1711563 (Refugee)

1711563 (Refugee) [2019] AATA 1874 (17 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711563
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Christine Cody
DATE:17 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 February 2019 at 9:49am

CATCHWORDS
REFUGEE – protection visa – Fji – Federal Circuit Court found no jurisdictional error – Full Federal Court found failure to exercise jurisdiction – social group – homosexuals – non-acceptance – assaults – discrimination by employers – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 36, 65, 424A, 499
Migration Regulations 1994 Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155 424A
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
SUMMARY

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claimed to be a citizen of Fiji and applied for the visa on 3 March 2014 and the delegate refused to grant the visa on 23 July 2014. The applicant lodged an application for review, which was unsuccessful before the Tribunal differently constituted (hereafter referred to as the first Tribunal). The applicant lodged an application for judicial review to the Federal Circuit Court and the first Tribunal’s decision was upheld; however on appeal to the Full Federal Court this case was remitted to the current Tribunal.
The applicant was represented in relation to the review before the first Tribunal, at court, and in the current Tribunal, by his registered migration [agent].
The Tribunal has before it the Department of Immigration and Border Protection’s file, the first Tribunal file, the decisions of the Federal Circuit Court and Full Federal Court, and the current Tribunal file.
The Departmental file
The Departmental file contains documents including the applicant’s protection visa application forms, his personal particulars (Form 80 claim), his first statement dated 28 February 2014, his second statement dated 15 July 2014 (expanding upon the first), his birth certificate showing that he has [brothers], and some pages from his passport issued [2013], as well as photos of the applicant at [a LGBTI event] and country information. The documents he provided showed that:
·     The applicant was born on [date] in [Village 1], [Fiji].
·     From 1992 until September 2011, he resided in the village ([named]). From September 2011 until March 2012 he resided in [Town 1], and he then moved to Suva until December 2013.
·     He was educated [until] high school, from which he withdrew.
·     He has not undertaken any paid work.
·     His father passed away in 2010. He has a brother [born] in [year] and [another brother] born in [year].
·     He has never been married or in a de facto relationship.
·     His ethnicity is Fijian, and his religion is Methodist.
·     He arrived in Australia [in] December 2013.
The applicant’s migration history is as follows:[1]
[1] As set out in the delegate’s decision record
·     He applied for a [temporary visa] on 18 September 2013.
·     On 25 September 2013 that visa was granted.
·     [In] December 2013 the applicant arrived in Australia (with his visa then in effect until 4 March 2014).
·     On 3 March 2014 he lodged his protection visa application.
The applicant claimed to have been denied employment and subjected to verbal assault and physical harm by his family, the community and the Fijian authorities because of his sexuality, and to have been detained by the police due to his sexuality. In his first statement the applicant listed nine separate incidents and said there were more (13 were listed in the second statement). The two incidents involving the authorities were: one incident [in] January 2013 outside [Venue 1]’s nightclub[2] where he was chased and beaten by military and police, the second [in] July 2013 at [Venue 2], a nightclub, where he was beaten. The other incidents involved humiliation and beatings and fights from/with relatives and others; he tried to kill himself in March 2012 and jumped from a third story building after being beaten by a neighbor in April 2013.
[2] Also referred to as [name]
The two nightclub incidents were expanded upon in the applicant’s second statement. In respect of the [Venue 1]’s incident [in] January 2013 the second statement provides that:
(19) On Friday [date]/01/13 we were drinking at home and after 10 pm we went to [Venue 1]’s night club which is in Suva [City]. There were three of us; myself[and] my gay friends.
(20) We were drinking inside the bar with other friends and their partners. After [a certain time] we three came outside and we were laughing and enjoying. The Police who were patrolling shouted at us “You Qauri, shameless bastards, go home. I said it is none of your business. They got off and chased us and caught us. They asked us to kneel down. They said to each of us say “I am a shameless Quari and I ask for mercy for my bad behaviour”. When I refused to say that they slapped me so hard that my ears started ringing and they told me I will have to kneel down till the morning if I don’t say that. I had no choice but to say that. Then they shouted at us runaway you silly Quaris we don’t want to see you anymore. We ran off.
In relation to the incident [in] July 2013 the applicant’s second statement provides that:
(21) I went to the [Venue 2] night club in [City 1] around 7 pm. I was drinking by myself and my friend called and said she wanted to join me. She is a lesbian. When she came we continued to drink. There was this group of 4 couples, 8 people, four males and four females who were seated nearby.
(22) They were making fun of me as I was wearing a tight jean and a [vest]. I could not take it anymore I went to them and said “Dont judge others whom you don’t know”. One swore at me and hit me on my chin. We started fighting.
(23) Police came and started punching me and insulting me calling me a useless Quari and I lost consciousness. They were very nice to him. I was taken to the [police] station and was locked up until [evening]. I asked them why they didn’t do anything to the other guy who started punching me first after insulting me. They said shut up you, if you talk too much will kepp you for a few more days. Just run away and save yourself.
The applicant attended an interview with the delegate; the Tribunal has listened to the recording. Some of the discussions are referred to in the decision record, including:
·     The applicant claimed and the delegate accepted that he is homosexual. Some other aspects of his claims were accepted including his claim that he applied for three jobs in 2010 but was discriminated against on the basis of his sexuality and otherwise he provided childcare to relatives and friends for board and a small fee. The delegate accepted that the applicant may have been denied three jobs on the basis of his sexuality. The delegate also accepted that the applicant was raped by his uncle in 2005, and that in 2012 and 2013 he was blocked entry to shop at the markets on one occasion and on another occasion he was mocked and had root crops thrown at him.
·     In respect of other incidents referred to in his statements, he gave inconsistent evidence concerning where events occurred, when they occurred, what happened in a particular event, he claimed different people did certain acts whereas in his statements he claimed they were the same. The delegate considered that his inability to provide consistent testimony in a clear and forthright manner does raise concerns about his claims concerning harm and mistreatment at the hands of his extended family and considered that the applicant may have fabricated or exaggerated the claims. For the purposes of the assessment however the delegate decided to accept the claims.
·     Further, the applicant referred to having had an altercation with a neighbour and although the delegate was concerned that there was a difference in the dates given as to when this occurred (one month before he left for Australia in November 2013 or on a specific date of [date] April 2013) indicating that it was fabricated, however the delegate said that for the purposes of the assessment the delegate would accept that the applicant had a dispute with a neighbour which escalated to a physical assault and the applicant may have threatened to jump from a balcony during the dispute.
·     The delegate considered however that his account of harm and mistreatment in Fiji was not presented in a forthright and convincing manner and included evidence of fabrication or embellishment.
·     The delegate noted that the applicant gave inconsistent evidence about the incident at [Venue 1]’s and [Venue 2] (dates, changing evidence as to what occurred). Concerning [Venue 1]’s, the delegate considered that the evidence was vague and inconsistent, but was prepared to accept that the applicant told the police and military to shut up and that he was punched in the shoulder and kicked in the legs. Concerning the [Venue 2] incident, the delegate was not prepared to accept that the applicant provided an honest and open account, noting the applicant’s serious and significant omission at interview, when discussing this incident, to say that the police were involved (and only agreeing to this once prompted). The delegate was prepared for the purposes of the assessment to accept that he was involved in a physical altercation with patrons at the [Venue 2] which was broken up by security and that the applicant felt unfairly treated as he was forced to leave instead of individuals who started the altercation.
The delegate considered the country information and stated that various reports over recent years have indicated that while homosexuals in Fiji may experience a higher degree of intolerance than those living in Australia, the level of intolerance does not necessarily translate into serious instances of harm against homosexuals in Fiji. Further (as at 2013) the country information indicated that there had been improvements in the general attitudes towards the homosexual community, particularly in urban areas such as Suva. The delegate considered that the likelihood of the applicant being subjected to verbal abuse to the extent of persecution is remote, was not satisfied that he would be denied employment such that his capacity to exist would be threatened, considered that the abuse received from family members was when he visited the homes of those particular relatives and he could avoid harm by ceasing to visit homophobic relatives. While accepting that he may be subjected to verbal abuse and physical harassment, including being slapped or pushed by members of the Fijian population, the delegate was not satisfied that such events reached the threshold for serious or significant harm and even if there was more serious or significant physical harm, state protection would be available. Concerning the authorities, the delegate did not accept that they were involved in systematic targeting of homosexuals (if it was the case it would be reported by NGOs) and it would seem that the applicant’s comments to the police during his one altercation with police gave rise to the physical assault; and although they should not have done this, it appears that this was an isolated incident.
The delegate considered that there was no real chance of serious harm or real risk of significant harm for the applicant in Fiji.
