1717041 (Refugee)

[2023] AATA 4386

1717041 (Refugee) [2023] AATA 4386 (29 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717041

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Damian Creedon

DATE:29 September 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 29 September 2023 at 4:12pm

CATCHWORDS

REFUGEE – Protection Visa – Fiji – political opinion – supporter of the Social Democratic Liberal Party – particular social group – person with access to confidential, information regarding key infrastructure – victim of violence and intimidation by Fiji military –unique nature of applicant’s job – credible witness – documented cases of abduction, abuse, and torture by the Fijian military – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5AAA, 36, 48, 91, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background:

2. The applicant, a [age]-year-old citizen of Fiji, applied for the visa on 18 April 2017.

3. The applicant’s most recent arrival onshore was on [date] March 2017 as the holder of a Visitor (FA 600) visa.  The applicant presently holds a Bridging visa, granted pending the outcome of his application for a Protection visa. 

   Protection visa application:

4. The applicant’s written claims for protection are set out in his protection visa application; they may be summarised as follows:

   a.The applicant travelled to Australia on a tourist visa

   b.He comes from a strong Christian background his father is a Minister in the Methodist Church in Fiji.

   c.The Fiji government believes that the Methodist church is a supporter of the Social Democratic Liberal Party (SODELPA) it has been discriminating the church and its followers.

   d.Due to this issue the applicant has opted to follow the Seventh Day Adventist church.

   e.He fears returning to Fiji because he believes that the authorities will find him, take him into custody then torture him, as he opposes the government. He is a strong supporter of the SODELPA.

   f.He cannot relocate anywhere in Fiji, as it is a small country, where he could be easily tracked.

   g.He could not obtain any protection from the authorities in Fiji as the military officers are linked to every authority of the government.

5. The applicant did not participate in an interview with the delegate of the Minister in connection with his protection visa application.

6. The delegate refused to grant the visa on 28 July 2017 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

7. The applicant applied for a review of the delegate’s decision on 4 August 2017.

   Application for review:

   Material before the Tribunal

8. The Tribunal has before it a range of material, including, relevantly:

   a.the applicant’s protection visa application forms;

   b.the applicant’s identity documents, being his Fijian passport;

   c.the delegate’s protection visa decision dated 28 July 2017 (delegate’s decision);

   d.the applicant’s application for review submitted to the Tribunal on 4 August 2017; and

   e.department file  [concerning] the applicant’s protection visa application, which includes all documents submitted to the department in support of his protection visa application.

9. Prior to the hearing the applicant provided the Tribunal with numerous documents and hyperlinks to internet-based information.  These materials fall within the following broad categories:

   a.copies of official documents;

   b.the applicant’s education and training achievements;

   c.[social media] pages belonging to third parties; and

   d.general country information.

10. The Tribunal has read and had regard to these materials.  The Tribunal does not propose to list and separately consider each item of information but to engage with it as needed to establish the broad themes which emerge. The fact that an item of information has not been specifically referenced in the Tribunal’s decision does not indicate it has not been considered.

11. Among the materials provided by the applicant is a statutory declaration made on 28 February 2018 (statutory declaration).  The statutory declaration comprises some 161 paragraphs across 30 pages and is structured into 20 parts, each with a separate heading.  The statutory declaration may be summarised as follows:

    a.Paragraphs [1] – [7] outline the general background to the applicant’s protection visa application, including that he was unrepresented when he made it, and his expectation that he would be interviewed by the department prior to a decision being made.

    b.In summary, paragraphs [8] – [12] state that the applicant was fearful of “writing down the real reasons” for his “initial” application and his understanding, after receiving legal advice, that he should have done so.  He expresses his concern that this misunderstanding may reflect upon his credibility.

    c.Paragraphs [13] – [17] outline the applicant’s family background.  In summary he was born in [City 1], Fiji on [date] and is one of [number siblings].  The applicant’s eldest sister passed away [at age].  The applicant’s other siblings are resident in Fiji.

    d.The applicant’s parents live in [City 2].  Until he retired, the applicant’s father worked as an [Occupation 1] at [Workplace 1].  He was also a preacher in the Methodist Church [in], [City 2].  The applicant’s mother was a “housewife”.

    e.Paragraphs [18] and [19] outline the applicant’s education history; in summary he completed his primary and secondary education in Fiji and, upon finishing school in [year], he began a [course] in January [year].  The applicant was “half way” through his course when [Employer 1] offered him and his brother positions at [Workplace 1] “as an intended replacement for [his] father”.

    f.In paragraphs [20] to [22] the applicant states that he was married on [date] January 2000 and that after completing a [qualification], his wife “was accepted” in [an] industry in Fiji.

    g.Paragraph [23] states:

    [My wife] and I have [number children]. [Details of children deleted]

    h.Paragraphs [24] – [28] relate the applicant’s employment between “the middle of [year]” and July 2009.  In this period the applicant commenced work with [Employer 1]  and progressed from a casual employee to a permanent employee, undertaking a variety of roles at [Workplace 1].  In October 2007 the applicant joined [Employer 2] as a [Occupation 2] and was responsible for [specified tasks].  Overall, the applicant’s employment history sets out his progressively responsible development during this period.

    i.In paragraphs [29] – [40] the applicant states that on 13 October 2009 he “joined [Employer 3]” as a  [Occupation 3].  He states his responsibilities in the following terms:

    32.     A major part of my work involved [working at a depot].

    33.     I would be sent to the [depot] every Saturday and Wednesday (unless I was on a weekend off) and the work there would be a whole-day operation. The work would include [deleted].

    34.     [details of work deleted].

    35.     [details of work deleted]

    j.The applicant states that his work at [Employer 3] was the cause for his decision to leave Fiji for Australia in fear for his life. 

    k.He arrived in Australia on [date] March 2017 on three months leave from [Employer 3] and sent a letter of resignation in June 2017. 

    l.He states that he left on good terms from the company.

    m.Paragraphs [41] to [51] outline the applicant’s political beliefs and party affiliation.

    n.The applicant remembers as a young child that his parents “were very strong supporters of the former Soqosoqo ni Vakavulewa ni Taukei (SVT) Fijian political party”.

    o.In addition to his parents’ example, the applicant cites two elements in particular which guided the applicant in his political views: that the SVT was endorsed by the Methodist Church and the Great Council of Chiefs.

    p.After the military coup in 2000 a new Fijian political party was formed, the “Soqosoqo Duavata ni Lewenivanua (SOL) also called the Fijian United Party”.  This new party was endorsed by the Methodist Church and the Great Council of Chiefs; the applicant states:

    45.     … My family were all behind the party as well, again because of my father's role in the church.

