1711063 (Refugee)

[2018] AATA 4146

1711063 (Refugee) [2018] AATA 4146 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711063

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Mila Foster

DATE:22 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 October 2018 at 10:33am

CATCHWORDS
REFUGEE – Protection visa –Fiji – political opinion – fears he will be attacked by the regime for assisting a political group – passed messages to the group’s family whilst in jail – assaulted by the military – credibility issues – incorrect answers provided on application form – failure to disclose criminal record in Fiji – false information about siblings – remained as an unlawful citizen after previous bridging visa was cancelled – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 424A, 438, 499
Migration Regulations 1994 (Cth) Schedule 2


CASES
SZMTA v MIBP [2017] FCA 1055
SZTYV v MIBP [2018] FCA 1076

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 on 27 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Fiji, applied for the visa on 28 February 2017. The delegate refused to grant the visa on the basis that he was neither a refugee nor owed complementary protection.

   Criteria for a protection visa

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

4. 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.

5. 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).

6. 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.

7. 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).

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT produced such a report in relation to Fiji on 27 September 2017.

   BACKGROUND INFORMATION

9. The following background information provides context to the applicant’s claims:

   a.    The applicant arrived in Australia on 2 December 2016 on a visitor which was due to cease on 2 March 2017.

   b.    On 2 March 2017 the applicant was granted a Bridging visa A after lodging his protection visa application in February 2017.

   c.    On 11 August 2017 the applicant’s Bridging visa A was cancelled due to his failure to disclose his criminal convictions in Fiji on his visitor visa application and incoming passenger card. The applicant did not seek review of the decision to cancel his Bridging visa A and hence became an unlawful non-citizen.

   d.    On 18 July 2018 the applicant was placed in immigration detention.

   e.    On 30 July 2018 the applicant applied for a Bridging visa E. He was refused the visa on 1 August 2018.

   f.   On 3 August 2018 the applicant applied to the Tribunal for review of the decision to refuse him a Bridging visa E.[1]

   g.    On 20 August 2018 the Tribunal, differently constituted, affirmed the decision not to grant the applicant a Bridging visa E.

   [1] Unless specifically indicated, references in this decision to the review or the hearing are references to the review and hearing conducted in relation to the application for review of the decision to refuse the applicant a protection visa rather than the Bridging visa E refusal and review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the applicant’s credibility. For reasons I give further below after outlining the claims and evidence, I find that the applicant was not a credible witness and that the decision under review should be affirmed.

    Protection visa application

11. I have before me the Department of Home Affairs (formerly the Department of Immigration and Border Protection) file relating to the applicant’s protection visa application.

12. According to the application, the applicant received the assistance of a migration agent to complete the protection visa application form. According to information provided on the form, the applicant is [an age] year old Fijian national who has not been known by any name other than [Name 1]. He departed Fiji on a Fijian passport issued on [date] 2016 which was obtained legally. He entered Australia[2] as a visitor. He was a Christian. He had never been married or in a de facto relationship, and his family members consisted of his deceased parents, a brother who resided in Australia and a son who was an Australian citizen. He completed high school in Fiji in November [year], and could speak, read and write Fijian and English. In the preceding 30 years he had resided at two addresses in Fiji – one in [Town 1], where he lived from December 1996 until December 2012, and the other in [Town 2], from December 2012 until December 2016. He was [an occupation] prior to arriving in Australia but provided no employment details. In reply to questions on the protection visa application form about any convictions, charges, investigations or crimes committed, the applicant stated that he had not been found guilty or convicted of a crime or offence in any country.

    [2] See SZMTA v MIBP [2017] FCA 1055 (White J, 5 September 2017) at [52]-[54].

13. In response to questions 89 to 96 of the protection visa application concerning his reasons for seeking protection, the applicant stated that he left Fiji to attend the wedding of his son and only child. He gave three reasons for not wishing to return to Fiji: the political upheaval between the government and landowners; he had nowhere to live after Hurricane Wilson destroyed his home; and he had no next of kin in Fiji. The applicant claimed he was beaten by the army in Fiji and his [bone] was broken because he was [connected to the] former Prime Minister Qarase, and he often assisted and accompanied Mr Qarase during political campaigns. He feared his support for the SDL Party and Mr Qarase would attract attention from the authorities including the army if he returned to Fiji.