Further claims made at interview (which the Tribunal notes were not mentioned in the decision record) included a claim that the applicant had problems at college, people had teased and bullied him; they would take things from him and write things on his desk, throw things; and he found school hard.
The agent made submissions at interview. Concerning the issue of delay in lodging a protection visa application, it was submitted that when the applicant came to him, he told them that they did not have to rush the application; in Fiji, people wanted him to come and babysit as they were exploiting him; Fiji is dominated by the church which has a primary role in setting attitudes and one of the articles provided suggests that the church is against equal rights for gays. Further, it is a very macho culture and someone who does not behave like a man is an anathema to society. Decriminalisation has not changed the situation, there is an anti-gay society and there was a police officer who had an anti-gay crusade.
The first Tribunal was provided with an application for review form as well as the delegate’s decision record. Submissions as well as three colour photos (of the applicant standing close to/with his arm around, a man, said to be his former same sex partner [with] whom he had a relationship between December 2014 and February 2015 in Australia) were provided. The submissions stated that the applicant’s claims were set out fully in his second statement. His former partner did not want to give evidence in support on the grounds that it would damage his work and name. Concerning inconsistencies, it is understandable that the applicant would be confused about which uncles/cousins were involved in incidents of abuse because there were several incidents. He says that the events referred to were instigated by different uncles: [Mr A], [Mr B], [Mr C] and [name deleted], and although there were other incidents of abuse by his uncles they were not as serious as the ones mentioned and thus he was confused. Concerning the [Venue 2] incident, he insists that the police came to the bar and took him to the police station and he is unable to explain why he said otherwise. His mind went blank and he said whatever he said without much thought on that issue. Concerning the incident with the neighbour, it is submitted that in Fijian culture dates are not taken as seriously as in the Australian culture and the applicant tried to give his best indication of the timeline. It is submitted that any conflict with dates should not be construed strictly against the applicant.
The first Tribunal held a hearing on 21 September 2015 and made its decision on 24 September 2015 at 1.36pm. After the decision, the first Tribunal received a statutory declaration from [Ms D] sworn 24 September 2015 by way of email on the same date, at 4.08pm. The applicant was advised that the first Tribunal had made its decision and thus was functus officio and could not take this into account.
In its decision, the first Tribunal noted that there were different versions of events, but was prepared to accept that the applicant was mistreated in the [Venue 1] and [Venue 2] incidents. It was accepted that anti-gay prejudice came into play on both occasions. The first Tribunal found that these episodes arose in individual, arguably unique and isolated circumstances, both involving nightclubs where drinks were consumed and tempers and voices are sometimes raised, in which the applicant respectively debated with a group of drunk men and told a police officer to shut up. The first Tribunal gave no weight to either of these episodes nor to the applicant having been placed in overnight lock-up after the second incident.
Further, the first Tribunal considered that it was unable to resolve the apparent inconsistencies concerning the claims about relatives verbally and physically harassing the applicant; finding that he had many more encounters with relatives which were not abusive encounters, and that those who do not like him tend to avoid him (rather than seek him out); that the applicant had sympathetic female relatives; and not accepting the submission that the applicant has no support network back in Fiji. Thus, while accepting that there continues to be some societal and institutional discrimination in Fiji against people with LGBTI sexual orientations and that this can surface sometimes with or without any perceived provocation, the first Tribunal was not satisfied that the applicant would need to suppress his sexual orientation or alter his behaviour, such as changing his manner or dress in Fiji to avoid persecution.
On appeal, the appellant contended, among other things, that the Tribunal failed to take relevant considerations into account since it gave no weight to the incidents which it had accepted that the applicant had experienced.
The Federal Circuit Court found that there was no jurisdictional error.
The Full Federal Court however found that there was a constructive failure to exercise jurisdiction on the grounds that the first Tribunal’s factual treatment of the incident at [Venue 1]’s proceeded on the assumption that the incident had happened as the applicant suggested. This included him being made to kneel, confess himself a shameless Qauri and beg for mercy. However, the first Tribunal’s analysis of whether those facts amounted to persecution for a Convention reason failed to deal with this central part of the applicant’s claim, which was a claim of persecution which arose squarely from the account given by him.
The current Tribunal
Submissions were made to the current Tribunal dated 26 September 2018 (signed by the applicant and the agent). The submissions set out 14 claimed events with dates (some specific, some just the year). It was also noted that since March 2018 the applicant has a new same sex [partner], who works in [a certain industry] and is of [a particular] heritage. The submissions provided a response to the issues raised by the delegate, repeating some of the earlier submissions to the first Tribunal; including in relation to the applicant not knowing why he did not tell the delegate that the police took him away after the [Venue 2] incident (his mind went blank); that dates are not as important in Fijian culture, and the applicant’s confusion as to when, and which uncle, subjected him to beating and abuse was understandable: it was submitted the first Tribunal member was “somewhat able to understand this issue”. The Tribunal notes that it is not bound to follow any aspect of the decision of the first Tribunal member, and the agent did not suggest this was the case. Updated country information was also referred to in the submissions, including from the DFAT Report of 27 September 2017 noting that:
·     Homosexual men and women experience limited acceptance in Fiji and while there are a number of NGOs operating in Suva, they are cautious in public advocacy due to continued conservative values in society.
·     The Prime Minister in 2016 was quoted in the media as saying that same sex people could go and get married in Iceland if they wanted to do it (it is not legal in Fiji).
·     Gay men and women often do not come out to their families and are often not accepted, particularly when co-habiting. They may find more acceptance in Suva, particularly in wealthier areas.
·     Concerning transgender individuals, they are socially accepted but only in some contexts. Drag shows are common and broadly accepted in Suva and [City 1]. Transgender men are accepted as entertainers but may find it difficult to find more mainstream employment (the submissions indicate however that transgender is not relevant).
·     DFAT assessed that overall, LGBTI Fijians are at a low risk of official discrimination, and at moderate risk of societal discrimination.
It was submitted (without specifying the country information relied upon) that the Constitution banning discrimination and the repeal of the law criminalising homosexuality does not have much impact because of the historical prejudice. The applicant was mistreated by society as a whole; he was not in a position to file criminal charges against people and the police would not have been sympathetic to that course of action and any action taken by the applicant would have made things worse. The Christian church is at the forefront of discrimination portraying it as a sin and Fijians go to church and listen to what church leaders say thus the whole society is hostile to the concept of homosexuality; the Prime Minister’s attitude is typical and it would reinforce hostility in the military. It was also submitted that what applies in the wealthier suburbs of Suva does not apply to the applicant as he is from a more humble background and in any event DFAT is just speculating about Suva. It was also submitted that a moderate risk of discrimination as assessed by DFAT meets the “real chance test” as it is more than a real chance which is based on possibility. Further it was submitted that a low risk of official discrimination is the equivalent of “no state protection” because there is a risk of discrimination.

Further submissions dated 2 October 2018 (signed by both the applicant and his agent) were received on the morning of the hearing, correcting earlier submissions, adding country information referring to a feared hate crime in Fiji (two murders in 2018, one of a gay university student, and one of a female who had recently identified herself as a transgender woman in 2018, references to the police having started investigations, however people in the LGBTI community said that they were not confident of a proper investigation), as well as two support letters (from an Opposition MP and his wife, a journalist, sent to the Tribunal, differently constituted, in another applicant’s case) setting out their views of the general situation in Fiji for homosexuals; namely that they have limited opportunities for career advancement and that society is predominantly conservative and that although Fiji generally and laws specifically have advanced in this area of human rights, there are still cases of abuse and sexual violence towards the LGBTI community. It was suggested that the comments of the Prime Minister (that there will not be legalised matrimony for gays) as well as the lack of outcry against such comments lends fuel to the fire of homophobia. It was suggested (with no evidence this is the case) that his statement had led to abuses including the killing of a law student “believed to be due to his being gay”. It was also noted that while some churches have embraced homosexuality and called for respect of people’s sexual preferences, some have organised protest marches in an attempt to influence the government to denounce homosexuality. The wife worried about her own son who was gay, and waited anxiously for him to come home after a night out. She believed the situation was getting worse for gay people.
The Tribunal notes that the 26 September 2018 submission had mentioned that the applicant had been asked to move out of the home of the Fijian family where he had been staying for a long time because they didn’t want the applicant to be engaged in same sex activities. The 2 October 2018 submissions enclosed email correspondence between the lady of the house ([Ms D], referred to above) and the applicant, which had been translated into English by the applicant. Although there was no evidence that the applicant was an accredited translator, the Tribunal was prepared to accept that the translation was an accurate reflection of the emails written in Fijian.