    46.     By this stage I was totally following the politics of Fiji and had started taking a keen interest in politics. I joined the youth wing of the SOL party and in [a] District, I together with the other committee members coordinated the invitation for the SOL youth meetings.

    47.     In the youth wing we organised our own fundraising activities and whatever funds we raised we gave to the parent SOL chapter to assist them in the election campaign. Our youth meetings were held at [a location]. Mr [A] was our youth wing leader and he was responsible for the running of the committee.

    48.     My role in the youth wing of the SOL was to take responsibility of the logistical part of the operations. One of my core duties was to coordinate the transport operations as we prepared for the election period. I had about 30 people to coordinate as they had volunteered their time and most importantly to drive their vehicles during the election period to transport voters from their homes to the polling booths and back.

    49.     I did this task by designating different people to different wards and through the campaign team, we were given the electoral rolls which had marked on it the names and addresses of the people we had to pick up. This was a very important task for me personally because I believed this was a responsibility that needed attention, as our success meant that voters would be transported to vote for the SOL.

    q.The applicant further states:

    50.     The elections that were held in early May 2006 was a very hotly contested battle between the SDL party and the Fiji Labour Party. I think to the best of my recollection that the SDL only won by 5 - 6 seats. We rejoiced that the SOL party had won because it represented the indigenous Fijians as well as the wishes of the Great Council of Chiefs and was very strongly supported by the Methodist Church of Fiji.

    51.     However, it was just a few months later in December 2006 when Voreqe Bainimarama carried out his military coup and brought Fiji to its knees again. Once Bainimarama's coup had taken place, the Fijian people were mostly shocked. This is because the 2000 coup led by Speight was against the Indian led Mahendra Chaudhry government. This was a coup led by a Fijian against a Fijian government.

    r.Paragraphs [52] – [64] outline an incident which the applicant claims occurred “two weeks after the coup”.  The applicant states that he and five other SOL youth members were preparing for a meeting [to] discuss the party’s response to the coup.

    s.He states that a “military [car]” stopped outside the meeting venue, two armed soldiers entered, asked the meeting participants to stand and took them away in the [car].  The applicant states:

    We were taken to the military base [which] is [distance] drive from [our meeting venue]. This is the camp that is commonly known as '[Location 1]'.

    t.At ‘[Location 1]’ the applicant and his companions were stripped to their underwear and made to participate in miliary drills.  Although starting with jogging, the applicant states that the drills became more aggressive; the applicant was intentionally tripped and then hit of the back with the butt of a rifle.  The applicant states that eventually he was taken to a cell; the applicant states:

    57.     There was no one else in the cell with me. I was questioned about the meeting, the reason why we were meeting and who had organised the meeting. The soldiers were quite aggressive in their questioning and told me that they knew who my father was and where my wife worked. I was threatened that my family could come to harm if I ever took any steps in being involved in saying or doing anything against the military.

    58  During the questioning, one of the soldiers put a sack over my head and when this happened, I thought that I was going to die. The other soldiers just kept threatening to do any number of things to me like putting my head under water, rubbing chillies on my body and beating me until I "confessed".

    59.     In my mind I was being tortured and felt close to collapse. The soldier removed the sack and then he hit me in the face. This shocked me even more. When the intimidation and beating stopped, I was taken to another room where my other colleagues were also brought in. A sergeant then came in and told us that we were in trouble because their military intelligence had information that we were going to plot against the military run operation in Suva.

    u.Eventually the applicant was released with the warning that “the military knew a lot” about him and his companions and that they would be watched.

    v.Paragraphs [65] – [68] detail the “next 10 years” of the applicant’s life; in summary the applicant states that there were no further incidents with the miliary; in his personal life, he became “disillusioned” with the Methodist Church and decided to join the Seventh Day Adventist Church; he states:

    68.     I believe after what happened to me at the time the military intimidated and subjected me to harsh and cruel treatment which I thought was like torture, the only thing that got me through was my new found faith and my belief in it. This gave me the strength to put things behind me and continue my life

    w.Paragraphs [69] – [89] detail two incidents where the applicant was detained by the military and taken to ‘[Location 1]’. 

    x.The first occasion, in “late October 2016”, occurred when the applicant had finished [work] and was approached by “two [military] personnel” and asked to attend their office; the applcinat did as he was asked, was escorted to a military vehicle and transported to ‘[Location 1]’.  The applicant states that, upon arrival he:

    71.     …was told to wait. I sat waiting and must have waited for at least 2 hours. Whenever I asked what was happening, the soldiers just told me to wait.

    72.     At about 10.00pm, I was told to go home. No one spoke with me as to why they asked me to attend the military office or what they wanted from me. When I asked the soldier at the front desk why they had made me sit down for so long, he just got very angry and told me to leave otherwise he will arrest me.

    y.In respect of the second occasion, on 31 October 2016, the applicant states:

    76.     …I had just finished work and was about to go across the [workplace] carpark when I was confronted by two military policeman (MP). They asked me to accompany them to their vehicle. I immediately knew that this meant that they were going to take me to [Location 1]. I asked them if I could phone and tell my wife that I was being taken to the camp. One of the soldier's grabbed my phone off me and pushed me towards the jeep.

    77.     I got in the back of the jeep and sure enough the vehicle headed towards [Location 1]. I was immediately thinking back to what had happened to me at the military camp years ago when the soldiers brutally attacked me and my SOL youth wing friends.

    78.     When the jeep arrived at [Location 1], I was immediately taken into an office and asked to sit down. I was left alone in the room for a short while when three soldiers walked in. One soldier looked in charge and was the sergeant. He sat down and told me that I was brought in for questioning. I asked what I had done and what the questions were about. The sergeant told me that I was to fully co­ operate with the military and nothing would happen to me, however, if I did not co-operate, then they would not guarantee my safety.