14. His protection visa application included news articles said to support his claims, a photocopy of pages of his passport, his birth certificate, and a letter from his migration agent.

15. According to the delegate’s decision,[3] the applicant did not attend the protection visa interview he was invited to by the delegate, he had five aliases and an extensive criminal history in Fiji.

    [3] A copy of which is on the Department file and was provided to the Tribunal on review.

    Information subject to purported s.438 notification

16. Under s.438 of the Act the Minister (or delegate) may place restrictions on documents or information given to the Tribunal by the Department by notifying the Tribunal that it was given in confidence to the Department. If the material is covered by s.438 the Tribunal may, if it thinks appropriate, disclose the material to the applicant or another person: s.438(3)(b).

17. For documents or information to have been given in confidence, the material needs to have been given to the Minister or an officer of the Department by an external source or third party with the expectation that the material would be treated as confidential and would not be disclosed. The information must also have the necessary quality of confidentiality (for example, not be public knowledge and the consequences of it being released may have a detrimental effect on an individual).[4]

    [4] See SZTYV v MIBP [2018] FCA 1076 (Steward J, 20 July 2018) at [42].

18. The Department file contains a letter dated 27 April 2017 from a delegate of the Minister notifying the Tribunal that s.438(1)(b) of the Act applies to information in seven folios on the Department file relating to the applicant’s protection visa application and should not be disclosed to the applicant because it was given to an officer of the Department in confidence. Two of the folios are copies of emails sent between officers of the Department. The remaining five folios disclose the applicant’s criminal record in Fiji.

19. I find that the email communications between the Departmental officers in this case were not ‘given’ to the Minister or an officer of the Department in confidence nor is there evidence before me that the emails contain information from third parties which was given in confidence.[5] In relation to the document referred to in the remaining folios of the notification, there is nothing on the Department file or any other information before me to indicate how or from whom the Department obtained or received the document, or whether it was given to the Department in confidence. I note that each page of the document is stamped with a ‘confidential’ stamp however there is nothing before me to indicate who stamped the document – a person who gave the document to the Department or by the Department when the document came into the Department’s possession. In the absence of any information about how the Department came into the possession of the document, the confidential stamps alone do not satisfy me that the document containing the applicant’s criminal record was given in confidence to the Minister or an officer of the Department. I thus find that material in the folios referred to in the notification do not have the necessary quality of confidence.

    [5] See SZMTA v MIBP [2017] FCA 1055 (White J, 5 September 2017) at [52]-[54].

20. I therefore find that the letter of 27 April 2017 was not a proper notification under s.438(1)(b) of the Act and thus I am not prevented from disclosing relevant information contained in the folios to the applicant.

21. On review the applicant disclosed that he had an extensive criminal record in Fiji and that he had spent a significant period of time in prison shortly before he departed Fiji. That information was relevant to and supported the new claims he made on review. I thus referred to the applicant’s criminal record at hearing to the extent that it was relevant but there was nothing in the email communications between the Departmental officers which were relevant and thus this information has not been disclosed to the applicant.

    Review application

22. The applicant’s review application consists of a copy of the delegate’s decision record but no additional claims or evidence.

    Letters of support

23. On 10 August 2018, the Tribunal received letters of support for the applicant from the applicant’s daughter-in-law, his daughter-in-law’s father, the elder of a church the applicant has attended in Australia, and the chairman of a Fijian community organisation in Australia of which the applicant was a member.

24. It was not apparent at the time of receipt of those letters whether they had been submitted in support of the applicant’s application for review of the decision to refuse to grant him a Bridging visa E or his application for review of the protection visa refusal. The Tribunal sought clarification from the applicant’s migration agent but his response was not definitive. At a hearing on 13 September 2018 the applicant advised me that he wanted me to consider those letters in relation to this review.