The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Tribunal also received submissions from the agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant attended the hearing with a man who he said was his partner; they started the relationship in March 2018. The agent indicated that the man was prepared to give evidence to prove the issue of the applicant’s homosexuality; towards the end of the hearing, the Tribunal noted that this was not necessary and that it was prepared to accept that the applicant was a homosexual.
The applicant’s evidence at hearing included the following:
·     In the village, the family’s main source of income was his mother who worked in a [workplace]; his father was [an occupation].
·     The applicant said that, from a young age, he has been perceived as gay or a non-straight male, as a result of the way he behaves, the way he dresses, his presence. Sometimes when he dresses up in a girl’s dress, or he does his hairstyle in a certain way, he gets criticised; other people accept it. He has not had to hide how he is, but he felt it was hard to feel free to dress or be however he wanted to be because he did not know what people’s reactions would be. He has heard people joke about how he appears to be gay.
·     Because of his qualifications and the level of his school education he finds it a bit difficult to find work.
·     He only had two jobs in Fiji. The first was for his cousin [Ms E], for whom he babysat. She worked [and] her husband was [an occupation]. The second was in Suva, working for his friend’s mother, [Ms F], babysitting her grandchild. This work was unpaid because they paid for his fare to come to Australia and also for his visa application. When the Tribunal asked what the arrangement was, he said he was looking after the child and [Ms F] agreed that she would help him get to Australia. When asked whether there were discussions as to how long he would have to work for her, or how much it would cost to go to Australia, he said there were no such discussions. The Tribunal put to him that it appeared that he had agreed to look after a child for an unknown period of time in the hope of one day being able to travel to Australia; this could have taken years. The applicant did not explain other than to say that the woman’s daughter was his good friend.
·     The Tribunal noted his evidence that he finished school in [year] and remained in Fiji until December 2013. The Tribunal asked the applicant how he managed to survive financially, given that it was his evidence that he only worked two and a half years (at most) babysitting. He said he would sell [goods] obtained from the village and sometimes he was supported by some friends, either in the village or in Suva.
·     His first relationship in Fiji was with [Mr G] for about three months in 2011. When asked why the relationship broke up, he said it was a bit difficult to carry on with the relationship and live together in their home village, there was a lot of mistreatment from the Fijian community, so they decided to break up.
·     His last relationship in Fiji was a casual one, just meeting up for sex when they had time, it lasted for about one year in 2011/2012. The person was [Mr H] (he doesn’t know his surname). [Mr H] was based in [City 1]; the applicant was living at that time in [City 1].
·     The applicant has been in Australia since December 2013, and in that time he has only had two relationships; the current relationship started in March 2018, and a previous relationship in 2016 for a few months with a man called [Mr I] (he has forgotten his first name). He has not had any other relationship in Australia.
·     The applicant has had two jobs in Australia, for two years and seven months ([details deleted]). The Tribunal put to him that he had been in Australia for almost six years, so it did not understand how he survived financially if he did not work for more than three years of that time. He said that he lived with [Ms D] and her family and they supported him financially (he would assist in the home).
·     The applicant claimed that he was not accepted by his family. When asked whether he was sent away, he said no, he was not sent away and he still lived with family but it was uncomfortable, especially with male family members such as his father who did not accept the applicant’s lifestyle and this started to rub off onto his brother as well. The Tribunal noted that the applicant had claimed that Fijians treat homosexuals more like animals and he said that is correct, and that he was not accepted by family members. The Tribunal put to the applicant that if he was considered lower than an animal, it seemed hard to accept that people would allow him to look after their children in long-term babysitting jobs. Further, it does not make sense that he would approach family members and attend family gatherings as claimed. In response he said that there was a minority of people who would accept him, however he could feel that they were just “putting up” with him.
·     The applicant said that he hardly ever would go out, maybe once a month or a few times a month; he would go to [Venue 1], a nightclub in Suva with friends. He said that he does not have many friends, he can name just a few. He has about four friends (and their partners). He has about eight friends in total in Fiji (from his village, other villages, Suva). When asked if he has any more friends, even just more casual friends, he said no. He would not have emotional support if he returns to Fiji. The Tribunal noted that if he had eight friends, it would appear that they could offer him support. He did not disagree; he said the reason they are friends is because they all live the same lifestyle and experienced difficulties. They are the only people who are his friends; everyone else does not accept him in Fiji. He later said that his friends would not be a source of support as they are facing the same difficulties and they are afraid.
·     The applicant told the Tribunal that he feared, upon return to Fiji, firstly the police, and secondly his family and the public; he does not have any support and he could die. He believes that with his lifestyle and sexual orientation he will find it difficult to find support in Fiji.
·     When asked if there was any other reason not to return, he said that there is no guarantee that family / police will support him, and they are just putting up with him. He believes that if he goes back he will face more problems than before and he will suffer more than he did before. There is nothing else that he fears or worries about upon return to Fiji.
While noting that it had not made up its mind, the Tribunal put to the applicant concerns with the credibility of his claims including as a result of inconsistencies. It also referred to country information sourced from the relevant DFAT Report on conditions in Fiji.
Further relevant evidence, and information put to the applicant pursuant to s.424A of the Act, are set out below.
FINDINGS AND REASONS
Country of reference
The applicant produced his passport to the Tribunal. The Tribunal finds that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purposes of his complementary protection claims, is Fiji.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to 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 the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal had concerns in relation to the applicant’s changing, inconsistent and non-credible evidence concerning the details of his claims in numerous respects, as set out below.
Firstly, concerning one of the incidents referred to in his written materials (the family [event] incident), the Tribunal noted that the applicant claimed in his statement that this occurred [in] October 2011, and he was beaten up by his cousin and uncle because they did not want the applicant to bring a gay partner with him to the [family event].
The Tribunal asked the applicant whether he had suggested to his family members that he would bring his gay partner to the [family event] with him and he said that is correct, they didn’t like the idea of him bringing a gay partner back with him to the [family event]. The Tribunal noted that in his statement, the applicant had claimed that his father had told him that he was ashamed to face family members because the applicant was gay. It did not understand why he would suggest bringing a gay partner to a family [event], as he claimed that his father had been so upset when the applicant came out to him, and considering his claims more generally about family, society and rejection of homosexuals. The applicant then changed his evidence and said that it was a joke, and he didn’t know it (bringing his gay partner to a family [event]) was something that family members didn’t accept. The Tribunal does not find this explanation to be credible, noting it was 2011, by which time the applicant claimed to have been rejected and assaulted for being gay including:
· harassment at school; he was unable to get jobs in 2010 because he was homosexual, general society attitudes are that homosexuals are considered as worthless as and lower than animals and are rejected and harmed.
· he had admitted to his family in Year 8 ([year]) that he was gay, his father had assaulted him and his family were ashamed of him and he said that he did not want to cause them pain.
The Tribunal considers that the applicant’s claim that he did not know that he could not bring a gay partner back to a family [event] is inconsistent with his claimed past history, and it undermines his credibility.
The Tribunal had further concerns about the details of this incident, as put to the applicant pursuant to s.424A of the Act. At the interview with the delegate, the applicant had said that he had been at a [family event], he then went to (his sexual partner[3]) [Mr H]’s house. When his uncle and cousin telephoned and asked where he was, he told them. They came to get him to take him back to the [family event], and started to punch him. This however was inconsistent with his evidence at the hearing with the Tribunal: he claimed that his uncle and cousins had secretly followed him from the [family event] back to [Mr H]’s house where they attacked him. The Tribunal put to the applicant that it would think that he would remember whether he was secretly followed, or whether they telephoned him and he told them how to find him.
[3] Also refer to delegate’s decision record, p5, provided to the Tribunal
In his post hearing s.424A response, the applicant said that his cousin and uncle telephoned him and he told them where he was. He didn’t expect them to come and get him. They came and beat him and forced him to come back to the [family event]. Given his claims of anti-homosexual sentiment and the claimed circumstances that he had left a family [event] to go to his sexual partner’s home, the Tribunal is not prepared to accept that he would even think to tell his (male) family members where he had gone. The Tribunal also considers that the applicant has not adequately explained why he gave different evidence at hearing (that his male family members secretly followed him to his gay partner’s house where they attacked him). The Tribunal considers that this also undermines this claim, and the applicant’s credibility.
Secondly, the applicant gave inconsistent evidence about the family members he said had assaulted him (and, at hearing, appeared to need notes in this regard). Reading his two statements together, he claimed that the same uncle beat him in the October 2011 [family event] incident, the December 2011 incident and the December 2012 incident. However, he told the delegate that there were different uncles involved in each incident: in October 2011 uncle [Mr A] assaulted him, in December 2011 it was uncle [Mr B], and in December 2012 it was uncle [Mr C] who did so.[4].
