed” for a prisoner escaping. The Tribunal explored this further at hearing and challenged the applicant’s characterisation of this by suggesting that the suspension was a reasonable outcome given that he was ultimately responsible for the work party from which the prisoner had escaped. The applicant insisted that he was unfairly suspended in 2008 from his role as a prison warden as the incident had occurred on the first day he became responsible for that unit. The Tribunal raised its concern with the applicant at hearing that it seemed implausible that the authorities, whether directly or through his employer, would wait years to take action against him for his anti-military activities in 2001 and 2006 at the FCS and that this would eventually take the form of a suspension from his role as a prison officer for one month in 2008. The applicant was unable to address the Tribunal’s concern in this regard. The Tribunal finds the applicant’s evidence at hearing on this issue was exaggerated and inconsistent with other evidence given at hearing where the applicant insisted that he had worked on secondment throughout 2008 in a non-custodial role at [Workplace 2] as an [Occupation 3].
Furthermore, the Tribunal has difficulty accepting that the applicant was indeed suspended, let alone for the reasons claimed, as it has not been provided any documentary evidence in that regard. The applicant also acknowledged at hearing that he had no evidence pertaining to his suspension and his involvement in the incidents that occurred in 2001 and 2006 at his workplace. However, the evidence before the Tribunal included a letter from [Mr C], [Job title] of the FCS dated [July] 2012 which made no reference to the suspension. This letter read, in part, as follows:
During his years of continuous service [the applicant] had served at [the various corrections facilities] in prison operations from 1976 to 2009. Whilst serving at the Fiji Corrections Service, he was promoted to the various ranks until he reached the rank of [Job title].
The letter indicates that the applicant’s period of service was “continuous” at the FCS and there is no mention of the applicant ever being suspended or demoted after reaching the rank of [Job title] during his time as a public servant within the FCS.
The Tribunal is further concerned by the conflicting narrative surrounding the applicant’s employment by way of evidence that has been presented in relation to the cessation of that employment in 2009. The letter of support from [Mr D] dated [November] 2015, which the applicant provided to the Department and the Tribunal, states that the applicant was “dismissed” from the FCS. Furthermore, the letter of support from [Mr K], [Official] of the People’s Alliance Australia dated [September] 2022 that was provided to the Tribunal at hearing states that the applicant was “forced to resign from FCS” and that “his life was threatened by the current commissioner of the Fiji correctional services”. However, when these matters were explored at hearing, the applicant gave evidence that he was not dismissed but instead retired from the FCS [details deleted]. I accept the applicant’s oral evidence in this regard but remain concerned about the fact that the applicant has obtained and lodged evidence with the Department and the Tribunal which misrepresents the circumstances surrounding the end of his career with the FCS.
Taking into account the above, the Tribunal has formed the view that the applicant has exaggerated some aspects of his narrative and embellished the degree to which he claims to have resisted the military and disobeyed the advice of his superiors whilst working at the FCS. The Tribunal accepts that the incidents in 2001 and 2006 occurred but the applicant has exaggerated the degree of his involvement and actions that he took in relation to those events whilst also exaggerating the consequences of those actions by conflating the reason he was suspended in 2008 with the actions that he took in 2011 and 2006. The Tribunal does not accept that the applicant was targeted in his employment whilst working at the FCS for the anti-military or anti-government conduct as claimed.
Harassment and surveillance by military between December 2006 and September 2015
At hearing, the applicant claimed that military officials began harassing him after he resisted their entry to the prison to see [Mr J] in 2006. The army officers would wait outside the prison twice a week and harass him. This generally aligned with evidence given at the protection visa interview where the applicant stated that he had been continuously followed by the military between 2009 and his departure from Fiji in September 2015 because he would often see a twin-cab ute following him in the streets or parking across from his house at night and that the military used twin-cab utes to intimidate and detain people and beat them up.