    Pre-hearing evidence

25. On 6 September 2018, the Tribunal received a number of documents from the applicant including a written statement, a written submission from his migration agent, [reports] regarding the arrest in Fiji in 2015 of people charged with sedition, documents about 11 individuals calling themselves the 11-11 Group claiming they were political prisoners who had been illegally detained in Fiji in November 2007, copies of posts on the Fiji Corrections Service website and [news] reports regarding the applicant’s participation in a prison rehabilitation program in Fiji called [Program 1]. It was submitted that the applicant was pictured in the Fijian Corrections Service material and identified as [Name 2].

    Migration agent’s submission

26. The migration agent’s  written submission included the following information and statements:

    a.    The claims made by the applicant in his protection visa application were not accurate; they were put forward by the applicant because he did not want his family and other Fijians in Australia to become aware of his problems with the military in Fiji.

    b.    The applicant decided to remain in Australia after his bridging visa was cancelled because he feared returning to Fiji.

    c.    Even though the applicant does not regard himself as a political opponent, there is a real chance that he would be persecuted by the military if he returns to Fiji because the military and government agents regard him as a  sympathiser and associate of political opponents who have planned to assassinate the prime minister and overthrow the government.

    Applicant’s written statement

27. In his written statement dated 5 September 2018 the applicant made a new set of claims for protection. The applicant stated:

    a.    He has an extensive criminal record.

    b.    In about July 2005 he was convicted of a number of offences and was sentenced to [several] years’ imprisonment.

    c.    From 2006 until 2016 he participated in a rehabilitation program called [Program 1] during which he developed his skills [in a certain area and participated in events] organised by the Fiji Corrections Service. He also turned to his faith. 

    d.    While serving his sentence he assisted a group of 11 inmates called the 11-11 Group. They had been detained on the suspicion that they were intending to assassinate [a political official] and overthrow the regime. The men were not allowed to see their family members. As a Christian he felt the way those men were treated was wrong. He assisted the men by getting messages to their families about their wellbeing and the allegations against them. He also felt obliged to assist because some of the men were from his village.

    e.    One night military personnel entered his prison cell, woke him up and beat him. His [bone] was broken and as a result he still [had symptoms]. He was told to stop doing what he was doing to help the men and warned the military would be watching him.

    f.   As a result of the beating and the military’s warning he feared for his safety – if the military could enter prison and beat him they could do anything when he was released.

    g.    He maintained a low profile when he was released from prison. He did not go out and made arrangements to leave Fiji. He considered himself a dead man walking. He believed he would be killed by the regime/military for assisting the 11-11-Group.

    h.    While he was in hiding the military visited his sister’s home looking for him.

    i.   He failed to disclose his extensive criminal record when he applied for the visitor visa in 2016 because he was desperate to leave Fiji. He believed he would not be granted the visa if he disclosed his criminal record and would have been killed.

    j.   Since he has been in Australia the military has attended his sister’s home asking for him.

    k.     He did not raise the above matters (in his protection visa application) because he did not know who to trust.

    l.   He did not respond to the (Department’s) notice of possible cancellation of his Bridging visa A due to his fear and anxiety that he would be returned to Fiji.

    m.   He requests that he be granted protection so that he can live in Australia with his only child and family. He fears that he would be significantly beaten for the support he provided to the 11-11 Group if he returned to Fiji or killed by military personnel or persons acting on behalf of the military.

    Tribunal hearing

28. The applicant gave evidence at a hearing before me on 13 September 2018. His migration agent also attended the hearing and made oral submissions on the applicant’s behalf at the end of the hearing. In addition to giving oral evidence the applicant produced medical records regarding his [injury] as evidence of his claim that the military broke his [bone]. The following is a summary of some of the applicant’s testimony and his migration agent’s oral submissions. I refer to other testimony the applicant gave in my findings further below.

    Department’s notification

29. At the hearing I informed the applicant about the notification regarding his criminal record and invited him to give evidence about its validity. The applicant asked his migration agent to address the issue. His migration agent stated that the applicant’s criminal record was well known and thus the notification was unnecessary. Invited to given evidence about his criminal record, the applicant stated that his record was more than 10 years ago; he learned his lesson in prison, and wanted to forget his record and start a new life. 