The Tribunal referred to this at hearing as a concern. In response the applicant said there were different uncles involved and they were mentioned in the statement. The Tribunal noted that there were no names of uncles in his statements, instead he referred to the “same uncle”. The applicant also said (later) that there were a few other uncles involved in fights and disagreements; the ones he could recall, he put in his statement. The Tribunal considers that the applicant did not, however, adequately explain why he said that the same uncle was involved, and then later changed his evidence to say that different uncles were involved.
The Tribunal’s concerns in this regard were heightened because earlier in the hearing, when it asked the applicant questions, he glanced at notes he had in front of him. The Tribunal looked at one of the notes (placed on Tribunal file[5]) and saw that it was a list of dates with the corresponding name of the uncle. The Tribunal asked why he needed this reminder and the applicant did not respond except to say that he forgot to put this away before he started. The Tribunal was concerned that the applicant needed a written reminder of the name of the uncles involved in these events (he listed four); especially given there was no medical evidence provided indicating he had any difficulties with his memory. The submissions (that it is simply a matter of culture as an explanation for why the applicant gave such significantly inconsistent evidence in relation to dates) do not overcome the Tribunal’s concern.
Thirdly, the Tribunal was concerned with the applicant’s changing evidence about his same sex partners and treatment in this regard.
[4] Delegate’s decision record, p5, provided to the Tribunal
[5] Tf44
At the interview with the delegate, he was asked if he had any partners in Fiji and he said he had two partners (both in Suva), namely:
·    A relationship in Fiji with [Mr J] from October to December 2011; the relationship started in Suva, he lived in [a location] in Suva; he met him at [Venue 1]’s.
·    When asked if he had any other partners, he said yes, [Mr G], but he was not a partner, they were just having a sexual relationship. At the time they both lived in the same building when he was living with his friend’s mother in Suva which is the last address he lived at prior to coming to Australia, in 2013. This was the time that he wanted to jump off a building because the neighbour was punching him because of this relationship.
·    He had no other partners in Fiji.
This, however, was inconsistent with his evidence to the Tribunal that:
·    He had two relationships in Fiji, his first relationship in Fiji was with [Mr G] for about three months in 2011, while they were both living in their home village. When asked why the relationship broke up, he said it was a bit difficult to carry on with the relationship and live together in their home village; there was a lot of mistreatment from the Fijian community so they decided to break up.
·    His last relationship in Fiji was a casual one, just a sexual relationship when they both had time, and this lasted for about one year. The person was [Mr H] (he doesn’t know his surname); it occurred in 2011/2012. [Mr H] was based in [City 1]; the applicant was living at that time in [City 1].
·    He did not have any other partners.
The Tribunal was concerned that the applicant had given inconsistent evidence about his relationships in Fiji, and where he was living in Fiji. This was put to the applicant pursuant to s.424A of the Act. In response he said that he did not lie about the partners in Fiji, he gave the answers to the best of his ability, he had three partners ([Mr J], [Mr G] and [Mr H] who was casual). The Tribunal does not consider that he has provided a satisfactory substantive response as to why his evidence changed about his partners in Fiji, and where he was living when he had his relationships. The Tribunal considers that this undermines the applicant’s credibility.

This concern was heightened as there was a further inconsistency in the applicant’s evidence which directly related to one of his claims of past harm and attitudes/ treatment in the village. At the interview with the delegate, he was asked whether he had any close friends in the village, or whether he had any sexual partners in the village, and he responded no, he could not have any sexual partners in the village, it was not possible. This however was inconsistent with his evidence to the Tribunal, as set out above, namely that his first (sexual) relationship in Fiji was in his home village, with [Mr G], for about three months in 2011, and that it had broken down because of an inability to continue the relationship and live together in his home village and there was a lot of mistreatment from the Fijian community in the village. His evidence at the interview however had directly contradicted this. The Tribunal put the inconsistency about this relationship to him at hearing, he said no comment. The Tribunal was concerned that he did not offer an explanation for this at the hearing. In his post hearing written s.424A response, he claimed that he confused his two partners, [Mr J] and [Mr G]. He said his partner was not from the home village, he had no relationship in the village. He did not however explain why his evidence was so inconsistent; his response suggests that his evidence to the Tribunal (that he had a relationship in the village; it was difficult to carry on; there was mistreatment from the villagers) was a fabrication. The applicant also did not explain how he confused his two partners. The Tribunal considers that the above indicates that the applicant has not been truthful about his background, treatment and relationships in Fiji.
Fourthly, the Tribunal was concerned with the applicant’s changing evidence about where he used to reside in Fiji, noting that this was also relevant to his claimed relationships and his reason for moving.
He told the Tribunal that after his relationship in the village finished with [Mr G] in 2011, he moved to live with his cousin [Ms E] in [City 1]. He did babysitting for her children for two years. The applicant stopped living with her around Christmas 2012.
The Tribunal asked where he went after he stopped living with [Ms E] in [City 1] (Christmas 2012) and he said he decided to go back to Suva. The Tribunal noted that going “back to Suva” suggests that he had previously lived in Suva and asked whether, prior to this time, he lived in Suva. He said no; he then said he had gone there sometimes and visited relatives and stayed for a few weeks at a time.
His evidence was thus that he moved from [Ms E]’s in [City 1] to staying in Suva, babysitting for six months for [Ms F] (a friend’s mother), until he came to Australia. The Tribunal noted that he came to Australia in December 2013, so if he only stayed in Suva for six months, this would mean that he moved there in mid-2013 (not Christmas 2012). The applicant then agreed.
The Tribunal noted, however, that in his application form, he said he had lived in Suva from March 2012 until December 2013 (one year and nine months). He said that is correct. The Tribunal noted that he had just said that he only lived in Suva for six months before coming to Australia. In response he said he just forgot.
The Tribunal also noted that, contrary to his evidence to the Tribunal that he had gone from living in the village, to then living in [City 1], to then living in Suva, his application form stated that prior to living in Suva, he had lived, not in [City 1], but in [Town 1] (from September 2011 until March 2012). In response the applicant said that is correct. The Tribunal noted that this was inconsistent with the evidence he had just given. In response the applicant said that he forgot about living in [Town 1].
The Tribunal then noted that the claim of living in [Town 1] from September 2011 until March 2012 was inconsistent with his evidence to the Tribunal that he was living in [City 1] when he was having a sexual relationship with [Mr H] between 2011 and 2012. The applicant changed his evidence and said that it was [Mr H] who lived in [City 1]. The Tribunal noted this change and asked the applicant if he wanted to comment and he said no.
The Tribunal was concerned that the applicant’s changing evidence, his failure to explain changes in evidence, as well as his claims that he forgot where he lived and when he lived in certain places, undermines his credibility in relation to his background and circumstances in Fiji. This concern is heightened when considering the following inconsistent and changing evidence relating to where he lived and moved to, relevant to his claim of past harm including harassment on the basis of his homosexuality/perceptions about him. As put to the applicant pursuant to s.424A of the Act:
·At the interview with the delegate he said that he grew up in [Village 1]; in 2009 he went to [City 1] and worked for three months to purchase medication for his mother and then he went back to the village, and then after his mother passed away, in about August 2010, he went to Suva. For five months in Suva he had no fixed address, he would just sleep in different places. Then he lived with a friend in Nadera, Suva, for about three months and then he moved in with his friend’s mother where he resided until he came to Australia (from about mid-2011 to December 2013, over two and a half years).
·He then changed his evidence when the delegate put to him that the above was inconsistent with his application form. The delegate noted [Town 1] was mentioned in his application form and the applicant said yes he had lived there. When asked when he lived there, he said he forgot the year. When asked why he went to [Town 1], he was silent. The delegate said it was difficult to understand the delay in his responses. He then said that after he stayed five months at no fixed address in Suva he moved to [Town 1] where he lived with his friend [Ms E] and he babysat her children for seven months.
It was the applicant’s claim that because he was a homosexual, the only two jobs he could get were babysitting. His evidence however about these jobs was inconsistent: leaving his home village in 2011 to live with [Ms E] in [City 1] and babysitting her children for two years until Christmas 2012, compared to babysitting for [Ms E] for seven months and then babysitting for [Ms F] for six months until he came to Australia. The Tribunal was concerned that his evidence changed in regard to where he lived (and babysat) and how long he had his specific babysitting jobs, which was difficult to understand given that there were only two jobs to remember.
The Tribunal noted that the above indicated that he had given changing evidence in his written materials, at interview with the delegate, and at hearing, about his work and where he lived in Fiji; indicating that his evidence about his past in Fiji is not reliable. In his s.424A response, the applicant said that he does not have a reason to lie about where he lived. He tried to remember where he lived to the best of his ability. The Tribunal has taken this into account (as well as submissions about dates not being as important in Fiji); the Tribunal notes however that the applicant offered precise dates which then changed; and not only did the dates change, but also lengths of time changed, as did locations.