The Tribunal has significant concerns in relation to the applicant’s account of the period and degree of military surveillance and harassment. There is no persuasive evidence before the Tribunal to support this claim. Firstly, there is no documentary evidence to support this claim, a concern which was acknowledged by the applicant at hearing. Secondly, while the oral testimony at hearing is generally consistent with that given at the interview with the delegate, the Tribunal has concerns in relation to the plausibility of this claim as no reasonable explanation was given in relation to why military officers would have engaged in a bi-weekly surveillance and harassment operation that spanned almost nine years for the purpose of intimidating the applicant due to his purported anti-military resistance at the FCS. Had the applicant been of interest to the military forces or more broadly the government, it is difficult to understand why those authorities would expend resources through surveillance and intimidation on an ongoing basis, particularly after the applicant had retired from the FCS in April 2009 and had no further official capacity to defy the military.
The Tribunal raised with the applicant at hearing that it seemed implausible that the Fijian authorities would still be interested in harming or monitoring the applicant if he returned to Fiji because:
· he left his employment at the FCS in April 2009 and has not posed a barrier in that regard for over 13 years
· he had not been harmed in the many years before he left Fiji in September 2015
· he had not been harmed by the military apart from the vague and unsubstantiated claims surrounding monitoring and surveillance that he had made.
When invited to comment upon this concern at hearing, the applicant declined.
Findings
The Tribunal finds that the applicant has exaggerated his evidence in this regard and misconstrued the situation following the incidents that occurred in 2001 and 2006 at his workplace. The Tribunal does not accept the claim that the presence of any military officers near the applicant’s workplace or home was linked to the applicant. The Tribunal also does not accept that the applicant sensed he was being monitored throughout this period or that he genuinely feared for his safety.
The arrest of the applicant’s friend [Mr D] in 2012
At hearing, the applicant was asked whether he knew any people in Fiji, including family members, who had been intimidated, harassed, persecuted or in any way harmed by the Fijian military or government as a result of his behaviour in the prison or him expressing any political opinion or having some political profile. The applicant responded by insisting that his friend [Mr D], a former [official], was arrested because he was overheard talking to the applicant on the steps of a courthouse in 2012 during the trial of [Mr J]. The applicant claimed that he and [Mr D] had been overheard saying that they were telling lies during the trial in the courthouse. The applicant claimed that [Mr D] was arrested “because he was talking to me” and that [Mr D] was forced to spend the weekend in a police station.
While the Tribunal would be willing to accept that [Mr D] may have been arbitrarily detained by the police in 2012 given his high-level political profile, it is unwilling to accept that this weekend detention occurred because of [Mr D]’s relationship with the applicant and / or because the police overheard [Mr D]’s discussions with the applicant on the steps of the courthouse. The applicant’s contention is difficult to accept because there was no logical reason given at hearing as to why the police only arrested [Mr D] at that time if both men were of interest to the authorities. If the police had overheard both men making anti-government and anti-police statements on the steps of the courthouse, then the arrest of [Mr D] alone would suggest that the applicant was of no particular interest to the police.
Furthermore, the applicant’s recall of this event was particularly vague as he was unable to tell the Tribunal when the arrest occurred or provide much detail in relation to what he and [Mr D] specifically said on the courthouse steps beyond the sweeping statement that “they were telling lies in the courthouse”.
When pressed as to why this claim was not presented earlier, the applicant simply replied: “Because you asked me.” The Tribunal finds that this explanation is not reasonable in the circumstances given that the applicant had sufficient opportunity to raise this claim before the delegate made their decision and had the benefit of legal representation since May 2018. This adverse inference in relation to the credibility of this new claim that has been drawn by the Tribunal is supported the other credibility concerns pertaining to the vagueness and illogicality of the applicant’s account of this incident.
Quite apart from these matters, the Tribunal raised with the applicant at hearing that it had concerns about whether this incident occurred because it had not been detailed in the evidence that had been provided by [Mr D] in his own letter of [November] 2015. The applicant responded by stating that he did not know why [Mr D] did not disclose details of this incident in his letter of support. Had the incident occurred for the reasons claimed, the Tribunal maintains that it would have been detailed in [Mr D]’s letter of [November] 2015 and raised in evidence prior to the hearing.