    The applicant’s protection visa application

30. I noted that the documents the applicant had provided on review indicated that he had provide false information in his protection visa application and thus I wanted the applicant to clarify what information was correct and what was incorrect.

31. The applicant testified that contrary to what he had stated in his protection visa application, he had also been known by the name on his criminal record and the name he had been given at birth, [Name 2]. He said he had not used any other names. I questioned the applicant about his two names. His explanation was not straightforward but essentially he indicated that his name was changed from [Name 2] to [Name 1] because he was a sickly child and his family believed his birth name was making him sick. He said he realised his name was changed when he was about to start school and saw his birth certificate. He stated that in his ordinary day to day life he identifies himself as and uses [Name 2]; only his school teachers called him [Name 1] and he only uses [Name 1] when he has to use his birth certificate. The applicant said he did not provide correct information about his names in his protection visa application because he was afraid he would be returned to Fiji and he ran away in fear of his life.  

1. The applicant stated that the birth certificate included in his protection visa application was a genuine document.

2. The applicant said that it was true, as stated in his protection visa application, that he had been a Fijian national since birth, and he had never been married or in a de facto relationship. He said he had not married or entered a de facto relationship in Australia.

3. I noted that the protection visa application asked for information about the applicant’s family in Australia and overseas, and that he had provided details about his parents who were deceased and a brother residing in Australia. Asked if that was the extent of his family and if the information was true, he replied that it was. I noted that he referred to a son in Australia in the application and asked whether he had any other children or siblings anywhere; the applicant replied that he did not. I subsequently asked the applicant to confirm whether it was correct that his only family members were his brother and son, both of whom were in Australia. He indicated that was correct and added that he also had relatives of his father in Australia.

4. The applicant stated that his passport was a genuine document and confirmed that he left Fiji legally.

5. He stated that he had lived at the two residential addresses provided in his protection visa application but the dates were not correct. He stated that he lived in [Town 1] from birth until 1975 when he went to [another location] to attend high school. There he lived at the [Town 2] address provided in the protection visa application. Asked who he lived with there, the applicant testified that he lived with his [sister] at the [Town 2] address and continued to live with her at that address throughout his adult life (except, I presumed, the periods he spent in prison). The applicant stated that his sister continued to live at the [Town 2] address. I questioned the applicant about his failure to mention his sister earlier when asked about his family. I elaborate about this further in my credibility finding below.

6. The applicant confirmed that he had completed a year 12 level of education in Fiji and that he was [an occupation] in Fiji. Questioned about his [work] he indicated that he worked [near] his sister’s residence and also worked [in another area] when labourers were needed.

7. The applicant confirmed that he had been convicted of crimes, and thus it was incorrect that he had no convictions and had not committed any crimes.

8. I asked the applicant about the truthfulness of the answers he had given to questions 89 to 96 on the protection visa application form concerning his reasons for seeking protection. The applicant testified that his response to question 89, that is, that he left Fiji to attend his son’s wedding, was true. He testified that the reasons he gave in response to question 90 for not wanting to return to Fiji were not true. He testified that his response to question 91 in relation to past harm he had experienced in Fiji was not true, except that he was harmed by the army in Fiji in prison. The applicant testified that his answer to question 94 about why he would be harmed or mistreated if he returned to Fiji was not true. The applicant testified that while his former home in [Town 1] was destroyed by Hurricane Winston, and he did not have a home to return to, it was not true that he did not move within Fiji for that reason. He testified that while it was true the Fijian authorities would not protect him if he returned; the answers he otherwise gave in response to questions 92, 93, 95 and 96 about protection in Fiji and relocation within Fiji were not true.

   Testimony regarding new claims

9. In relation to the new claim the applicant made on review that he assisted members of the 11-11 Group while he was in prison, I noted that the applicant had stated that the 11-11 Group members were detained on suspicion of attempting to the assassinate the (then) interim prime minister (Frank Bainimarama) and overthrow the regime. Asked whether the men were charged, the applicant testified that they were charged, imprisoned and convicted. He said he was in the same prison with them, the Naboro maximum security prison, from 2006 onwards.