The Tribunal noted that the applicant had claimed to change locations as a result of his situation and feared harm, as well as an inability to obtain work:
· Although at the interview with the delegate he initially did not answer when asked why he moved to [Town 1], he later in the interview claimed that he did so because in the village he was taunted and people called him rude names related to his perceived sexuality and feminine nature.
· At interview he said that the reason why he left [Town 1] after seven months of living there (babysitting) with [Ms E] and her husband and two children was because it was not safe, as [Ms E]’s husband was always treating him badly, telling him that he is a Quari, it is not the job of a man to look after children, it is the job of a lady. The husband would scream abuse at him.
The Tribunal put to the applicant that if he moved both to, and from, [Town 1] to escape discrimination and harassment as a result of his sexuality and appearance/adverse perceptions of him, it would think that he would have mentioned living in [Town 1] to the delegate, however he made no mention of [Town 1] until he was prompted by the delegate; this was similar to what occurred at the Tribunal (omitting to mention living in [Town 1] until prompted).
A further concern was that when the Tribunal asked the applicant why he stopped living in [Town 1] with [Ms E], his response was inconsistent with the claim made to the delegate (that he had moved because of the abuse and fear of harm). Instead, he told the Tribunal that he left because he decided to go back to Suva because he had a babysitting job opportunity with his friend’s mother [Ms F]. The Tribunal provided him with two opportunities to explain why he left, but he made no claim that it was because he had suffered abuse due to his sexuality at the hands of [Ms E]’s husband. The Tribunal was concerned that his reasons for leaving his place of residence/work with [Ms E] were inconsistent and considered that if he left because of the abuse he received, he would have told the Tribunal this.
Further, that explanation to the Tribunal (that he left [Town 1]) because he had a babysitting opportunity in Suva with [Ms F] was undermined by other inconsistent evidence about what he did when he first arrived in Suva (for example he arrived and had no fixed address, moving aimlessly from house to house for five months).
Further, his evidence referred to above was also inconsistent with his evidence at the hearing with the first Tribunal member, when he said that he lived in the village for 16 years, then he moved to [City 1]; he lived in [Town 1] for about three years; he moved back to his village to look after his mother; then he moved to Suva where he resided for three to four years. The Tribunal noted that this was inconsistent with other (changing) evidence as to how long he lived in Suva (six months from mid-2013 until December 2013, then one year and nine months from March 2012 until December 2013). The Tribunal suggested that it would think that he would have recalled if he lived in Suva for six months, or one year and nine months, or three to four years, and that he would have been able to give fairly consistent evidence about this.
The Tribunal has considered his responses to its concerns including his responses to the s.424A letter, including that he had encountered discrimination and abuse many times in his life and just because he did not mention [Town 1] doesn’t mean it is not true. He was at the mercy of the people he had to stay with and his failure to mention the treatment from [Ms E]’s husband is not relevant because he received such treatment everywhere. At hearing he said that when he left [Ms E] he went to look after his friend’s grandchild and at the same time the incident happened with the husband and this pushed him to go, although he accepts that he didn’t mention it. He also said that he had not deliberately lied about where he lived, the treatment was always the same no matter where he lived. He is not good with his memory. The issue is not where he lived, it is the treatment he suffered.
The Tribunal has considered the explanation for his omissions/changing evidence (that he received the same treatment everywhere), but does not find this persuasive. For example, the Tribunal considers that if the applicant had left [Ms E]’s house and the only employment he had been able to obtain (having earlier been rejected for employment because he was a homosexual) as a result of mistreatment from [Ms E]’s husband because of his homosexuality, it would expect he would mention this, especially as he was given several opportunities to do so. The applicant did not produce any medical evidence to support his assertions in relation to his memory. The Tribunal is not prepared to accept his claim of a lack of reliable memory as an explanation for the inconsistent and changing evidence and claims referred to above. The extent of the changes and differences in his evidence, as well as his own evidence that he had to change addresses because of the treatment received and then his omission to mention the reason for such changes in address, undermines his claimed jobs and places of residence and his claim that he was mistreated/unable to work and moved locations within Fiji because of his sexuality or femininity or due to adverse treatment or attention. It also undermines his credibility.
Fifthly, the Tribunal was concerned that numerous details in relation to past events and harm were inconsistent and changing.
Inconsistent and changing aftermath of [Venue 2] incident: In the applicant’s statement, his description of the [Venue 2] incident (said to be the most recent incident before he left for Australia) included the police coming to [Venue 2], punching him and taking him to the police station. At interview however,[6] he claimed that the fight in [Venue 2] was broken up by security guards who told him to leave the premises, so he sat outside crying and treating his injured nose, before going home. When asked by the delegate to clarify whether he had experienced any other problems with the police (apart from the incident at [Venue 1]’s) he said no. When asked whether he had ever been arrested or detained by the police, he said no.
[6] Delegate’s decision record, p7
The Tribunal was concerned with the significantly different versions of the same event, as his evidence to the delegate indicated that his version of events in the statement was not truthful. It was only after the delegate[7] pointed out to the applicant that, according to his statement, the police had assaulted him at [Venue 2] and then detained him at the police station, that the applicant then said he had been locked up at the police station. When asked to clarify whether he had gone home after the incident as he had earlier claimed at interview, or whether he had been locked up by police, he said it was the latter. The Tribunal asked the applicant at hearing how he could explain his changing and different claims; in response he said that it was the police who broke up the fight. When the Tribunal noted that it was asking him how the versions of this incident could be so different, he said he forgot. The Tribunal does not find this (or his written explanation that he went blank) to be a persuasive explanation. The Tribunal considers that if [Venue 2] event were true, the applicant would have given fairly consistent evidence as to the aftermath, but that his claims are directly contradictory (going home after security guards broke up the event vs. being punched by the police, losing consciousness and being taken to the police station and detained), which undermines his credibility and this incident.
[7] Delegate’s decision record, p7
Inconsistent and changing evidence of harm during [Venue 1]’s incident: The applicant provided changing evidence as to the harm perpetrated by the authorities on him at [Venue 1]’s incident:
· In his statement he claimed that the police asked him to kneel down with others, and asked each of them to say “I am a shameless Quari and I ask for mercy for my bad behaviour”. When he refused, they slapped him so hard that his ears started ringing and told him that he would have to kneel down until morning if he didn’t say what they wanted. He had no choice but to say it, then the police told them all to run away, so they did.
· However, at interview when asked what had happened, he said he was punched in the shoulder and kicked in the legs;[8] he did not mention the above account at all.
[8] Delegate’s decision record, p6
The Tribunal put these different versions to the applicant at hearing. He said that there were a lot of things that happened but at interview he just mentioned the ones he could quickly think of. The Tribunal has considered this explanation but does not find it persuasive, noting that even the accounts of physical violence were different (slapping hard on the ears vs. being punched in shoulder and kicked in legs). The Tribunal’s concerns in this regard were heightened because there were also inconsistencies with his account of the harm suffered in [Venue 2] incident. In his statement he claimed that there was an altercation in the bar because he was wearing tight jeans and a [vest] and people were making fun of him; one swore at him and hit him on the chin and they started fighting. However at interview he said that he had an injured nose.[9] The Tribunal asked the applicant why there was a difference in what he said had happened (being hit on the chin/nose). He said that he forgot to mention being hit on the chin at interview. The Tribunal is not prepared to accept this explanation, noting that it is in both accounts that he claims different places where he is assaulted/injured.
[9] Delegate’s decision record, p7
Inconsistent and changing evidence as to whether his friends were beaten during the [Venue1] incident: The applicant changed his evidence at interview as to whether or not his friends were beaten at the time. As set out in the delegate’s decision record, he initially said that the police did not beat his two friends. It was only when he was asked to explain why they didn’t beat his two friends that he then changed his evidence and said that they did punch his two friends.[10] The Tribunal asked the applicant at hearing why he changed his evidence and he did not explain why, he just said that they were all beaten. The Tribunal is concerned the applicant did not explain why he initially told the delegate that his friends were not assaulted, and considers that the changing evidence undermines this incident.
[10] Delegate’s decision record, p6
Inconsistent and changing dates of [Venue 1]’s incident: The applicant told the Tribunal that this (perhaps) occurred at New Year 2010. This however was in contrast with his second statement where he claimed it occurred in January 2013. The Tribunal put to the applicant that there was two years difference in the dates; in response he said that he made a mistake. This was not, however, the only time the date of this incident changed. The applicant had originally told the delegate that this event occurred on a specific date of 7 June 2012; he had then changed his evidence to another specific date of 2 January 2013. These dates were different to the date he gave the Tribunal. The Tribunal asked whether he could explain why the dates were changing so much; he responded that he was very mixed up with the dates and the ones he could recall are what he mentioned. The Tribunal was concerned with such changes. The Tribunal noted the submissions about specific dates not being important culturally, but it was concerned that specific dates had been given, but they were changing significantly, and it does not find this submission a satisfactory explanation for the changing date of the applicant’s first (out of two) adverse encounters with the authorities.