Findings
Taking into account these matters and the available evidence, the Tribunal finds that [Mr D] was not arrested in 2012 wholly or partly for the reason claimed by the applicant.
Name on a “blacklist” and the departure from Fiji in September 2015
The Tribunal also has concerns in relation to the vagueness of the evidence given by the applicant in relation to his efforts to evade the authorities when he departed Fiji in 2015 because his name was placed on a “blacklist” by the authorities because he was considered to be “anti-government”. At interview with the delegate, the applicant stated he asked a lady who worked at Immigration the best time he should leave the country so that he would not trigger the military’s suspicion, especially if his name was on a “blacklist”. She advised him that he would probably be “let through” if he came during the afternoon as there was only “skeleton staff” working at the time. At hearing, the applicant expanded upon this account by stating that the woman who gave this advice was his cousin’s wife and that he booked a flight to depart Nadi airport at 7.15pm and arrived at the airport no later than 6pm.
While the oral evidence at hearing was generally consistent with that given at interview, it lacked the level of detail that would reasonably be expected from a person recounting their efforts in relation to evading authorities when escaping persecution. For example, the applicant was unable to describe the process surrounding his departure and the steps he took at the airport when departing Fiji. Furthermore, there is no documentary evidence or oral evidence from witnesses to support this claim. The Tribunal acknowledges that applicants may have difficulty corroborating their claims but the distinct lack of corroborative evidence in relation to this claim is especially telling given the familial relationship between the applicant and the person who assisted him with his “escape” from Fiji.
Even if the Tribunal were to accept this account of events surrounding the applicant’s departure, it does not necessarily follow that the applicant’s name was on a “blacklist” at the time he departed Nadi airport in September 2015. At hearing, the Tribunal put to the applicant that certain country information issued by the Department of Immigration and Border Protection on 20 December 2016 in relation to entry and exit procedures in Fiji[6] indicated that:
· Fijians who are on a watch list or stop departure list are not permitted to depart the country;
· departure is monitored at Nadi airport; and
· political activists of concern among others are on that list.
The Tribunal posited to the applicant that his departure was without incident because, taking into account this country information, the Fijian military, government and FCS officials had no concerns in relation to him being a person who needed to remain in Fiji because of his role as a political activist or anti-military or anti-government operative. The applicant insisted at hearing that he was on that list but was unable to provide any evidence to support a finding that he was a political activist of concern in the manner contemplated by the country information.
[6] Department of Immigration and Border Protection, Standard Q & A Report, Fiji: CI1207114913502 Entry and exit procedures in Fiji (20 December 2016)
The representative sought to argue that the Tribunal’s concerns raised at hearing in relation to the credibility of the applicant's claims that he escaped Fiji through leaving Nadi airport at a particular time because his name was on a watch list or stop departure list could be “challenged” by that fact that his PAP activities in Australia after departure might now mean it would be difficult for him to return as his name would now be on such a watch list. This argument is largely misconceived. The Tribunal’s concern relates to whether the applicant’s name was on a watch list when he departed Fiji and this should not be confused with the issue of whether his activities after departure have resulted in his name being put on or remaining on watch list.
Findings
Taking into account these matters and the available evidence, the Tribunal finds that the applicant’s name was not on a blacklist, or watch list or stop departure list, when he departed Fiji in September 2015.
Delay in departing Fiji
At hearing, the Tribunal noted that the applicant had been granted an Australian visitor visa on 2 June 2015 and that it took him over three months to depart Fiji [in] September 2015. The Tribunal then put to the applicant that this delay in departure raised a concern in relation to the credibility of his claims, particularly in relation to the genuine nature of his fear of harm. The applicant attributed the delay to having to find money for the airfare and wait for his brother-in law to “hand over” the shop he was managing in Suva.