10. Asked over what period of time he assisted the group, the applicant responded that he helped the members of the 11-11 Group from about 2006 onwards when they were remanded in prison. He said some of them were his relatives and they knew each other from the village and so he helped them by taking information to their families as they were not allowed visitors. He testified that his participation in [Program 1] included being permitted to go to [Town 2] to [participate in activities]. He said he would pass on information to the families of all 11 members of the 11-11 Group when he went to [Town 2] to [participate in activities]. I sought to clarify over what period of time the applicant assisted the 11-11 Group. He responded that it was about 2006 and 2007. He said that after that he was beaten and warned, so he stopped passing on messages. Asked when he stopped, the applicant replied that it was around 2007, then that it was 2008. 

11. I questioned why the military would be interested in the applicant 10 years after he stopped assisting the 11-11 Group. The applicant replied that they may have information about him passing on messages. I put to the applicant that he had indicated that the military suspected him of doing so and that was why they beat him but he had stopped and he had not been harmed since then. I questioned why then the applicant left Fiji and feared returning. The applicant responded that they warned him that they would get him when he got outside and when he got home his sister told him the army was looking for him and his sister told him that they had come even since he had come to Australia. I questioned the applicant further about why the military would have any adverse interest in him 10 years after he assisted the 11-11 Group, why the military would wait until he got out of gaol to harm him when they had come into gaol to beat him and he had testified that 11-11 Group members have already been convicted. The applicant’s response was not clear. He mentioned that most of the men were soldiers, and there may have been evidence (perhaps in the messages he passed on to family members) against the government. He mentioned elections and the SODELPA party.

12. I asked the applicant how it was that the military did not find him given he was living at his sister’s house. He replied that he was hiding. I asked where he was hiding given he had testified earlier that he had lived at just two addresses in Fiji and the last address was his sister’s address. The applicant responded that he did not stay home most of the time because they were looking of him. Asked where he went, the applicant replied that he went to town and slept at motels.

13. Asked the names of the members of the 11-11 Group, the applicant’s migration agent referred me to the document the applicant submitted to the Tribunal before the hearing. The document appeared to have been prepared by the 11-11 Group and listed their full names. The applicant testified that the document was given to him in Fiji after he was released from prison. Asked which members of the group were from his village the applicant referred to [Mr A], his [relative]. Asked [Mr A]’s surname the applicant replied that he was a [certain] [relative]. Asked whether he could recall [Mr A]’s surname the applicant replied that he could not. I questioned why the applicant could not recall the name of a person he claimed was a [relative] from his village, a person he was in prison with and for whom he passed on messages to family members. The applicant responded that they did not stay together most of the time, he only knew him when he was small and then he saw him in prison.

14. I noted to the applicant that according to his written statement some of the members of the 11-11 Group were from his village. I thus questioned which of the others were from his village. The applicant replied that he thought it was just [Mr A], he knew some but they were not from his village. Asked how he knew them, the applicant responded that he knew some of them from the outside. Asked how he came to know them on the outside, the applicant said that Fiji is a small place. Asked which ones he knew from the outside, the applicant replied that he thought most were Fijian chiefs. 

15. I asked the applicant to estimate how many times he passed on information to the families of the 11-11 Group members – for example, whether it was about 10, 20, 50 or hundreds of times. The applicant responded that it was most of the time that he went out to [participate in activities]. I questioned how the family members came to be there so he could pass on messages from the 11-11 Group. The applicant replied that he did not know, they just came. Later in the hearing, following a short adjournment, the applicant explained the 11-11 Group members were separated from other prisoners (his migration agent said they were in solitary confinement) but prisoners working in [a prison area] would have contact with the 11-11 Group. The prisoners who had contact with the 11-11 Group members got information from the members of the group which they passed on to the applicant to pass on to the families of the 11-11 Group when he went outside the prison. The prisoners who had contact with the 11-11 Group would have visitors and they would tell their visitors to tell the families of the 11-11 Group when and where they could meet the applicant to receive the messages from the 11-11 Group.

16. I questioned how, as a maximum security prisoner, the applicant was able to pass on messages to the families as it would seem he would have been closely monitored by the prison authorities when he was outside the prison. The applicant stated that he was in medium security section of the prison at the time and he passed on the messages when the family members came to buy products.