    79.     I was then questioned about my work at [Employer 3]. I was being asked about the operations at [Workplace 1] and more particularly about the [depot]. I was being asked [details of how I did my work].

    80.     I was very scared because these were all operational information and as employees of [Employer 3], these were confidential information. I told the sergeant that under my work obligations, I was duty bound not to divulge any information about my work. This was all part of confidentiality.

    81.     The sergeant and the other two soldiers did not seem too happy with my response. One of the soldiers immediately kicked my chair hard and I fell to the ground. The other soldier while pulling me up punched me in the stomach. I was quite fearful of what was happening and what was to come.

    82.     The sergeant told the other two to put me in the lock-up. The two soldiers manhandled and pushed me towards the cell. They pushed me in the cell and slammed the door shut. I was left alone in a darkened cell for what seemed quite a few hours. I honestly thought that they forgot about me.

    83.     After quite a while about four other soldiers came to the cell accompanied by what looked like a senior military soldier. He spoke to me in Fijian and told me that they did not want to hurt me. He said that I was going to be released very shortly and he wanted me to go home and think very hard about co-operating with the military.

    84.     The senior officer told me that I was to find out as much as I could about the entire [operations] of [Employer 3] and [other related employers] as well as the [depot] and the military would contact me in a week or so. He said that as an indigenous Fijian it was my duty to co-operate with the military as it was in the national interest. After this talk, I was released by the military. I was taken in a jeep and dropped back at the [workplace].

    85.     I went back home and told my wife and parents about what had happened. My father told me that he was very afraid as to why the military needed the information about [my job]. My wife told me to resign from my job, but in reality, I could not because my job was important for my family's livelihood.

    86.     I returned to work the next day and decided to keep quiet. As explained earlier in these submissions, if it became known at my work that I was taken in by the military for questioning, there was every likelihood that I would be made redundant.

    z.The applicant stated that the next “five or six” visits to [the depot] “went smoothly” and he was not “visited or picked up by the military”.

    aa.Paragraphs [90] – [124] outline a key aspects of the applicant’s narrative and, where relevant, they are reproduced in full:

    90.     About a month later towards the end of November 2016, I was working at the [depot] when a military [vehicle] stopped outside the gate of the [Employer 3 depot] . When I or any other employee are in the yard of the [depot], the gate is always locked and no other personnel is allowed in. [Deleted].

    91.     I could hear the vehicle's horn but at first I pretended that I did not hear that. was [working] and was very scared at what the soldiers would do to me. I just continued working as the rules of our work was no matter what, we were not to open the gate during this process. If there was a need for an employee or management to enter the depot area, they would have the keys to the gate and only authorised personnel could enter in any event.

    92.     I was surprised that the soldiers had turned up on my shift and was wondering how they knew that I was at the  [depot]. The only thing that I could think of was that either they had an inside informer, who would tell them about the shift I worked or that they had their own intelligence who was monitoring everything that I did.

    93.     After a while, the vehicle stopped blowing the horn and it seemed that the soldiers had decided to just park and wait. I still had about an hour of [work] to do and was under immense pressure. I was very afraid. I decided to phone my immediate supervisor and at least inform them as to what was happening.

    94.     I phoned [Mr B] and advised him as to what was happening. [Mr B] told me that under no circumstances was I to open the gate. He said that he was going to come over immediately.

    95.     I continued [working] and when I finished, I did all that I would normally do to complete the logging process and the official shut-down process. I decided that under no circumstances was I going to go out in the yard because I was fearful that I would be taken to [Location 1] and beaten badly.

    96.     After a while, I saw [Mr B]'s vehicle arrive and saw him get out and start speaking to the soldiers. In just a few minutes, the soldiers left in the vehicle. [Mr B] entered the yard and when he came to me he told me that he was worried about me. The soldiers had told him that they wanted to speak to me about "something" and th.at they only left because he told them that the depot area was out of bounds.

    97.     [Mr B] told me that I should return to the office [and] file a written account of what transpired that day. He said that he would immediately raise the issue in the management meeting later that day. He questioned me as to whether the military had questioned me previously but I denied any such previous meeting because I thought that if I told the truth, by the time I got back to the [office], my termination letter will be ready.

    98.     When I got back to the office, [Mr B] took me aside and spoke to me. He was very concerned and told me that I was an important member of his team and that if there was anything that I needed to discuss, I could do so with him. I just told [Mr B] what had occurred that day and that I had no idea why the soldiers turned up.

    99.     I put in my written report and handed it to [Mr B] and apparently that afternoon the management meeting decided that for the time being, they would roster two people to go to the [depot]. [Mr B] attended the management meeting and told them that he had spoken to me and that that was all that had transpired. The management thought that it may have been an isolated incident.

    100.   I was sent on a week's leave with full pay as the management thought that what I had encountered was a stressful situation. I just stayed home during the week and did not go anywhere.

    101.   All through the time that I stayed home, I just kept asking myself, why me? I just could not understand why the military needed the [information]. When I returned to work, my supervisor asked me if I was ready to resume duties, I replied yes. I was told that should anything occur in the future, I was to immediately phone him or any of the other supervisors.

    bb.The applicant states that “just after Christmas” in 2016 he was again “picked up” by the military, this time from his home on a “rostered-day-off”.  The applicant was transported to [Location 1]; the applicant states:

    106.   As soon as we reached [Location 1], I was told to get off and was immediately pushed towards the military exercise yard. I was then told to strip down to my underwear. The soldiers then asked me to start jogging. As I was jogging, there were two soldiers in front of me, two on either side of me and two behind me.

    107.   During the jogging, they would get me to drop to the ground and start doing push-ups, then get up and jog again, drop down and do sit-ups and jog again. In between the exercise, the soldiers, who were all holding rifles, would prod and poke me and give me a hard shove with the butt of their rifles. At their exercise yard, there is an area that is like a dirty slushy mud pool. The soldiers made me get on my stomach and crawl through the mud and slush.

    108.   This exercise and ill-treatment must have continued for something like half an hour. When this finished, I was taken to an area where I was made to stand for about 20 minutes. The soldiers all went inside and others just went about doing their own thing. I was standing only in my underwear and was dirty with the mud and slush all over my body.