The Tribunal accepts, on the basis that it is possible, that the applicant needed to raise the funds for the trip and needed to finalise matters at his brother-in-law’s shop. However, the Tribunal finds that the reasons given for the delay are both difficult to accept and implausible given the circumstances of this case. First, it is difficult to accept that the applicant needed to raise funds for an airfare to depart [in] September 2015 when he had applied for the visitor visa to Australia on 18 March 2015 and would therefore have been aware of the need to prepare to save for the airfare for a period of at least six months. Secondly, the applicant was unable to provide any detail in relation to why it took him so long to raise the airfare and it is difficult to accept that the applicant prioritised his brother-in-law’s business affairs over his own personal safety. The reasons given for the delay only serve to reinforce the Tribunal’s view that the applicant did not suffer any noteworthy adverse effects following his retirement from the FCS.
Findings
Taking into account these matters and the available evidence, the Tribunal finds that the applicant has exaggerated the degree to which he claimed to fear harm from the Fijian military and authorities prior to his departure from Fiji in 2015.
Political activity, expression and profile
Political activities, expression and profile whilst living in Fiji
At hearing, the Tribunal sought to explore the nature of the applicant’s political profile and activity in Fiji before he departed in September 2015.
Taking into account his written claims, the Tribunal asked when he first became a member of SODELPA or its predecessor SDL. The applicant stated that he was a financial member when SDL was formed and in 2014 he assisted SODELPA on a volunteer basis in relation to the 2014 election by volunteering as a campaign agent which involved helping two SODELPA candidates with their campaigns in the lead up to the election by spending time with them and taking them to various places in Fiji where they campaigned and raised funds for SODELPA. When asked about the nature and degree of his work as a campaign agent, the applicant stated that he performed the volunteer role in the six months leading up to the election and that during the first few weeks he volunteered about two or three hours of his time and that his commitment escalated to about four to five hours per week in the weeks leading up to the election. The applicant also gave evidence that he volunteered as a scrutineer for SODELPA on the election day in 2014 but did not further volunteer work for SODELPA after the election. The Tribunal accepts this evidence and finds that the applicant undertook these activities.
At hearing, the applicant stated that he had never been harmed, harassed or intimidated by the authorities in Fiji as a result of his participation in and support of SODELPA.
Findings
Taking into account the fact that these activities are of a low-level political nature and the fact that no persecution or harm was experienced by the applicant or his family as result of him undertaking such activities, the Tribunal finds that the applicant did not have a high-profile as an anti-government political activist or opposition party supporter whilst living in Fiji such that he was of any interest to the authorities.
Political activities, expression and profile whilst living in Australia
At hearing, the Tribunal sought to explore the nature of the applicant’s political profile and activity in Australia since his arrival in September 2015.
Support and association with PISAI and FNGIE
At hearing, the applicant told the Tribunal that he was a member of PISAI for about three months and he joined that organisation because a friend had told him that “they could help you getting your visa”. He claimed that he went to up to 12 meetings that took place on Wednesdays where he would make a donation between $10-$30 at each meeting. When pressed, he admitted that he could not provide evidence of his donations at these meetings and was unable to recall whether he was issued with a membership card or some other document confirming his membership of PISAI.
When the Tribunal sought to explore the applicant’s knowledge of PISAI’s political beliefs at hearing, the applicant understood that PISAI opposed the Bainimarama government and generally advocated for their recognition as an “indigenous government” as the Fiji Native Government in Exile. The Tribunal accepts the evidence given at hearing that he participated in a protest of about 200 people that was led by PISAI’s founder, Ms Oni Kirwin, in late April/early May 2016 and took place outside the Department’s Sydney office.
The applicant explained to the Tribunal that when he discovered that there was no transparency in relation to how PISAI’s funds were being spent by its founder, Ms Kirwin, he decided to quit the organisation and no longer believed in what it had been advocating.