17. The applicant testified that after he was suspected of passing messages to family members of the 11-11 Group he was put back in the maximum security section of the prison. Also, he said, he should have been paid for his work on [Program 1] once he was released from prison but he was not as a punishment of passing on the messages.

18. The applicant testified that he was released from prison in November 2016. He confirmed that he applied for and obtained his passport while in gaol. He said he believed he was able to obtain his passport even though the military was interested in him because they only knew him by his birth name. He said the prison authorities did not know his other name, [Name 1].

    Credibility

19. At the end of the hearing I put information I had about [Program 1], as well as information from a record of the Australian Border Force interview held with the applicant when he was located on 18 July 2018, a Department detention interview conducted with the applicant on 19 July 2018 as well as issues with his claims and evidence which raised concerns about the truthfulness of his testimony and his credibility. I refer to that further in my findings below.

    Migration agent’s oral submission

20. In his oral submission at the end of the hearing the applicant’s migration agent noted that the applicant’s criminal record indicated that he first went to prison in 1979 and was last sentenced to prison in 2006 after which he spent 10 years in gaol. The migration agent submitted that spending such a vast amount of time in prison is likely to change a person’s perceptions, make them untrusting and institutionalised. He submitted that these matters as well as the applicant’s withdrawn demeanour and character may not have assisted him during his interviews and at the hearing, and may have caused him to not appear credible. And it was submitted that the applicant’s trust issue, past experiences and his time in prison also led him to submit an inaccurate protection visa application. The migration agent also indicated that who may be regarded as family or immediate family can be subjective.

21. The migration agent noted that the applicant had obtained his passport in [date]2016 and applied for a visitor visa in December 2016 which showed an intention to leave Fiji, consistent with his claimed fear of being targeted by the military on his release from prison and led him to provide false information in his visitor visa application.

    Post hearing adverse information invitation

22. Section 424A of the Act imposes a statutory obligation on the Tribunal to invite an applicant to comment on or respond to certain adverse information. Information that is inherently neutral or merely assists the Tribunal to assess an applicant’s credibility does not fall within s.424A. However, information which contains a rejection, denial or inherently undermines an applicant’s claims may be subject to the section. The obligation in s.424A can be discharged orally at the hearing or in writing.

23. On 28 September 2018 the applicant was sent an invitation pursuant to s.424A to comment on or respond to certain adverse information by 5 October 2018. The information was information the applicant had provided during his interview with the Department on 19 July 2018 that he had no family in Fiji, which was inconsistent with his claim that the military had visited his sister in Fiji asking about him as well as new reports that the 11 men the applicant had identified as being members of the 11-11 Group were only in prison for 40 days in November and December 2007, which was inconsistent with the applicant’s testimony that he assisted the men in 2006 and 2007 until he stopped in 2008.

24. No response to the invitation has been received.

    Applicant’s names

25. The evidence before me indicates that the applicant has been known by or used a number of names including [Name 1] and [Name 2]. The birth certificate and passport he presented in his protection visa application identify him as [Name 1]. Information about his criminal record and the articles supplied by the applicant on review identify him as [Name 2]. I thus accept that the applicant has been known by and used the names [Name 1] and [Name 2]. It is not necessary and I make no finding about why he had used two names.

    Country of reference finding

26. The applicant has consistently claimed that he is a national of Fiji.  There is no evidence before me to suggest that he is a national of any country other than Fiji. I thus find that the applicant is a national of Fiji and that Fiji is therefore the country of reference for the purpose of assessing his claims for protection. 

    Finding on the applicant’s credibility

27. The applicant’s credibility is undermined by the fact that he provided false claims and information about his criminal record in his protection visa application and that when his Bridging visa A was cancelled, rather than seek review of that decision he chose to become an unlawful non-citizen. Even if I give the applicant the benefit of the doubt and accept that he did this because he feared he would be returned to Fiji due to his criminal record and did not feel he could trust anyone, there are significant flaws in his testimony which lead me to not find that he was not a credible witness and that the evidence he has given about his new claims is not true.

28. The applicant stated in the written statement he submitted before the hearing that he participated in [Program 1] from 2006 and that it was through his participation in that program that he was able to leave the prison and thus assist the members of the 11-11 Group by passing messages to their family members. The testimony the applicant initially gave about that new claim was consistent with his written statement. He testified that the 11-11 Group members were in the same prison as him from 2006 and that he helped them by passing on information to their families from about 2006 onwards until he stopped in 2008 after being beaten by the military. His testimony indicated that it was through [Program 1] that he joined in 2006 that he was able to go outside the prison and pass on information to the families of the 11-11 Group. However, those claims and his testimony are inconsistent with information I found in sources that the [Program 1] started in Fiji in 2008.[6] When I put that information to the applicant and after some questioning to try to elicit a clear response from him, the applicant stated that he had begun leaving the prison to sell his work before [Program 1] started in 2008. The applicant had given no indication in either his written statement or his preceding testimony that he had been permitted to the leave the prison to sell his work prior to his participation in the [Program 1]. His written and oral evidence had indicated that it was his participation in that program that enabled him to leave the prison and thus pass on information to the families of the 11-11 Group. Not only does the information I found about the [Program 1] undermine the applicant’s written claims and initial testimony, it appeared to me that the applicant invented the evidence that he left the prison before he joined the [Program 1] to overcome the adverse information. 

    [6] [Source deleted].  

29. The applicant stated in his written statement that one of the reasons he assisted the members of the 11-11 Group was that some of the men were from his village and so he felt obliged to do so. In his initial testimony he confirmed that he knew some of them from his village. Yet when I asked the applicant to identify the men who were from his village he was only able to identify one, who he said was a [relative], and even then only provided a first name. Questioned further to ascertain which other 11-11 Group members were from the applicant’s village, he seemed intentionally evasive and stated that he knew some that were not from his village. And when asked about the men he knew outside that were not from his village he seemed intentionally vague – simply indicating he knew them from Fiji and that he thought most of them were Fijian chiefs. Even if the applicant had not seen his [relative] since he was small and, as he subsequently appeared to indicate, he had little or no direct contact with members of the 11-11 Group in prison - I expect the applicant would have been be able to provide his [relative]’s full name and identify the others he had known outside prison if it was true that for a period spanning from about 2006 until 2008 the applicant passed on messages for the members of the 11-11 Group which included a [relative] from his village and others he knew from his village and elsewhere outside the prison.

30. The applicant testified that he assisted the 11-11 Group from about 2006, in 2007, until the military came into the prison to beat him and warn him to stop helping the group. That, however, is inconsistent with the information in sources I located which indicate that during that period of time the men identified as members of the 11-11 Group in the document submitted by the applicant were only in prison for about 40 days during November and December 2007.[7] The applicant was invited to comment on or respond to that information in the s.424A invitation sent after the hearing but had not done so. That information seriously undermines the credibility of the applicant and his claims.

    [7] The Sydney Morning Herald, ‘Accused Fiji plotters denied bail’, 8 November 2007, BBC News, ‘Fiji ‘coup plotters’ free on bail, 19 December 2007,  RNZ (Radio New Zealand), ‘Fiji drops charges against solider allegedly involved in assassination plot’, 1 March 2008, Fiji Sun online,‘Baledrokadroka Celebrates His Freedom’, 27 December 2008, RNZ, ‘Eight found guilty of plot to kill Bainimarama’, 4 March 2010, RNZ, ‘Eight jailed over plot to kill Fiji leader’, 5 March 2010,