    109.   When the soldiers who had done the exercise drill with me returned, one of them opened a fire hose on me. This was not an attempt to clean me but was another cruel act upon me. The force of the water was hurting me and I just kept turning to protect myself but could not shelter as whichever way I turned, I was met with the force of the water. I suddenly fell to the ground and seemed to have blacked out for a moment.

    110.   The water-blasting stopped and I was dragged up on my feet. I felt weak and battered as if I was bashed on all sides. l just felt bruised and was in a lot of pain. A soldier brought my clothes and told me to dress up. I was then made to stand in the hot sun and was told that I should not at any time squat or sit down.

    111.   I lost count of the time and standing in the hot sun was so hard as I was already in severe pain. I just did not know what to do except to follow orders. I was praying all the time and was seeking the help of my God in this ordeal that I was facing.

    112.   After what seemed to be a long time, a soldier took me inside and placed me in a locked cell. I was told to wait and someone was going to come and see me soon. I just lay on the bare floor and seemed to have dozed off in the pain that I was in. I felt as if though I had suffered a sun stroke as well. By this time, I lost all record of the time.

    113.   After some time, I heard the cell door open and two soldiers came in with a chair. They sat me down and tied my hands and feet and put a jute sack over my head. I was in a panic attack. It felt suffocating and I was really scared of what might happen next. My mind flashed back to the incident of years ago.

    114.   After a short while, I heard a new voice. I was spoken to in Fijian and the person said that he was a captain in the Fiji army and for security reasons, he could not show his face to me. He said that I should have known by now why I was put through such an ordeal. When I answered that I did not, someone just punched me on the side of the face. I could feel myself going off-balance but someone steadied my chair. The punch was so powerful t_hat my face was stinging with pain.

    115.   The captain then spoke. He said that the military had picked me as their man, because they thought that as an indigenous Fijian, they expected me to support them. He said that under the military rule, the life of all Fijians had improved and my life was no different. I was told that the military knew about my wife, our children, my parents etc.

    116.   I was told that the high command in Suva had wanted information and I was the person to provide the information to them. The captain told me that the military was going through an exercise where they wanted intelligence data and information about all the key installations around Fiji. He said that in the event of another crisis, the military had decided that [a specified] process was going to be a vital area of concern. The captain also stated that the [depot] was crucial because in the event of another crisis in Fiji, the military could do any number of things "including [deleted]".

    117.   This sent shivers down my spine as I never thought the military was going to [do such things]. What followed next was not only shocking to me but also provided the answer to my troubles.

    118.   This captain then said that their intelligence had showed them that the current military supported regime of Bainimarama and Khaiyum would lose the next elections under their Fiji First banner and should this happen, the military would have no hesitation in carrying out another coup. He said that if the military carried out another coup, it would look at the people who had assisted them in the past. The captain said that as a result, the military wanted to know that they could count on me and at the time of crisis, I would be counted upon to [follow their instructions].

    119.   The army captain told me that the military had "appointed" a number of key personnel for so many of the various important installations and when the time came, these people would be elevated to high posts. I was told that all I had to do was to "come on board" and the military would look after me. He said that they did not want to hurt or harm me but if I kept on refusing to co-operate, they would have no choice but to "get rid of you" because now I knew what the military was planning.

    120.   The captain told me that they would be monitoring me and in so far as they were concerned, they looked at me as a key person. In the event I decided to go against them, they would detain me and if I was lucky, they would take me to the interior of the Sabeto Mountains and drop me there so that I would have to fight of attacks from the wild pigs. He said that way the pigs would finish me off and they would not have to worry about disposing my body off.

    121.   The captain then stated a number of things, amongst those were:

    •    That the military knew my family and I supported the SODELPA party and that I should stay away from any future party gatherings or fund raising activities, otherwise I would be brought straight back to the camp.

    •    That when I returned home later that day, I should ask my wife what happened at her work place.

    •    That they knew that my father had a lot of influence in my village and that I should stop my father from speaking in favour of the SODELPA party.

    •    That they had not as yet questioned me about my motives in changing my faith. The captain said that their intelligence suggested that I had joined the Seventh Day so that l could work from inside to grow more support for SODELPA.

    •    The future harm that would fall on me and my family if I did not support their call and cause.

    cc.Ultimately the applicant was released by the military and was taken to a “private” medical practitioner for treatment.  He states that he was told by the practitioner that no records would be kept of his treatment, as to do so would be dangerous for the doctor and the applicant.

    dd.Paragraphs [130] – [161] deal with the aftermath of the applicant’s December 2016 experience.  In summary, in consultation with his family, he resolved to “get out of Fiji” by applying for a visa to travel to Australia.  The applicant states that:

    142.   Just a fortnight after my departure, I contacted my wife as part of my regular contact. She told me that a van load of soldiers had come home that morning looking for me. When she told them that I was in Australia, the soldiers got very angry. They started swearing in Fijian and left.

    143.   A week after this incident, my wife was taken to the police station [and] questioned about my departure from Fiji. She was asked when I had applied for a visa, when the visa was granted and most importantly who it was that assisted me in removing my name from the airport watch list.

1. The Tribunal has read and had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Fiji, 20 May 2022 (DFAT Report).

2. The Tribunal has also read and had regard to a number of other sources of country information which are set out in the course of the Tribunal’s analysis below.

   Applicant’s oral evidence

3. The applicant appeared before the Tribunal on 28 September 2023 to give evidence and present arguments.  Where relevant the applicant’s oral evidence to the Tribunal is referred to below.

   Country of reference:

4. The applicant claims to be a citizen of Fiji. Based on evidence provided to the Department by the applicant, namely his passport, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

5. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

   Country information:

   General

6. The DFAT Report summarises Fiji’s political system in the following terms:

   2.28      Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.

   2.29      There are 14 provinces and one dependency (Rotuma, a group of islands about 500 kilometres north of the main Fiji islands, about halfway between Fiji and Tuvalu) as well as 13 municipal councils. Provincial councils for iTaukei residents also exist in some places, sometimes with the input of traditional village headmen. Provincial and local governments are appointed, not elected.