The Tribunal then alerted the applicant to Ms Kirwin’s 28-page letter of support dated [May] 2016 which appeared on his Department file. The applicant was unable to explain why that letter had been provided in support of his application and could not provide any specific evidence in relation to the matters raised in that letter. The Tribunal gave a copy of the letter to the applicant’s representative as he too was surprisingly unaware of its existence. Following the hearing, the representative’s email of 4 October 2022 contained a submission that Ms Kirwin’s letter dated [May] 2016 is relevant to the applicant’s case insofar as it identifies significant decrees which indicate systematic persecution and discrimination. While the Tribunal acknowledges the representative argument, it was evident at hearing that the applicant had no real knowledge or understanding of the matters contained in that letter, including the various decrees. Furthermore, the Tribunal finds that it is highly unlikely that the Fijian authorities would impute him with any association with PISAI or the FNGIE, or its founder Ms Kirwin, given his brief and insignificant involvement with that organisation and his disavowal of its beliefs and political agenda.
The Tribunal is satisfied from the applicant's evidence at hearing that the applicant's sole purpose in approaching Ms Kirwin was to seek her assistance in obtaining protection in Australia. His contact with her group was limited, and his brief comments indicate that he was not interested in joining or making any substantial ongoing financial contribution to PISAI. The applicant has not claimed, and the Tribunal detects no implied claim, that he had any further involvement. Despite the applicant's claim of his very limited contacts with Ms Kirwin's group PISAI, the Tribunal has considered whether this could result in an imputed anti-government political opinion. The applicant suggested at hearing that his associations with PISAI and the FNGIE, particularly Ms Kirwin, may 'bolster' perceptions that he is an anti-government supporter, and holds a political opinion opposed to the government. The Tribunal is not satisfied that the Fiji authorities have any knowledge of or interest in the applicant's contacts with Ms Kirwin or her groups. Furthermore, given there are no claims or evidence supporting a claim that the applicant has had any past involvement with or interest in the breakaway Christian states of Ra and Nadroga-Navosa and other native people’s self- determination movements, the Tribunal does not accept that his brief contacts with Ms Kirwin or his participation in one protest in 2016 would result in such a perception.
Support of and association with [Organisation 1]
At hearing, the Tribunal sought to explore the applicant’s activities in support of [Organisation 1] given that he told the delegate at interview that soon after his arrival in Australia he became a member of the “[Organisation 1 – alternative name]” in November 2015. The Tribunal clarified that the “[Organisation 1 – alternative name]” of which he referred to at the delegate interview was indeed [Organisation 1]. When asked whether he thought he might be persecuted, intimidated or harassed in Fiji because of his activities with [Organisation 1], the applicant said no. Of particular interest was the applicant’s oral evidence in this regard where he stated that he was not much involved with [Organisation 1].
The applicant insisted at hearing that he had been conversing with others online about [Organisation 1] and its policies and activities and offered to provide evidence of such online activity and commentary to the Tribunal. The Tribunal requested the evidence be provided to it within a week of the hearing and notes that no such evidence has been provided up until the date of this decision over two months after the scheduled hearing.
The Tribunal accepts that the applicant had some very limited engagement with [Organisation 1] soon after arriving in Australia and finds that this limited support and association with [Organisation 1] would not give rise to him being harmed in Fiji. Again, given there are no claims or evidence supporting a claim that the applicant has had any significant involvement in the advancements, maintenance and protection of the rights of indigenous Fijians, the Tribunal finds that his brief involvement with [Organisation 1] would not result in a perception that he holds an imputed anti-government political opinion in that regard.
Opposition political party support – a shift of allegiance from SODELPA to PAP
At hearing, the applicant was unable to provide much detail in relation to his political support of SODELPA whilst living in Australia. He recalled that he had joined SODELPA (NSW) at some point after arriving in Australia and attended about four meetings. He could not recall whether he paid a membership fee when he joined that organisation and had no recollection of when he attended his last meeting with SODELPA (NSW). He stated that he had donated about $500 to that organisation but when pressed about whether he had evidence of such donations he stated that he thought he may have lost such receipts.