Changing evidence in response to the Tribunal’s concerns: The Tribunal was concerned that the applicant changed his evidence about when significant events occurred, in order to respond to the Tribunal’s concerns. After the applicant told the Tribunal that he had been too fearful to wear feminine attire after [Venue 1]’s incident (which according to his written evidence occurred in January 2013), the Tribunal asked the applicant what attire he wore when he went to [Venue 2]. He said he wore tight jeans and a [vest]. The Tribunal noted that he had earlier told the Tribunal that this was considered feminine attire, yet [Venue 2] incident occurred after [Venue 1]’s incident. This undermined his evidence that he did not wear feminie attire after [Venue 1]’s incident. The applicant then changed his evidence to say that [Venue 2] incident occurred earlier than [Venue 1]’s incident, in about 2011. The Tribunal noted this was inconsistent with his written material where he claimed that [Venue 2] incident occurred [in] July 2013 (which was after [Venue 1]’s incident in January 2013). The Tribunal asked if he could explain this changing evidence. He then said that it is correct that [Venue 2] incident occurred just before he came to Australia in 2013; he then said that [Venue 1]’s incident occurred in about 2011. The Tribunal was concerned not only with the changing dates of these incidents, but also with the applicant’s changing evidence as to which incident occurred first. Further, his final evidence that the [Venue 2] incident, where he wore feminine attire, occurred after [Venue 1]’s incident, undermines his claim that he was so upset after [Venue 1]’s incident that he did not thereafter wear feminine attire in public.

The Tribunal put to the applicant that it was concerned that there were significant changes in his evidence about these matters. In response he said that he cannot recall some dates and exact years and he has mentioned a lot of dates and years and he got messed up. While the Tribunal is prepared to accept that mistakes can be made, it is not prepared to accept this explanation when considering the extent to which the applicant changed his evidence, namely not only specific dates, but also about the order of significant events, whether or not he encountered the police and was detained (or just went home), and whether or not an incident was so upsetting that he had not thereafter worn feminine attire. The Tribunal considers that this undermines his credibility and his claims.
The Tribunal had a further concern with the applicant’s inconsistent evidence with what he was wearing at the two incidents involving encounters with the authorities. As put to the applicant pursuant to s.424A of the Act, at the interview with the delegate, the applicant said that he was at [Venue 1]’s nightclub and he was wearing a dress. The delegate put to him that it sounded like he was comfortable enough to go to a nightclub in a dress and he said that he had been wearing pants and a [vest], and he then changed into the dress in the nightclub. He said he was afraid. When the delegate asked why he would put on a dress if he was afraid he said he did not know. He later claimed that his (gay) friends forced him to wear a dress. When the delegate put to him that it did not make sense that his friends would force him to wear a dress if that would put him in danger, he did not respond.
The applicant however gave different evidence to the Tribunal about what he was wearing at [Venue 1]’s. When asked, he said he had been wearing tight jeans and a [vest] (he did not mention a dress). When the Tribunal put to him that he had told the delegate that he was wearing a dress and that this was the reason why he was targeted, he then said that he must have got confused, he had not been wearing a [vest] and tight jeans at [Venue 1]’s nightclub, instead he wore a [vest] and tight jeans at the later incident at the [Venue 2]. This, however, was different to what he had told the delegate (that he had worn a [vest] and tight jeans, and then changed later into a dress).
The Tribunal asked the applicant why, if he had been wearing a dress and if this was the reason he was targeted, he did not mention this in his statement or at hearing. In response he said he was confused, some of the things he put in his statement but there were other things he forgot when doing his statement and recalled at interview.
In his s.424A response, the applicant said that at [Venue 1]’s he was wearing a dress and at [Venue 2] he was wearing a [vest] and tight jeans. He did not offer a satisfactory explanation as to why his evidence changed. As put to the applicant, the Tribunal considers that if the incident had occurred at [Venue 1]’s nightclub as claimed, he would have been able to recall what he was wearing (and if he had changed into a dress which made him scared) which, he said, led to him being targeted. Further, it would think that he would have been able to explain to the delegate why his friends forced him to wear a dress. While the Tribunal has considered the applicant’s response that he was targeted because he was wearing a dress which indicated that he was gay, this does not however explain his changing evidence about what he was wearing. The Tribunal considers that the above undermines his credibility and the incident at [Venue 1].
Sixthly, the Tribunal had concerns in relation to supporting evidence provided by the applicant from his landlord, [Ms D]. The applicant had produced to the Department her statutory declaration dated 24 September 2015, in which she claimed that the applicant had started living with her and her children in February 2014. He is gay. She accepts him because her [son][is] gay. She wishes people would accept others with a different sexual orientation without making life difficult for them; she understands the applicant’s hurt feelings. She thinks that the Methodist church in Fiji is still a huge problem causing suffering to gay people; many Fijians in Australia are still antagonistic to gay people.
It was the applicant’s evidence to the Tribunal that he had been living with [Ms D] and her family for four/five years since 2014; she had been supporting him financially by allowing him to live at her home without payment for five years; and she had found him some cash work cleaning houses for several years. He said he only stopped living with the family one month earlier as there was “a bit of disagreement” and he decided to move.
However, despite the earlier evidence from [Ms D] indicating significant support and sympathy for the applicant including because he was gay, the day before the current Tribunal hearing, the applicant produced contradictory evidence from her, in the form of an email, dated 18 September 2018.
That email states that she is not happy that the applicant has a gay boyfriend; “as Christians we are not going to tolerate such behaviour”; she does not want her children to think that they entertain such behaviour; and because the applicant is in a gay relationship he is “likely to be infected with disease”. This email appeared inconsistent with, and to undermine, her original statutory declaration (which she swore to be true and noted that a false statement in a statutory declaration means that a person is guilty of an offence). The Tribunal asked the applicant if the email was genuine, as the contents appeared to be inconsistent with her statutory declaration where she accepted and supported that the applicant was gay and wished that others would do the same; she considered the church to cause (wrongful) suffering to gay people; she understood and accepts the applicant because her own son is also gay.
The applicant said that he doesn’t know why she was thinking that way. He also said that her son is still making a decision and he hasn’t really made up his mind as to whether he is gay, he is transitioning. The applicant doesn’t know how much she knows about her son. The Tribunal put to the applicant that his response was inconsistent with her initial statutory declaration: firstly as she said in 2014 that her son is gay (not that he was still making a decision about this), secondly because her statutory declaration indicates that she does know about her son’s homosexuality. The Tribunal considered that the applicant’s ability to live with [Ms D] and her family (including her gay son) for many years while she knew that the applicant was gay undermines her subsequent email to the Tribunal and the applicant’s claim that he has been subsequently rejected by her for being gay and having gay relationships.
The Tribunal also noted that it was the applicant’s evidence that he had engaged in relationships in Australia during the time he was living with [Ms D] (he told the Tribunal that he had a previous relationship in 2016 for a few months with a man called [Mr I], and in March 2018, six months before the September 2018 email, he had commenced his relationship with [his current partner]). The Tribunal put to the applicant that his relationships in Australia seemed to contradict her recent email. In response the applicant said that he did not disclose his relationships to her. Even if this was the case, the Tribunal does not consider that this response can explain the inconsistencies in the evidence put forward by the applicant from [Ms D]. The Tribunal notes that her initial statutory declaration gave no indication that she only accepted people as gay if they did not ever act upon their sexuality; instead the tone of the statutory declaration is very supportive of the sexual persuasion of her son and the applicant, specifically disagreeing with suffering being caused by the church to homosexuals. The Tribunal considers the two documents from [Ms D] to be inconsistent such that any supporting evidence from her is unreliable, and the Tribunal considers that the applicant’s attempt to rely upon such evidence also undermines his credibility and his assertion that he was “kicked out” of his residence with a Fijian family in Australia because of his homosexuality.
Eighthly, the Tribunal considered that the applicant gave inconsistent and changing evidence about his circumstances, friendships, activities and supportive relationships in Fiji, and downplayed his acceptance and circumstances in Fiji, in order to found a claim for protection, and that the photos and comments on his publicly available Facebook page do not support his claims.