1. The applicant claimed in his written statement that after he was released from prison the military came to his sister’s house in Fiji asking for him and had done so again while he was in Australia. However, when I asked the applicant at the beginning of the hearing whether the information he had provided in his protection visa application about his family in Australia and overseas (that his parents were deceased and that he had a brother and son in Australia) was correct, the applicant replied that it was. In light of the claim that his sister had been visited by the military, I asked the applicant whether he had any other children or siblings anywhere – he replied that he did not. It was only when I subsequently questioned the applicant about where he lived in Fiji that he referred to [a] sister, claiming that he lived with her when he moved to [Town 2] to attend high school. When I questioned why he had not mentioned his sister earlier in the hearing when I had asked about his family in Australia and overseas, the applicant’s initial response was that he had mentioned her in his bridging visa, which did not address why he had not mentioned her at the hearing. Asked again why he had not mentioned her earlier in the hearing when I had asked about the accuracy of the information in his protection visa application about his family, the applicant then said that he thought I was asking about Australia. I spent considerable time going through the questions and answers the applicant had provided in his protection visa application to determine what was accurate and what was not. I specifically asked whether, apart from his brother and son, he had any children or siblings anywhere and he replied that he did not. I thus expect that if the applicant had a sister in Fiji who had been visited by the military because of him that he would have mentioned her at that point. Instead he only mentioned here when I asked him about his residential addresses in Fiji. It appeared that this latter line of questioning prompted the applicant to recall his written claim that his sister was visited by the military. Further, as I put to the applicant in the s.424A invitation, in July 2018 he told the Department he had no immediate family overseas and no family in Fiji. That information undermines the claim he made about two months later on review that the military visited his sister in Fiji and his credibility generally.

2. In assessing the applicant’s credibility I have had regard to the oral submission made by his migration agent at the hearing. However, I do not accept that the above issues with the credibility of the applicant and his claims can be explained by the applicant’s lack of trust in others, his withdrawn demeanour or institutionalisation. Further, while I accept that the meaning of family or immediate family may be subjective or subject to cultural influence, I gave that no weight in my assessment of the applicant’s evidence about his sister, given the significance of him having a sister to his claims and given I specifically asked him whether he had any siblings other than his brother anywhere.

3. I have considered the medical records the applicant presented at the hearing regarding [an injury]. However, they are not contemporaneous evidence of injury to his [body] nor can they indicate how he sustained any injury to [himself]. I thus give them no weight. 

4. I have had regard to the letters of support from people who have had contact with the applicant in Australia. Those letters do not support the claims the applicant has made on review. They go to his character. However, the fact the applicant has behaved towards members of his family and the Fijian community in Australia in a way which has given them a good impression of his character does not indicate to me that the claims and evidence he has presented on review are true. The letters do not overcome the above issues with the credibility of the applicant and his claims.  

5. I have also had regard to the documents the applicant presented on review which seem to be copies of documents written by members of the 11-11 Group. The mere fact the applicant has obtained those documents does not indicate to me that his claims are true nor do they overcome the abovementioned serious issues with his credibility.

   Findings questions of fact relating to protection claims

6. As indicated above the applicant resiled from the protection claims he made in his protection visa application. While he said his home and village was destroyed by a hurricane he testified that was not a reason that he did not wish to return to Fiji. He stated that he was harmed by the military in Fiji but not for the reasons given in his protection visa application. Instead he seeks to rely on the new claims he made on review.

7. In light of the applicant’s general lack of credibility and the flaws in his evidence about the [Program 1], when he assisted the 11-11 Group and who the members of the 11-11 Group were and whether he has a sister in Fiji, I do not accept that he assisted any member of the 11-11 Group in any way while he was prison in Fiji, that he was suspected of assisting the 11-11 Group in any way by the military or that the military has visited a sister in Fiji asking about him since he was released from prison.  I thus do not accept that the applicant was beaten or warned in prison by the military for assisting the 11-11 Group or that he was not paid for his work in the [Program 1] as a punishment for helping the 11-11 Group. I therefore do not accept that the applicant would be perceived to be a supporter, sympathiser or associate of political opponents of the government or prime minister of Fiji.

   Findings on protection visa criteria

8. Having rejected the applicant’s protection claims I find that the applicant is of no adverse interest to the military, government, authorities or anyone else in Fiji for the reasons he has claimed. I therefore find there is not a real chance that the applicant would persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (actual or imputed) if he returns to Fiji. The applicant thus does not have a well-founded fear within the meaning of s.5J and is not a refugee as defined in s.5H(1). Consequently I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). However, as I have rejected the protection claims of the applicant and found that he is of no adverse interest to the military, government, authorities or anyone else in Fiji for the reasons he has claimed, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A). I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

    DECISION

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

    Mila Foster
    Member