While the applicant exhorted at hearing that he would be harmed in Fiji by the army or the police because “we are the opposition party”, he was unable to elaborate further upon how his low-level participation in SODELPA and SDL over the years in both Fiji and Australia would give rise to him being harmed upon his return to Fiji.
Even taking into account the possibility that the applicant’s memory may have faded over the years in relation to his participation in SODELPA in Australia, the Tribunal finds that the applicant’s participation in the political activities of SODELPA (NSW) is particularly low-level and has not enabled him to garner a profile such that he would be at risk of being harmed in Fiji either on account of those activities or his membership of SODELPA (NSW).
The applicant also claimed at hearing that while in Australia he decided to support SODELPA no longer and instead shifted his political support to PAP. The Tribunal accepts that the applicant is an executive member of PSAP (NSW), an organisation that raises funds to support an opposition party, namely the PAP in Fiji. According to the applicant, while PAP (NSW) does not influence PAP policy, he has been assisting PAP by encouraging and supporting others to join PAP.
When the Tribunal explored with the applicant at hearing how his involvement in PAP (NSW) might give rise to harm upon his return to Fiji, the applicant could only provide a generalised response that he was supporting an opposition party. The Tribunal offered the applicant’s representative an opportunity to make an oral submission on this issue at hearing and was told that the violence, intimidation and the arbitrary nature of police violence in Fiji was the foundation of the applicant’s concern.
The Tribunal accepts that the applicant has had some engagement with PAP (NSW) but those fundraising and party recruitment activities are of a low-level political nature and do not influence the policy of PAP in Fiji. On this basis, the Tribunal finds that the applicant’s participation in PAP (NSW) would not give rise to a real chance of him being placed upon a watch list such that he would be detected at the airport upon his return to Fiji and thereafter harmed by the Fijian authorities.
Other anti-government political expression in Australia
The Tribunal notes the applicant claims to have engaged in a range of other political activity and expression in online fora, including on [Social media] pages and within private [Social media] and other chat groups, that would raise his profile as an anti-government activist or significant opposition party supporter.
The applicant claimed that he posted “anti-government” material in 2016 on a [Social media] page that was open to members of a particular [Social media] group whereby he shared information about Fijian soldiers who were tortured and killed. Despite having made this claim, the applicant has not provided any documentary evidence of these [Social media] posts Tribunal. However, when asked at hearing whether he had ever expressed anything online, he stated that he had never done so publicly. Therefore, the Tribunal sought to explore the nature of his private online political discussions and commentary.
The applicant stated that in the PAP private chat group, he had written various things which people within that group comment upon. The applicant was asked whether he could show those chat group conversations to the Tribunal on his mobile phone. The applicant agreed and after some inspection of the material during the hearing, the Tribunal observed that he had not posted anything in the chat group over the past month and that one of his recent posts was not political and that he had made no substantive comments on anyone else’s chat group posts. The Tribunal further observed that, at most, the chat group was a place where different chat group members simply shared articles about recent political and other events in Fiji and that these articles were already publicly available elsewhere. The Tribunal then indicated to the applicant that it was difficult to understand how any of the material within this private chat group, if it became available to the Fijian authorities, would give rise to him being harmed. The Tribunal then raised its concern with the applicant that there was nothing written by him or others within that chat group which, if revealed to the Fijian authorities, might cause him to be arrested or otherwise harmed if he were to return to Fiji. The applicant considered the Tribunal’s invitation to comment upon its concern for a lengthy period of time and made no comment. Moreover, following the hearing, the Tribunal has not received any further documentary evidence or argument addressing this concern.
Taking into account the low-level political nature of the applicant’s extremely limited chat group commentary, on the available evidence, the applicant has not developed any real profile as an anti-government activist or significant opposition party supporter such that he would face a real chance of harm upon his return to Fiji.
Overall findings in relation to the applicant’s political activities, expression and profile
Taking into account the accepted evidence in relation to the nature of the applicant’s political activities whilst living in Australia as described above, the Tribunal finds that the applicant has not garnered any profile as an anti-government political activist or opposition party supporter whilst living in Australia such that he would be of any interest to the authorities if he were to return to Fiji.
It is also worth noting that when asked at hearing whether he would express any political opinions or somehow be politically active if he returned to Fiji, the applicant clearly stated no.
On the available evidence, the Tribunal does not accept that the applicant holds a political opinion that motivates him to speak out or become engaged in Fijian political issues. In the Tribunal’s view, the applicant’s preference for Mr Rabuka as Fiji’s Prime Minister and his views on indigenous Fijian rights and the anti-military statements he made during his employment at the FCS, fall well short of such a political opinion.
The Tribunal also finds that the applicant was not perceived (by the FCS, the Fiji authorities more generally, or others) of having a political opinion opposed to the government. In reaching this conclusion, the Tribunal takes into account the incidents in or around 2001 and 2006, as assessed above.
Assessment: refugee criterion
The Tribunal now assesses whether, in light of the above findings, and having regard to other relevant factors – in particular country information on the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Fiji (for the reason of his political opinion actual or imputed or for any similar reason enumerated in s. 5J(1)).
The Tribunal has found above that the applicant has been a long serving FCS officer. It accepts that he disapproves of the current Fiji government, but is not satisfied that he has a political opinion that extends beyond that general view it accepts that he was involved in some incidents whilst working at the FCS but finds that he has exaggerated the degree to which his involvement in those incidents has been, or indeed would continue to be, of any interest to the Fijian authorities. The Tribunal finds that these incidents many have added towards his resolve to move to Australia but that the applicant did not flee persecution or significant harm. The Tribunal finds that he was not of adverse interest by the Fijian authorities at the time of his departure and does not accept that the Fijian authorities have developed any adverse interest in him, as a result of his support and association of PISAI, FNGIE, [Organisation 1] and opposition parties SODELPA and PAP.
The Tribunal asked the applicant about his future conduct if he were to return to Fiji. He stated that he would not express any political opinions or otherwise be politically active if he returned to Fiji, the applicant clearly stated no. He also stated that he was unsure whether, upon his return to Fiji, he would live in Suva or his village. On the limited available material, the Tribunal infers that the applicant would return to Suva, re-establish himself there and seek work commensurate with his qualifications and experience. On the available evidence, the Tribunal is not satisfied that there are any factors that would prevent the applicant from re-establishing himself in Fiji. The Tribunal is not satisfied that the applicant faces a real chance of being subject to serious harm – including the denial of a capacity to earn a livelihood of any kind where the denial threatens his capacity to subsist[7] – on his return to Fiji.
[7] To take one of the non-exhaustive instances of serious harm set out in s 5J(5) of the Act.
The Tribunal has had regard to a range of country information, including the DFAT Report which the applicant provided a full copy of to the Tribunal. At hearing, the Tribunal explained to the applicant that this report indicated that politics in Fiji today is no longer characterised by the unrest of the past. By way of example, the report specified that Transparency International had reported in November 2021 that only 4% of people received threats or inducements to vote in a certain way. While DFAT was aware of allegations of police harassing members of opposition parties, such incidents were likely the result of orders from senior people in police, military or government and the Public Order Act has been used to prevent opposition meetings, protests or even shot down debate. The report went on to state that these events have been directed at high-profile people within the opposition and DFAT understands that “rank and file and low-profile opposition party members would be much less likely to experience interference”.[8]
[8] DFAT Report, paras. 3.32, 3.36 and 3.38
100. Furthermore, a Department of Home Affairs report released on 28 February 2022[9] revealed that the Country of Origin Information Services Section found that senior (public-office seeking) members and leaders of opposition parties in Fiji are subject to low to moderate risk of mistreatment from the authorities.
[9] Department of Home Affairs, Common Claims – Fiji, Country of Origin Information Services Section (28 February 2022)
101. Another Department of Home Affairs report released on 23 March 2022[10] reveals that the Country of Origin Information Services Section did not locate any information on Fijian government mistreatment of:
[10] Department of Home Affairs, Standard Q & A Report, “Fiji-20220302123710 – SODELPA members overseas – Anti-Fijian government activists overseas – SODELPA (NSW)” (23 March 2022)
· SODELPA members active overseas who return to Fiji
· anti-government activists overseas who return to Fiji.
102. Based upon this information, the Tribunal raised its concern with the applicant at hearing that he had only ever been a rank and file member of an anti-government group or opposition party with little profile, if any, as a result of his political party membership and activities. Taking into account this information and his low-level profile, the Tribunal invited the applicant to address its concern that there was not a real chance of his facing any harm in Fiji.
103. The applicant insisted at hearing that the country information was incorrect and did not really represent the political situation in Fiji. Tribunal then clarified the country information further for the applicant to understand the nature of that information in order to allow them to meaningfully comment upon it. The applicant simply replied that he did not believe the country information particular as it related to DFAT’s reliance upon a Transparency International report. When pressed the applicant explained that Transparency International are not reporting about what was really happening in Fiji and that in the last few months four high-profile members of SODELPA had been arrested. The Tribunal then explained to the applicant that his response did not refute the contention posed by the country information such that the Fijian authorities were only interested in high-profile supporters and that based upon his activities he was not such a high-profile supporter. The applicant then pondered that further contention and simply replied that he was telling the truth.
104. Following the hearing the representative took issue with the country information raised at hearing on the basis that the DFAT Report was relevantly flawed because reference had been made to a Transparency International Report which was “presented on a hearsay” basis and the Tribunal had excluded proper consideration of the 4% of the Fijian population who had experienced political interference when voting. The Tribunal has considered this submission and notes that the representative has failed to address the relevant issue raised by the country information in relation to the contention that only high-level opposition party supporters and anti-government activities with a high profile are likely to face a real chance or serious or significant harm. The relevance of this issue was impressed upon the applicant and the representative at hearing. Accordingly, while the Tribunal makes no determination as to whether DFAT Report is flawed in terms of its usage of certain evidence to support the contention that elections are free and fair in Fiji, the Tribunal notes that the country information – insofar as it support the contention that only high-profile opposition party supporters and political activists are likely to face harm – remains undisturbed, is reliable and that the applicant and his representative have not properly addressed or assuaged the Tribunal’s concern.
105. Accordingly, the Tribunal finds that the applicant will not face a real chance of serious harm if he returns to Fiji on account of his low-level profile as anti-military or anti-government government activist or opposition party supporter. Similarly, there is no real chance of the applicant being subject to serious harm arising from discriminatory treatment from the Fijian authorities, including military personnel, due to his political opinion (actual or perceived), his past work as a FCS officer or for any other reason set out in s. 5J(1)(a).
106. Having regard to the above findings of fact, the Tribunal concludes that there is no real chance of the Fijian authorities developing an adverse interest in the applicant, arising from his anti-military activities prior to his departure from Fiji and/or his political activities and expression both in Fiji and Australia.
107. The Tribunal is mindful that the applicant’s representative has stressed that it is the cumulative effect of the applicant circumstances that give rise to a real chance of persecution, or a real risk of significant harm. However, even on this basis the Tribunal finds that there is no real chance of him being subject to serious harm amounting to persecution, for any of the reasons set out in s. 5J(1).
108. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerate it in s. 5J(1), now or in the reasonably foreseeable future, if he returns to Fiji.
109. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(a).
Assessment: complementary protection
110. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
111. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about general and political conditions in Fiji. It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him (such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment). It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Fiji.
112. Accordingly, 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: s. 36(2)(aa).
CONCLUSION
113. 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).
114. Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion in s. 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s. 36(2) on the basis of being a member of the same family unit as a person who satisfies s. 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s. 36(2).
decision
116. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Papadopoulos
MemberAttachment A – Summary of the relevant law, mandatory considerations and an extract of key provisions of the Migration Act 1958
The relevant law
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted below.
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract of key provisions of the 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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Appeal
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