It was the applicant’s claim that he was considered to be a pariah in Fiji because of his appearance/sexuality; that no one in Fiji supports or accepts him other than his gay friends (under 10 in number); he has no other friends, he had to move locations a lot because of rejection, he could not get a job because of how he is perceived, he was reluctant to be himself after the events of January 2013 and July 2013 ([Venue 1]s and [Venue 2] incidents). The Tribunal considered however that the circumstances as portrayed by the applicant’s own evidence, as well as from his public Facebook account and photos he posted to that account, undermine these claims, as set out below.
The contents of the public Facebook account
Discussions at hearing: At hearing, the Tribunal noted that it had accessed the applicant’s public Facebook account and that he had about [number] Facebook friends. He agreed with this and said that he has accumulated some friends since he arrived in Australia. He also said that about half of his Facebook friends (approximately [number] people) were from Fiji. The Tribunal put to the applicant that it would appear that while he was still in Fiji (and in Australia), he has been prepared to post photos where he appears gay and effeminate, and that he receives lots of likes for his posts. Further, his photos indicate that he is socialising with men and women; that he is having a good time; that he is not, as claimed, being ostracised and treated as worthless/ less than an animal in Fiji. He responded that he doesn’t know some of the people added as his Facebook friends. The Tribunal noted that even if that were the case, these people were publicly recorded as accepting him as a Facebook friend, they were not ostracising him.
The applicant also asserted that people would not be able to know his sexual orientation from the photos he posted; however when the Tribunal showed him some photos it had printed from his Facebook account, he changed his evidence and admitted that people could tell his sexual orientation and feminine appearance from his public Facebook account (for example he said that a photo posted [date] February 2013[11] shows him looking effeminate). The Tribunal noted that photos the applicant had posted in 2013 seemed to undermine his claims that he was reluctant to be himself after the [Venue 1]’s and [Venue 2] incidents. The Tribunal also noted the applicant’s Facebook post of [date] June 2013 showed the applicant and a man laughing together in close proximity, and that on [date] September 2013 the applicant updated his Facebook cover photo with a photo of himself and another man with their arms around each other.[12] In response the applicant said that they were just casual guys that he took photos with, they did not have a relationship. He also said that he doesn’t think it matters too much that he has posted photos of himself with men, and he didn’t think people would be able to tell from his photos that he is in a relationship. The Tribunal discussed with the applicant that other people had placed comments on his Facebook account such as “you guys look good together”. It said it did not understand why he would post such photos if he was worried about his safety and about the repercussions to him for being gay in Fiji. In response the applicant said it was just a social thing. When the Tribunal repeated that it did not understand why he would post such photos (while still in Fiji) noting his claim to have suffered significantly in Fiji, he said “it is not really a big issue for these people at home”. The Tribunal considers that this undermines his claims that homosexuality is a significant, adverse issue in Fiji and that he is considered a pariah and that he has suffered significantly and will continue to suffer significantly for the way he is.
[11] TF92
[12] TF83, 99
The Tribunal noted that there were quite a few Facebook friends from his hometown and village and there were also quite a few Facebook friends with his surname. The Tribunal put to the applicant that this indicates that there were and are people in Fiji, including family members, who accept who he is, which undermines his claim to have been ostracised by family and friends in the village/his hometown as claimed. He responded that he accepted them as a friend and he doesn’t know if they know too much about him. The Tribunal considers this response difficult to accept given the number of Facebook photos he has posted which show him appearing in female clothing/ with a handbag/ looking effeminate (and thus appearing “gay”/effeminate in his words). The Tribunal noted that there were lots of “likes” of his photos by people in Fiji including by people with the same surname. One of the photos (since he has been in Australia) shows the applicant naked except for [deleted] ([number] likes[13]); another shows him with [makeup] with a faint growth of moustache and goatee hair ([number] likes[14]). The Tribunal noted that the significant number of likes (including from people with the same surname and people from his home village) suggest that people, including relatives, do support the applicant being himself. In response he said that he thinks it was just like part of a social thing, they just clicked “like” on his photos but he doesn’t really know what is in their mind. The Tribunal has considered this response, but does not find it persuasive. It notes that these people have chosen to “like” photos of the applicant posing in a provocative “gay/effeminate” manner; the Tribunal does not accept the applicant’s suggestion that these matters are irrelevant to his acceptance in Fiji.
[13] TF70-68
[14] TF67-61
The Tribunal put to the applicant that having [number] Facebook friends in Fiji before he came to Australia does not seem to support his claim that he was ostracised and essentially completely limited in his ability to live his life in Fiji. In response he said that he doesn’t know some of those people very well, some are friends of friends, some are friends he knew from earlier stages of life and he decided to invite and accept them as friends. The Tribunal considers that this response does not detract from the applicant having [number] Facebook friends in Fiji, which the Tribunal considers undermines his claim that he is ostracised and viewed/ treated as lower than an animal.
Section 424A: The matters discussed above were, when required, also put to the applicant pursuant to s.424A of the Act after the hearing, including as follows:
·     According to his public Facebook account, his name [on] his Facebook page is feminine.
·     He has more than [number] Facebook friends in total and he told the Tribunal that about [number] are from Fiji. He received “likes” and approving comments for his posts.
·     He updated his profile picture/ cover photos on numerous occasions which show his looks, hair and feminine attire (which he said indicate that he is gay), and which show him with numerous friends and enjoying himself. His photos from 2011, 2012 and 2013, prior to him travelling to Australia, indicate that while he was in Fiji he was comfortable presenting himself as gay/with female attributes (such as [deleted]) and while in Fiji he had numerous female and male friends (who do not necessarily appear to be gay/ effeminate) with whom he socialised and with whom he appeared comfortable and happy and who appeared to accept him and socialised with him. For example:
oA Facebook post of [date] June 2011 shows him in what appears to be [female attire] walking along the street.
oA Facebook post of [date] June 2012 shows him with a group of men and women and he appears effeminate. Approving comments made on his post include “[deleted]” and also “[deleted]!!!!”
oA Facebook photo posted [date] February 2013 shows him [(with rainbow colours supporting LGBTI)].
oFacebook photos posted [date] February 2013 show him wearing a dress [with] his arm around a man who does not appear to be gay but who is allowing him to be close to him; and he is posing in a dress and taking a photo with a girl who is also posing; other photos show he is socialising.
oA Facebook photo dated [date] February 2013 shows his hair dyed (he told the Tribunal that he looks effeminate in this photo).
oA Facebook photo dated [date] March 2013 where he received comments such as “[deleted]”.
oA photo posted by him on [date] June 2013 shows him in close physical proximity with a man and both were smiling.
oA photo posted by him on [date] September 2013 shows him in close physical proximity with a man in that they had their arms around each other and were both smiling, and the approving comments accompanying that [photo].
oOn [date] August 2013 he updated his cover photo with a photo that shows him wearing [female clothing] with [women] who appear to be friendly towards the applicant.
It was noted by the Tribunal that the above appeared inconsistent with his claims that he was considered to be a pariah because of his appearance/ sexuality, that no one in Fiji supports or accepts him other than eight gay friends. It also indicated that he behaves how he wants, and dresses how he wants (including in feminine attire and with handbags), that he is surrounded by men and women and enjoying himself, and that he is accepted and people socialise with him and that he has more than just eight gay friends.
It also indicated that (while he was still in Fiji) his hundreds of Fijian Facebook friends could see his (effeminate/gay) lifestyle from his postings, and that these Fijians remained as his Facebook friends, suggesting that they do not reject him or his appearance or lifestyle, and undermining his claim that homosexuals are treated as animals and that no one supports or accepts him other than his eight gay friends.
In response, the applicant said that a large number of Facebook friends “came about” after he came to Australia. He did not provide even an estimate of how many new Fijian Facebook friends occurred after he left Fiji. The Tribunal had however put to the applicant at hearing its understanding that he had 800 Facebook friends before he left Fiji and he did not deny this at hearing. While the Tribunal is prepared to accept that he accumulated more Facebook friends (totalling now [number]) since he has been in Australia, this does not mean that he did not have a large number of Fijian Facebook friends ([number]) before he left Fiji.
The Tribunal considered the balance of his response, including that people might put positive or funny comments (which might not be sincere) supporting homosexuals “in the privacy of their computer” but out in society they will not support homosexuals. The Tribunal does not accept that posting “likes” or comments on a public Facebook page which has [number] Fijian Facebook friends is the same as posting something “in the privacy of their computer”. Further, the photos themselves indicate that the applicant was out socialising in public and that people were prepared to socialise with him.
The applicant also said that the photos show him with a “small number of people” and “it is not possible to judge whether they are gay or not”. The Tribunal notes that the photos show the applicant in groups of people ranging from two to seven, different, people. The Tribunal accepts that it is not possible for the Tribunal to judge if they were gay or not, but the applicant did not identify in his response who he was socialising with on each occasion, nor did he suggest that the only people in the photos were the people who he claimed were his only friends. This undermines his assertion that the only friends he has are limited to four friends and their partners and his denial that he has any other friends, no matter how casual.