7. BBC News’ Fiji Country Profile[1] outlines Fiji’s current political leadership:

   [1] BBC News, Fiji Country Profile, < Jioji Konousi Konrote

   Jioji Konousi Konrote was elected as president in October 2015. He is the first non-indigenous president and the first to be elected by parliament. Previous presidents were selected by the Great Council of Chiefs (GCC).

   He has had a long career in the military, government and diplomatic service.

   Prime Minister: Sitiveni Rabuka

   Sitiveni became prime minister in December 2022 following general elections in which opposition parties reached a deal to form a new coalition government, ending Prime Minister Frank Bainimarama's nearly 16-year rule.

   Fiji's coalition government has broader regional significance. Both parties have signalled a desire to cool relations with China, which has been steadily increasing its financial and diplomatic interests in the Pacific.

   Mr Bainimarama came to power in a 2006 coup, one of a series of political upheavals since Fiji gained independence from the UK in 1970. The rivalry between the indigenous Fijian and the ethnic Indian communities has been at the root of much of the tensions.

   In 2013 the constitution was changed to remove a race-based electoral system that favoured indigenous Fijians over the country's large Indian population.

   Mr Rabuka is a former international rugby player who was the leader of Fiji's first coup in 1987, which came after tensions between indigenous Fijians and ethnic Indians. He served as prime minister in 1992-99.

8. In an assessment of the ‘Judiciary and access to law’ the DFAT Report notes that:

   5.17     Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021.

   5.18      The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.

   5.19      Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.

   5.20 The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. It provides services in family, criminal and civil law and may file out briefs to private lawyers who may volunteer their time and expertise. Eligibility criteria apply, with an annual income threshold of FJD15,000 (about AUD10,000). The Commission has recently increased its geographic outreach and more people, including in rural and maritime areas of the country, are now able to access its services. There may be few other lawyers practising in more remote areas, which may in practice mean that people cannot access representation, especially where Legal Aid is already acting for the other party. The quality of legal services provided by legal aid is variable.

9. On the ‘Treatment of Returnees’, the DFAT Report assesses:

   Entry and exit procedures

   5.27      Fiji’s main international airport is in Nadi and a smaller international airport exists in Nausori (about 30 minutes’ drive from Suva), both on Viti Levu. In practice, many Suva passengers take shuttle flights to Nadi. Passengers must present their passport, visa if required and an arrival card to an immigration officer. Passengers are also subject to customs and quarantine inspections. Corruption is unlikely. Most people entering Fiji obtain a visa on arrival; visitors are largely from Australia and New Zealand, and, to a lesser extent, from other Western countries.

   Conditions for returnees

   5.28      DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.

10. In a 2016 report,[2] Amnesty International makes the following observations regarding the military in Fiji:

    [2] See: “Beating Justice: How Fiji’s Security Forces Get Away With Torture” < Fiji government has candidly acknowledged that “there have been a series of allegations pertaining to police brutality and the torture of detained persons. Such incidents have occurred for as long as the Police Force has been in existence.”2 In October this year, the Prime Minister,3 the Attorney-General4 and the Police Commissioner5 expressed publicly a commitment to end torture and other ill-treatment. Fiji’s ratification of the Convention Against Torture and other Cruel, Inhuman or degrading treatment or punishment (CAT) in March 2016 is a positive step towards fulfilling these commitments. However, these words must be followed up with action to change ingrained attitudes within the security forces and ensure full accountability for torture and other ill-treatment.

    Often suspected criminals and escaped prisoners are most at risk of human rights violations in custody, and there is little sympathy for them when reports of torture or other ill-treatment emerge. Brutality by the security forces has resulted in at least five deaths since 20066 and other severe injuries, including one person having their leg amputated. The security forces have resorted to using excessive and unnecessary violence against suspected criminals or escaped prisoners in policing operations including beatings, rape, sexual assault, use of chillies, sticks or batons, attack by police dogs, and the use of firearms to shoot at people.

    However, witnesses and lawyers also raised concerns about threats and intimidation against them, showing that the problem is not exclusively limited to abuses against persons in custody. Lawyers report that people in custody are likely to be subjected to intimidation, coercion to sign confessions; are denied prompt access to medical treatment, family and lawyers on arrest; and are not told their rights or immediately brought before a court to challenge their detention.7 While there are many recent cases where confessions have been rightly excluded on the basis that they were forced under duress, there remains a clear risk that accused persons who are in fact intimidated, assaulted, tortured or otherwise ill-treated by police are not believed and are then convicted on the basis of false confessions made involuntarily.8 These measures are not only essential to the right to a fair trial of an accused; they are important safeguards to protect from torture and other ill-treatment.

    The lack of independent oversight and near-impunity for such crimes increases the risks of torture and other ill-treatment occurring. The police are effectively left to police themselves, and the military has interfered with policing investigations where it involves military officers as alleged perpetrators. The Commissioner of Police, Commissioner of Corrections and Commander of the Royal Fiji Military Forces (all senior military officers) have the discretion to appoint, remove and discipline their own officers and report to the Minister for National Security and Defence. This lack of independent oversight of the security forces, and blurred lines between functions and roles hampers their ability to independently investigate abuses when they do occur.

    The close ties between the police and the military is in part due to Fiji’s political history, which has been plagued by ethno-political conflict and interspersed with military coups in 1987, 2000 and 2006. This has resulted in the military playing a direct role in the executive and legislative branches of government, as well as in civilian policing. This has not changed significantly since elections in 2014. Military officers continue to be appointed to senior government roles, including as head of corrections and head of police, which not only militarizes these posts, it also brings into question their independence and ability to hold its officers, including military officers, accountable for human rights violations when they occur. In addition, the most serious cases of torture and other ill-treatment arose from a joint military-police taskforce, whose chain of command is not clearly established within the police force.9 When the military is involved in policing matters, human rights violations are more likely to occur and they are less likely to be held accountable for their actions.

    Another key issue is impunity for torture and other ill-treatment. Following each coup, the incoming legal order has entrenched immunities in law thereby ensuring, for the most part, that the military is above the law. For example, Fiji’s current Constitution entrenches immunities for any government action between 2006 and 2014, and reaffirms immunities for events surrounding the 2000 coup. Therefore, victims of human rights violations that occurred as little as two years ago are left with no justice.

    Recent attempts by the Fijian authorities to improve accountability of police officers have included initiatives such as human rights training and introducing recording facilities in some interrogation rooms. However, as this report outlines, there remain significant gaps both in the current legal framework as well as in the implementation of laws and policies in practice. The new initiatives, although they represent some progress, do not go far enough in changing the ingrained culture within the security forces to ensure that resorting to torture and other ill-treatment is never acceptable.

    The culture of impunity is reinforced by inconsistent leadership by senior government officials. Prime Minister Bainimarama (who was Commander of the Royal Fiji Military Forces from 1999 to 2014, now retired) and Police Commissioner Brigadier-General Qiliho, have both previously expressed support for military and police officers when allegations of torture come to light.10 Recent strong statements condemning torture must be understood in this context, and followed up with full accountability in order to deter future acts of violence by the security forces.

    Under the military’s dominance, Fiji has seen an ingrained culture of torture take root among its security forces, a new Amnesty International report says today.

    Famed for white-sand beaches and sweeping views of turquoise water, Fiji is known to many as a holiday destination. But over a decade since the 2006 coup, the military remains in control of key institutions, including the police, with a militarisation of the justice system that allows torture and other ill-treatment to go unpunished.

    The new Amnesty International report, details how uniformed officials on Fiji’s islands have inflicted severe beatings, rape and other sexual violence, attacks by police dogs, shootings and other forms of torture and ill-treatment or punishment in violation of international law. …

    In an October 2016 speech, Prime Minister Bainimarama said that the culture of “what we call the buturaki – the beating – is deeply ingrained in parts of the Fijian psyche.”

    Beatings are among the most common form of torture and other ill-treatment used by the Fijian security forces, especially against suspected criminals and prisoners who have escaped. The report details five cases where people were beaten to death, succumbing to injuries sustained while in custody. …

    Threats and violence have also been used to intimidate people and coerce confessions. In a series of cases highlighted in the report, the courts found the accused had been forced to sign confessions after being tortured by the police.

11. The report blames an "ingrained culture of torture" in security forces in Fiji, detailing uniformed officials being involved in acts of extreme violence, rape and sexual assault and even murder with "near impunity”.

12. In 2019, Radio New Zealand reported that:[3]

    Amnesty International says the Fiji military has not been held fully accountable for cases of torture and has played a role in obstructing justice.

    Fiji's Military has been facing questions from a parliamentary committee over torture as the country looks to comply with the International Convention for the Protection of All Persons from Enforced Disappearance.

    The FBC News reports a senior military member confirmed those involved in any kind of torture during past political events has been dealt with accordingly and continuous training is done to educate officers about laws and rights.

    However Amnesty's Fiji based Pacific Researcher, Roshika Deo, said these claims are misleading and lack transparency, with members of the military investigating each other.

    "One of the things we want to emphasise; a lot of the military officers, including other security officers, that have been involved in cases of torture and brutality and some of which have resulted in the deaths of the young men that have been victims of this, there has not been full accountability."

    "In fact the military has interfered in many different ways to circumvent justice or to obstruct justice," she said.

    Roshika Deo said Amnesty was calling for repeal of the constitution and other legislation that offers immunity to security forces relating to torture, and prevents victims from bringing forth cases and pursuing accountability.

    [3] See: Radio New Zealand, “Amnesty calls for transparency of Fiji military and torture cases”, <>

    A 2022 analysis by the Australian Institute of International Affairs[4] notes that:

    Between 2015 and 2020 400 criminal charges were laid against Fijian police or military officers. Sixteen were for rape, two for murder, nine for manslaughter and five for abduction. There were also 100 charges of assault. Fiji’s independent Coalition for Human Rights was alarmed but not surprised by these figures. They were followed by the Office of the Director of Public Prosecutions reporting that in January 2022 68 people were charged with serious (non-sexual) offences. Eleven of these were police officers.

    There is no published record of how many of these charges lead to convictions. Newspaper reporting is limited to a small number of especially egregious cases. …

    Responding to the Director of Public Prosecutions’ 2020 figures on the number of charges against police and military officers, the President of the Fiji Law Society made the obvious democratic observation that:

    “An effective police force is the bedrock on which peace, law and order are maintained. These things are among the greatest gifts any society can offer its people. So, any public body concerned with rule of law must be concerned about the effect of these allegations on public confidence in the police force as an institution.”

    The broader point is that Fiji is a conditional democracy. The democratic norms of free speech, a free press, freedom of association, freedom of religion, conscience and belief, and the public operation of criminal courts may at any time be overridden.

    [4] See: “Police Violence In Fiji: An Endemic Problem With No Simple End In Sight” <>

    In report prepared for the Immigration and Protection Tribunal of New Zealand addressing, inter alia:

    … the capacity of the Fijian police to respond effectively to emergencies or calls for help,

    Distinguished Professor Steven Ratuva of the University of Canterbury, New Zealand[5] notes the following (citations omitted):

    6.1 ... the Fiji Police is a largely inefficient force which has not been able to effectively address the ever-increasing crime rate as well as respond quickly to emergency calls. They have been continually criticized for their inaction and unprofessional conduct as law enforcers. Part of the reason has to do with the way it has been militarized since the 2006 coup ….

    6.2 Since taking over power by force on 6 December 2006, the military imposed a state of emergency and gave itself power to suppress freedom of expression. ... The military imposed control over the police force and used it to serve its "security" interests.

    …

    6.18 Because of the political control over the police, its professional role as law enforcement agency and protector of innocent citizens has eroded dramatically. This is evident in its inability to respond effectively to the increasing crime rate in the country, which has caused "serious concerns".

    [Tribunal’s emphasis.]

    [5] Dr Ratuva, Professor of Anthropology and Sociology and head of the Macmillan Brown Centre for Pacific Studies at the University of Canterbury. Dr Ratuva states that he has carried out research and written extensively about Fiji in the areas of politics, culture, ethnic relations, religion, affirmative action and development. He also states that he has quite comprehensive knowledge of the Indo-Fijian culture and communities having done research and written about it, as well as worked with the community for decades. In 2016 he was commissioned by the Fijian government to carry out a major review of the sugar industry master award between farmers and millers, a project funded by the EU, that involved a comprehensive survey and analysis of the sugar cane farming community and his visiting isolated farms, including in the appellant’s home district, and talking about their issues and challenges; see generally: < HA (Fiji) [2019] NZIPT 801634.

1. A recent article in the Fiji Times[6] notes the following comments from Professor Ratuva:

   [6] “Economic Recovery Effort”, The Fiji Times, 24 December 2022, < the Republic of Fiji Military Forces directly or indirectly to maintain security could have far-reaching ramifications internally and could also impact on tourism and investment during a critical time – Fiji’s economic recovery effort from the financial crisis caused by the COVID-19 pandemic.

   This according to Fijian academic and director of the University of Canterbury’s Macmillan Brown Centre for Pacific Studies Professor Steven Ratuva.

   “Given our dark history of military intervention, getting the military involved either directly or indirectly to assist the Police will send out an extremely chilling message to our coup-traumatised population as well as destroy our reputation once more in the eyes of the rest of the world apart from impacting on foreign investment, tourism and wellbeing of the nation,” he said.

   Prof Ratuva said social media discourse on details of “threats against minority groups” and campaigns to highlight how all the races in Fiji live in harmony to a large extent should not be ignored.

   “The people’s verdict and voices need to be respected.

   “There is consensus that there’s no ethnic violence contrary to police claims.

   “The military commander as a respected professional should maintain his impeccable international status and promises to the people and push back on attempts from outside the military to involve his men. The Fiji population is traumatised just by the mere mention of the term ‘military’ given the history of coups in Fiji.

   “Let the politicians and legal organs of the state sort out the political crisis, no matter how messy it is. We’ve seen worse around the world and I’m sure there’s enough resilience in Fiji to get us through.”

   Prof Ratuva was responding to a statement by Police Commissioner Brigadier General Sitiveni Qiliho that because of “threats made against minority groups who are now living in fear following recent political developments”, a decision was made to call in the Republic of Fiji Military Forces to assist police with the maintenance of security and stability.

   [Tribunal’s emphasis.]

2. According to the Executive Summary of the United States Department of State’s 2022 Country Reports on Human Rights Practices: Fiji:

   Fiji is a constitutional republic. On December 14, the country held a general election in which a coalition of the People’s Alliance Party, the National Federation Party, and the Social Democratic Liberal Party won control of parliament and Sitiveni Ligamamada Rabuka became prime minister. International observers assessed the election process as free, transparent, and credible.

   The Fiji Police Force maintains internal security. The Republic of Fiji Military Force may be assigned some domestic security responsibilities in specific circumstances. The police force reports to the Ministry of Defence, National Security, and Policing; the military reports to the president as commander in chief. Within the limits of the law, civilian authorities maintained effective control over the security forces. There were reports members of the security forces committed numerous abuses.

   Significant human rights issues included credible reports of: cruel, inhuman, or degrading treatment by government agents; serious restrictions on freedom of expression and media, including censorship; substantial interference with the freedom of peaceful assembly; serious and unreasonable restrictions on political participation; lack of investigation of and accountability for gender-based violence including but not limited to domestic and intimate partner violence; significant barriers to accessing sexual and reproductive health services, including coerced abortion or forced sterilization of persons with disabilities; and trafficking in persons.

   The government investigated some security force officials who committed abuses and prosecuted or punished officials who committed abuses elsewhere in the government; however, impunity was a problem in cases with political implications.

   …

   The constitution and law prohibit torture, forced medical treatment, and degrading treatment or punishment.  The Public Order Act, however, authorizes the government to use whatever force it deems necessary to enforce public order (see section 1.d.).  There were reports security forces abused persons.

   The police Internal Affairs Unit is responsible for investigating complaints of police misconduct.  As of September, the Office of the Director of Public Prosecutions charged 59 officers with various forms of misconduct, including assault, causing grievous harm, abuse of office, use of illegal drugs, unlawful wounding, and wrongful confinement.  Investigations into police abuse often took years to complete; judicial proceedings were equally prolonged and seldom resulted in convictions.

   On May 16, a policeman was filmed in Labasa, on Vanua Levu Island, assaulting a bus driver who had allegedly resisted arrest for unknown causes.  On May 17, the Guardian newspaper reported the incident was seen and recorded by Lenora Qereqeretabua, a member of parliament.  The officer involved was suspended from duty.

   On September 14, the High Court began trial proceedings for four police officers charged for assaulting a man, age 32, and throwing him off a bridge in Naqia Tailevu in 2020.  The man allegedly broke COVID-19 curfew rules.

   Impunity remained a problem in the security forces in some politically connected cases.  The constitution and POA explicitly provide immunity from prosecution for members of the security forces for any deaths or injuries arising from the use of force deemed necessary to enforce public order.  The constitution also provides immunity for the president, prime minister, members of the cabinet, and security forces for actions taken related to the 2000 suppression of a mutiny at military headquarters, the 2006 coup, and the 2009 abrogation of the 1997 constitution.

   There is no independent oversight mechanism for the security forces.  The law requires the consent or approval of the police commissioner to begin any investigation into, or take any disciplinary action against, a police officer.  Authorized investigations were usually conducted by the Internal Affairs Unit that reports to the police commissioner, who decides the outcome of the complaint.  If the commissioner decides there is a criminal case, it is referred to the public prosecutor for further action.  Information regarding the number of complaints, investigatory findings, and disciplinary action taken was not publicly available.

   Slow judicial processes contributed to an impression of impunity, especially in police abuse cases.  For example, trials had yet to conclude for the alleged 2019 police beatings of Pelasio Tamanikoula and Manasa Rayasidamu.  The three officers accused in the Rayasidamu case were suspended from duty and charged with causing grievous harm.  Other unresolved cases dated back as far as 2017.

3. The Tribunal has also read and had regard to the following country information

   a.Articles on police brutality:

   i.“Rights Commission Looking into Fiji Police Brutality Claim”, Radio New Zealand, 28 April 2020;[7]

   [7] See: < Police Officers Charged in Fiji – Report”, Radio New Zealand, 7 July 2020;[8]

   [8] See: < Police Brutality Investigations Underway in Fiji”, Radio New Zealand, 14 May 2020;[9]

   [9] See: < Act Now Calls on Authorities to Investigate Disturbing Viral Video”, Fiji Act Now, 15 December 2020;[10]

   [10] See: < Anthony, “Fiji Death in Custody Reignites Debate Over Police Brutality” The Guardian, 10 November 2020;[11]

   [11] See: < Anthony, “Investigations into Police and Prison Violence Blocked by Fiji Authorities, Whistleblowers Say” The Guardian, 30 August 2020;[12]

   [12] See: < Deo “Person Who Posted about Alleged Police Brutality is not Forthcoming – Raj”, Fiji Village, 31 December 2020;[13]

   [13] See: < McDonald “A Spotlight on Police Brutality in Fiji” The Diplomat, 30 November 2020.[14]

   [14] See: < about other police failings, including inaction and corruption:

   i.J Benedict “Fiji’s Review at the Human Rights Council Highlights Lack of Progress on Civic Freedoms”, 29 November 2019;[15]

   ii.D Deo “Man Claims of Police Inaction After a Break-in at His House in Davuilevu Housing”, Fiji Village, 15 July 2020;[16]

   iii.D Deo “Former Senior Police Officer Sentenced on Bribery Charges”, Fiji Village, 17 October 2016;[17]

   iv.R Rainima “Police officers and businessman front court for bribery”, FBC News, 3 February 2016;[18]

   v.A Vakasukawaqa “Inaction by Police Shows Weakness”, The Fiji Times, 3 October 2019;[19]

   vi.R Pratap “Fiji Police suspends five officers pending two investigations”, FBC News, (11 November 2020);[20]

   vii.“Beating Justice: How Fiji’s Security Forces Get Away with Torture” Amnesty International, 4 December 2016;[21]

   viii.S Chanel “Fiji Warned on Failings at Home After Winning UN Human Rights Council Role”, The Guardian, 19 January 2021.[22]

   [15] See: < See: < See: < See: < See: < See: < See: < See: < of evidence:

   Overview

4. 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 an 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. 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 (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

5. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

6. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

7. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Analysis:

   General

8. The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.

9. In assessing the applicant’s circumstances the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[23]

   [23] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

10. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[24]

    [24] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

11. The Tribunal found the applicant to be a credible and truthful witness who, where possible, supported his oral statements with documentary evidence.  The Tribunal found the applicant’s oral evidence to be consistent both internally and with his statutory declaration.  In giving his oral evidence he did not convey an impression of concoction or recent invention.  Notably, when pressed the applicant was able to provide the Tribunal with persuasive detail as to his roles and responsibilities both as an  [Occupation 3], and employee of [Employer 3], and as to his experiences of violence and intimidation at the hands of the Fijian military.  The applicant’s emotion when describing these latter experiences was evident to the Tribunal; in respect of his reaction to them he described himself on a number of occasions as having suffered “trauma” and as being “traumatised” by them. 

12. When pressed as to whether, after some six years abroad, and no longer having access to key information, the military would still be interested in him, the applicant stated his belief that they would as he would be perceived as still possessing information of relevance to them and, moreover, as having defied them and “run overseas”.

13. In assessing the applicant’s evidence, the Tribunal is mindful that:

    a.there are natural limitations to human memory, and a persons’ recall of dates, and the frequency and duration of events, is often reconstructed from inference, estimation, and guesswork;[25] and

    b.survivors of torture and trauma may suffer from loss of memory, disassociation, and difficulty in concentration, which compromises their ability to present a convincing narrative of their experiences.[26]

    [25] W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; Bello v Sweden [2006] ECHR 32213/04.

    [26] C Rousseau, et al, “The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board” (2022) 15(1) Journal of Refugee Studies.

14. Ultimately, however, these claims remain uncorroborated, and it is impossible for the Tribunal to be satisfied in respect of them on balance of probabilities.  The Tribunal therefore accepts that there may be doubt about the veracity of this aspect of the applicant’s claims.

15. The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:

    62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

    63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".

    64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.

    [Emphasis in original]

1. While it is not possible for the Tribunal to be satisfied as to whether the applicant was abducted, abused, and threatened by the Fijian military as he claims, in assessing those claims there are two circumstantial factors upon which the Tribunal places weight:

   a.firstly, the country information cited above which, collectively, paints a picture of a state security apparatus which sometimes struggles with resources, poor training, entrenched traditional views and issues of corruption and impunity.  There is also clearly documented cases of abduction, abuse, and torture by the Fijian military in its recent history consistent with the applicant’s claimed experiences; and

   b.secondly, the unique nature of the applicant’s job in Fiji as an  [Occupation 3]; that is, as a person with access to confidential, practical information regarding key [infrastructure] which would undoubtedly be of strategic military interest.

2. Overall, in light of the cumulative effect of these matters, the Tribunal accepts the possibility that the events took place as described by the applicant, and considers that if he is returned to Fiji now or in the reasonably foreseeable future, there is a real risk that he will experience acts of violence or intimidation at the hands of the Fiji military of the nature he has described, for the reasons he enunciates. 

3. According to country information the applicant would be unlikely to be able to obtain police protection against the threats and/or any actual attempt to seriously harm or kill him.  This is because, since the 2006 coup, the effectiveness and professionalism of the police as a security and law enforcement agency has been greatly compromised by the militarisation of the institution. 

4. While the Tribunal does not consider that there is a real chance that the applicant will suffer persecution for the reasons he claims,[27] for the reasons set out above the Tribunal does accept that there are substantial grounds for believing that, should the applicant be removed from Australia to Fiji, there is a real risk that he will suffer significant harm.  

   [27] The Tribunal does not accept that the violence or intimidation  would result from one or more than one of the five reasons enumerated in s.5J(1)(a) of the Act namely race, religion, nationality, political opinion, or membership of a particular social group.  Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.

   Conclusion: Refugee Criterion

5. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

   Conclusion: Complementary Protection

6. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk that he will suffer significant harm.

   Overall conclusion:

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   DECISION

9. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act

   Damian Creedon
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

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

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5H    Meaning of refugee

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

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

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

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

   …

   5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

   5K    Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

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

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

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

   5L    Membership of a particular social group other than family

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

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

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

   (c)     any of the following apply:

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

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

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

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

   5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

   …

   36     Protection visas – criteria provided for by this Act

   …

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   …