114. The applicant claimed that he had made three attempts to obtain employment in Fiji but had not been successful because of his lack of qualifications and he didn’t want to apply for a job at the [workplace] because he didn’t want to work with family members, and because he was gay. He claimed he was only able to obtain babysitting jobs from his cousin [Ms E] and from a friend’s mother. Despite his claims to have not been able to obtain work, his evidence did not suggest that he was destitute and without support in Fiji: it was the applicant’s evidence that he had managed to support himself financially (noting for some years his parents have been deceased) by being resourceful (babysitting and selling [goods]), he obtained financial support from friends, and he obtained financial backing to apply for a visa and travel to Australia. Even in Australia it was his evidence that he lived for many years with a Fijian Christian woman who knew he was homosexual, as was her son, and that he was financially assisted by her for many years when he was not working in Australia. The Tribunal finds that the applicant has been supported by friends and family and it is satisfied that this support, and his own resourcefulness, will continue.
115. Further, the Tribunal is not prepared to accept his claims that he was unable to find a job because of his homosexuality/appearance/qualifications, on the basis of the adverse credibility finding generally, as well as the specific concerns with the claims relating to these jobs (inconsistent evidence as to whether [Ms E]’s husband screamed at him and forced him out of the job for being gay and inconsistent evidence as to how long he was in Suva, babysitting) as well as the Facebook posts indicating that he was working at a [workplace]. The Tribunal has not accepted that the applicant did not work in Fiji other than in babysitting, and finds that it is likely that, among other jobs, he worked in a [workplace]. Taking this into account, as well as the country information, the Tribunal is not satisfied that the applicant, on the basis of his appearance or sexuality (or qualifications) faces a real chance of serious harm or a real risk of significant harm for financial or economic reasons.
116. The applicant said to the Tribunal that he did not often go to church in Fiji, he said it was not compulsory; he attended perhaps once per month. In Australia the denominations are slightly different. He occasionally attends church. There are other Fijians who attend the church he attends in Australia. The Tribunal is prepared to accept these claims. The applicant did not claim that he experienced specific serious or significant harm while attending church (from Fijians either in Fiji or Australia). The Tribunal is prepared to accept that he will occasionally attend church in Fiji, and it accepts that there can be difficulties with conservative attitudes at church and that the church has had a negative impact on homosexuals in the past (and that the church has an influence on Fijian society). It notes the country information that there are some churches that embrace homosexuals while others are more conservative and disapproving. It noted however that he rarely attends church and the Tribunal is not satisfied that in the applicant’s particular circumstances, if he occasionally attends church in Fiji that he faces a real chance of serious harm or a real risk of significant harm from attending church in Fiji. The Tribunal notes that when it put to the applicant that it did not appear that he would face a real chance of serious harm or a real risk of significant harm, he did not seek to comment.
117. The Tribunal accepts the applicant’s evidence that he sometimes goes out to clubs and sometimes wears dresses and other feminine attire, and it is prepared to accept that he will do this again on return. It accepts that he can be perceived as effeminate and gay in everyday life. The Tribunal has noted its concern with the applicant’s significantly conflicting evidence as to how long he resided in Suva, it finds that he has been untruthful about the length of time he resided in Suva. One of the reasons for such untruths could be that the situation is better for homosexuals in some suburbs in Suva and that he has not been honest about this, which has been his experience. In the circumstances, the Tribunal considers that the applicant has been residing in areas of Suva where he has been for the most part accepted and has not suffered serious or significant harm, and that he will return to Suva, his last home area, or to similar areas.
118. The Tribunal has carefully considered the country evidence and whether, if he returns to Fiji, the applicant faces a real chance of serious harm or a real risk of significant harm for the reasons claimed.
119. The Tribunal put to the applicant at hearing that while accepting he is gay and presents as effeminate, if the events claimed in the past did not happen (as, at the time, the Tribunal had concerns but had not made up its mind), then it may be that similar events will not happen in the future. It noted that this is not the only factor to consider in looking to the future. It noted the country information including the DFAT Report and the country information submitted by the agent and noted that there has been instances of anti-gay discrimination and abuse and some violent attacks, and that although it may not be easy to live in Fiji as a homosexual, the Tribunal has to consider whether the conditions for this particular applicant will lead to him facing a real chance of serious harm or a real risk of significant harm. In response the applicant said that everything in his statement and interviews are things that really happened; he thinks that the differences between dates, and that he was moving around a lot, caused the problems with his evidence. The Tribunal has considered this in its credibility assessment but is not prepared to accept this. The Tribunal understands the applicant preferring to stay in Australia, which offers a more LGBTI-friendly environment than in Fiji (social acceptance and state protections).
120. While accepting that there is cultural and religious conservatism in Fiji; continued disapproval of LGBTI rights, particularly in rural areas; and instances of abuse or violence, the Tribunal notes that there are stronger legal protections than in the past, and greater social acceptance, particularly in urban areas and among younger people. The Tribunal finds that the applicant has not been subject to past harm as a homosexual or effeminate-appearing man in Fiji (or for reason of any associated particular social group), that individually or cumulatively amounted to persecution. It finds that in the future he will reside in Suva (or [other] areas) and will find employment in the towns or [other] areas; and the acceptance (and some tolerance and criticism) he received in the past from relatives, friends and society will continue. The Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution in Fiji, as a gay or effeminate-appearing man. It accepts that he may face some instances of anti-gay discrimination, overt or suspected; but it is not satisfied that these, individually or cumulatively, involve serious harm amounting to persecution. The Tribunal has considered the submissions that DFAT’s assessment of a moderate risk of societal discrimination meets the real chance test, and while the Tribunal accepts that there may be a real chance or real risk of societal discrimination, the Tribunal considers that the discrimination has been and will be taunts and name-calling and some rejection, which, although not acceptable behaviour, does not, in the Tribunal’s consideration, reach the level of serious harm or the definitions of significant harm.
121. While some gay men have on occasion been assaulted, the Tribunal is not satisfied that the applicant in his particular circumstances faces a real chance of being assaulted or seriously harmed as a gay man. The Tribunal accepts that the applicant, like other gay men in Fiji, is sceptical about official policies on LGBTI rights (including the Fiji Constitution’s ban on discrimination on the basis of sexual orientation), and is concerned by derogatory statements such as the Prime Minister’s observations on same sex marriage. The Tribunal notes the submissions that DFAT assesses there is a low risk of official discrimination which means that the applicant will have no state protection because of discrimination, however it appears that the police do respond to requests for protection, if made, and they do engage in investigations. As the Tribunal has found that the applicant does not face a real chance or real risk of being seriously or significantly harmed in homophobic violence, the Tribunal is not satisfied that the applicant faces a real chance or real risk of requiring access to state protection.
122. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, and while it accepts that he is an openly gay man who appears effeminate, having regard to the findings that the applicant is not a credible witness concerning past harm or future harm feared, as well as the relevant country information, and his circumstances, other than those claims accepted above, the Tribunal rejects all the various claims made and is not satisfied that he faces a real risk of discrimination (including social or employment), psychological, physical or other harm that involves serious harm amounting to persecution. It is also not satisfied, having regard especially to his past conduct, that the applicant ever has, or will need to in the future, modify his conduct or otherwise take measures in order to avoid persecutory harm. It finds that he does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by him, or on his behalf.
Complementary protection

123. 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) (see Annexure A, which provides a summary of the relevant terms).
124. The Tribunal has accepted that the applicant is a resourceful, gay male who appears effeminate and has been able to rely upon support wherever he goes and when he needs it. The Tribunal considers that the applicant, who has not been truthful about his work experience in the past in Fiji and who it considers has worked more than claimed, will again be able to work in Fiji and support himself. The Tribunal does not accept that the applicant has experienced any of the past harm or threats or adverse interest to the extent claimed although it is prepared to accept that he experienced some low level discrimination and taunts. It takes into account the above findings of fact, its view of his future conduct, and country information about the treatment of LGBTI individuals in Fiji. While accepting that he may again face low level discrimination and taunts, and noting there can be psychological impacts of social discrimination, it concludes that on the evidence before it, this applicant does not face a real risk of significant 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 faces a real risk of being subjected to significant harm (including from society or authorities), for any reason, if he returns to Fiji.
125. On the evidence presently before it, 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 a receiving country, in this case Fiji, there is a real risk that he will suffer significant harm for the purposes of 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).
126. 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

127. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - 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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2019] AATA 1874

17 February 2019

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction