1717662 (Refugee)
[2021] AATA 5673
•17 September 2021
1717662 (Refugee) [2021] AATA 5673 (17 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1717662
COUNTRY OF REFERENCE: Fiji
MEMBER:James Lambie
DATE:17 September 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 17 September 2021 at 4:05pm
CATCHWORDS
REFUGEE – Protection visa – Fiji – a member of the particular social group – women in Fiji – well-educated qualified women who have been persecuted by the Fiji military authorities –imputed political opinion – a member of the SDL – association through marriage and blood relation to two high profile Fijian politicians– applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 91, 499
Migration Regulations 1994, r 1.12, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any 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
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 23 December 2011 and the delegate refused to grant the visas on 13 July 2017.
The applicants appeared before the Tribunal on 24 February 2020 and 4 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Dr A], [Dr B], and [Mr C].
The applicants were represented in relation to the review by their legal representative. The representative attended both Tribunal hearings.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the spouse, dependents, and children of the family head.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.221 of Schedule 2 to the Regulations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The first-named applicant is a [age]-year old woman from Fiji.
The secondary applicants are members of the first-named applicant’s family unit. All secondary applicants except for the first-named applicant’s spouse have made separate claims for protection. The secondary applicants are the first-named applicant’s spouse and four children, who are [age], [age], [age], [age] and [age]-years old respectively.
The applicants have a long and complicated immigration history in Australia, the full details of which are set out in the delegate’s decision record.
The first-named applicant first arrived in Australia on [date] July 2006 as the holder of a [temporary] visa. The first-named applicant’s spouse first arrived in Australia on [date] March 2006 as the holder of a [temporary] [visa]. The first-named applicant’s children first arrived in Australia on [date] March 2007 as dependents on their father’s [visa].
The applicants lodged a Class XA, Subclass 866 (Protection) visa application on 23 December 2011 with the first-named applicant as the primary applicant, and her spouse and children as members of her family unit. This protection visa application was subsequently refused by the Department in a decision dated 13 July 2017.
On 11 August 2017, the applicants applied for merits review of the Department’s decision of 13 July 2017 to refuse to grant their application for a protection visa.
Claims:
The applicants’ protection claims are set out in their protection visa application, written claims, written submissions from their representative and the delegate’s decision.
Claims of the first-named applicant
The first-named applicant, [Mrs D], claims she does not want to return to Fiji as she has grave fears for her life and the lives of her husband and children, because she is a member of the particular social group, ‘women in Fiji’. She claims women in Fiji face gender violence and bullying by some men in Fiji.
[Mrs D] claims she left Fiji due to the presence of the military near her home. She claims her family lived near her husband’s boss, [Mr E], who became a [government official] in the Bainimarama regime. She claims to have witnessed the patrol vehicle of Bainimarama on his way to his village.
She claims that once when they had a family gathering one of the guards asked them what the purpose of their get together was. She claims while he was polite, she considered this an invasion of her privacy.
[Mrs D] claims to fear returning to Fiji due to her imputed political opinion and her association through marriage and blood relation to two high profile Fijian politicians. She claims her uncle, [Mr F], is a former [official] who is now residing in Australia under a protection visa and her husband’s first cousin, [Mr G], is a former [official]. She claims both [Mr F] and [Mr G] were implicated in undertaking seditious activities.
[Mrs D] claims her husband [worked] for [Mr G].
[Mrs D] claims to have two brothers in the police force. She claims her husband’s sister is in [a] Board and his brother is a government [employee]. She claims her husband’s uncle is [name], a senior minister in [a] Church.
[Mrs D] claims that as a public servant, she was required to be fair, impartial and apolitical; however, she is a strong supporter of the SDL and she has voiced her political dissatisfaction at work, church social gatherings or when visiting other villages. She claims to have had many discussions with family and friends, but she did not voice her opinions publicly.
New claims raised at her protection visa interview
[Mrs D] claims that before she left Fiji, she was the secretary of a women’s group which ran programs for [women]. She claims that in January 2007, two military officers directed her to change the focus of the programs. She claims she did not do this and as a result, she was hit by one of the officers across the face. She claims to have sought medical assistance at the time and that it is not currently a problem for her.
[Mrs D] claims she was a member of the SDL while she resided in Fiji.
[Mrs D] claims her name is currently on the watchlist in Fiji and that she would be questioned and harmed by the military if she returned to Fiji.
The first-named applicant claims she became involved in the Social Democratic Liberal Party (SODELPA) in Australia and that she has been part of a group supporting Peceli Matanitouba to raise money to help the party.
New claims raised in post-interview submissions by her representative
[Mrs D] claims that in early January 2007, she was punched by a military officer who broke her nose. She claims she has had ongoing medical problems since the incident.
[Mrs D] claims she has always been politically active and a strong supporter of the SDL in Fiji.
Claims of Mr [H] (Applicant 2)
Applicant 2 ([Mr H]) is [Mrs D]’s husband. His application for a protection visa was refused on 26 November 2011. His application is as a member of the same family unit of [Mrs D]. However, he made some specific claims in his own respect at the hearing, discussed further below.
Claims of [Miss I] (Applicant 3)
Applicant 3 ([Miss I]) is the eldest child in the family.
[Miss I] claims that in 2007, the family lived in a house opposite [Mr E]. She claims to have witnessed Fijian military soldiers with guns roaming the area, which caused her to feel fearful and intimidated.
She claims that, as her father was in Australia and her mother was working, she was responsible for looking after her younger siblings. She claims their liberty was curtailed and at times she feared for her siblings’ safety.
She claims the Fijian military have no respect for women and she fears the treatment she will receive from the Fijian military if she returns to Fiji.
New claims raised at her protection visa interview
[Miss I] claims that because of her mother’s claims, she will be on the watchlist if she returns to Fiji.
She claims she will be targeted because she is a member of the [family] and would be treated badly by the Fijian authorities if she returns to Fiji.
Claims of [Mr J] (Applicant 4)
Applicant 4 ([Mr J]) is the second eldest and only son of the family.
He claims he was in [school] before they left Fiji and he remembers witnessing the military with guns near their home. He claims that while his mother and sister felt uneasy about this, he thought it was fun.
New claims raised at his protection visa interview
[Mr J] claims his name is on the watchlist in Fiji and if he returns to Fiji, he would be arrested.
He claims to fear returning to Fiji because people hold grudges. He claims that because he has the same surname as his mother, the Fijian authorities will beat or abuse him to teach him and his mother a lesson.
Claims of [Miss K] (Applicant 5)
Applicant 5 ([Miss K]) is the second youngest child in the family.
[Miss K] claims she was diagnosed with [Medical condition 1] in mid-2016 and has been unable to work due to this diagnosis. She claims to take medication to manage her medical condition.
She claims she led a happy life in Fiji until the military takeover, which was when she became aware of the soldiers.
She claims she was told by her mother that they had to leave Fiji, because they became a target after her mother and father’s involvement.
She claims she has read about the reality of the situation in Fiji and has realised that she will be unable to find work if she returns to Fiji.
She claims that as a member of the [family], she will be identified and targeted for harm if she returns to Fiji.
Claims of [Miss L] (Applicant 6)
Applicant 6 ([Miss L]) is the youngest child in the family.
[Miss L] claims to have very little memory of Fiji, as she left the country when she was very young.
She claims she has read about the reality of the situation in Fiji and has realised that she will be unable to find work if she returns.
She claims to believe that as a member of the [family], she will be identified and targeted for him if she returns to Fiji.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
·The applicants’ protection visa application forms completed and lodged on 23 December 2011;
·The applicants’ identity documents being copies of their passports, birth certificates and marriage certificate of the first-named applicant and applicant 2;
·The protection visa decision record dated 13 July 2017 (delegate’s decision);
·Department files [concerning] the applicants’ protection visa application;
·The review application form, which included a copy of the delegate’s decision;
·All documents submitted to the Department in support of the applicants’ protection visa application, including:
owritten submissions from the applicants’ representative dated 29 June 2017 and all attachments referred to therein;
oa statutory declaration from the first-named applicant, sworn on 24 December 2011;
oa statutory declaration from applicant 3, sworn on 12 December 2011;
oa statutory declaration from applicant 4, sworn on 12 December 2011;
oa statutory declaration from applicant 5, sworn on 31 May 2017;
oa statutory declaration from applicant 6, sworn on 31 May 2017; and
othe Tribunal’s decision in the matter of 1612896 dated 18 April 2017.
·All documents submitted to the Tribunal in support of the applicants’ application for review, including:
opre-hearing written submissions by the applicants’ representative dated 20 August 2020 and 3 May 2021 and all attachments referred to therein;
ostatutory declarations from the first-named applicant, sworn on 20 February 2020, 19 August 2020 and 22 April 2021;
ostatutory declarations from applicant 2, sworn on 19 August 2020 and 1 May 2021;
ostatutory declarations from applicant 3, sworn on 20 February 2020, 19 August 2020 and 30 April 2021;
ostatutory declarations from applicant 4, sworn on 20 February 2020 and 19 August 2020;
ostatutory declarations from applicant 5, sworn on 20 February 2020 and 20 August 2020;
ostatutory declarations from applicant 6, sworn on 20 February 2020, 20 August 2020 and 22 April 2021; and
opost-hearing written submissions by the applicants’ representative dated 28 May 2021 and all attachments referred to therein.
·Country information from the applicants’ submissions and other sources concerning Fiji, as set out below.
Country of reference / receiving country:
The applicants claim to be citizens of Fiji. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country; therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicants attended hearings before the Tribunal on 24 February 2020 and 4 May 2021 to give evidence and present arguments. Both hearings were conducted in person. The Tribunal also received oral evidence from [Dr B], [Dr A] and [Mr C], whose reports were provided with the representative’s submissions, and from [Mr F].
The applicants were accompanied and represented by their legal representative, who also appeared in person at both hearings.
[Mrs D] gave evidence at both hearings in support of her claims made in her various statutory declarations. Her statutory declaration of 19 August 2020 is in substantially identical terms to her statutory declaration of 20 February 2020, save for two additional paragraphs relating to the health of her daughter [Miss L].
[Mrs D]’s evidence focused on the assault she claimed to have suffered at the hands of two army officers in about January 2007. She accepted that she had not mentioned this incident until the interview with the delegate in 2017, although she maintained that she believes she may have given it earlier. No record of any earlier such claim was shown to the Tribunal. She claims the reason for the late addition of this information was because she was not given time to put it in her earlier submissions. The delegate found that, given that the allegation of assault is by far the most serious claim amounting to evidence of persecution, the fact that it was omitted in favour of far more equivocal examples (such as being questioned in a way she perceived to be intrusive) tends to undermine the credibility of this explanation. I put to [Mrs D] that her statutory declaration of 24 December 2011 contained detailed claims about events in early 2007 which are limited to having witnessed military patrols, being politely asked by a guard for the purpose of a family get-together and feeling the need to be discreet in discussing political matters, and made no mention of any violence despite that being a highly material claim. She maintained that the statutory declaration was prepared in haste. It was noted that, despite the delegate having criticised [Mrs D]’s failure to produce any medical evidence in support of her claimed injury (a broken nose), and having invited her to provide such evidence, no attempt had been made to remedy that failure.
In relation to her imputed political opinion, [Mrs D] gave evidence that, as a civil servant in Fiji, her political activities were “underground work”, but she did not specify the nature of that work. In relation to her current political activities she volunteered only that she does a lot of cooking for SODELPA party events held in the Brisbane area.
At the hearing, [Mrs D] claimed that violence against women was extremely prevalent in Fiji and that this was another reason that she feared returning to Fiji. When it was put to her that the country information is that the great preponderance of violence against women occurs in a domestic setting, she agreed that she had no fear of violence from anyone in her household.
[Mrs D] also claimed to be aware that she was on a watchlist as a known supporter of SODELPA and because the regime has an interest in her husband. She said only that she had heard she was on the watchlist but could not nominate the source of her information. With the post-hearing submission was a document titled “Support Information for [Mrs D]” from [Mr F], who also gave evidence at the hearing. [Mr F] is a former [official] and an uncle of [Mrs D]. His evidence at the hearing was brief, referred to further below, and he sought also to confirm [Mrs D]’s political activity. In addition to some claims relating to the family’s involvement with the SDL Party, he sought to add some detail in relation to the watchlist claims:
One of the unusual aspects of the security check which exists at the border controls in Fiji is the existence of the list of “Controversial Persons” under the government watchlist.
I have my own relatives working in the Nadi International Airport as well as in the ports that had personally confirmed the existence of this list. My name is in the “Persons of Interests” column amongst others. I don’t want to subject my relatives to obtain a copy of the list itself due to personal fears of them losing their job.
The list however exists and is always a source of concern to those of us who seeks to be able to “return safely” to our home in Fiji someday. An email from my nephew who was working at the Nadi International Airport on this issue is attached for your information.
The email is dated 21 August 2020. It appears to be from a relative of [Mr F]. It reads:
I worked [at] the Nadi International Airport. I am personally aware of the existence of a Watchlist of Peoples of Interest with our border control section here at the airport.
Your name is still there and I believe you can’t still safely arrive here.
I will try to have a look at our other members of family in the list but it is hard now that I am working at [another location].
This aspect of the evidence is discussed further below in the context of the relevant country information. However, I would observe that [Mr F]’s supporting information is nebulous and lacking in specifics. The currency of his information is impossible to determine. It makes no reference to the [family], despite them apparently being known to the source of the claim. I would also observe of [Mr F]’s statement that, while he makes specific claims of violent assaults against two of his nephews, he makes no reference to any harm occasioned to his niece or to any other members of [Mrs D]’s immediate family. At the hearing, he said that he was informed of [Mrs D]’s assault, but only when asked. The only reference to [Mrs D]’s political profile is unspecified support for [Mr F]’s successful campaigns in the 1999, 2001 and 2006 general elections. No role is mentioned, other than her being part of the wider family’s support.
Overall, [Mrs D]’s evidence was vague and lacking in detail. The most relevant claim, that of being assaulted by the army officers, for reasons given further below, is lacking in credibility.
The Tribunal heard from Mr [H] (Applicant 2). [Mr H]’s protection visa application was refused in 2012 and his claim is as a member of the same family unit as [Mrs D]. He gave evidence as to the family’s sur place political activities in support of SODELPA. He claimed that the party has more than 100 members in Brisbane and that it holds regular fundraising [activities]. These activities are principally dinners and an annual ball. Of the political activities, he nominated a protest gathering on the occasion of Mr Bainimarana’s visit to Brisbane in July 2017. He also presided at an event to welcome to Brisbane the former Prime Minister of Fiji, Mr Qarase, in 2014. He claimed that [Mrs D] supports the fundraising events and does a lot of cooking for them. I have taken into account letters of support from [two former officials], who describe his membership of and support for SODELPA in Australia, which they say is known to the government of Fiji and may expose him and his family to mistreatment if they were to return to Fiji. The post-hearing submission included a letter from [an official] of SODELPA Queensland, dated 21 May 2021. [He] describes Mr and [Mrs D] as active members of SODELPA Queensland and continues:
Mr and [Mrs D] have been very active members of the party in the past few years, and they have involved themselves in participating in the organising of fundraising, interaction with political members and leaders of SODELPA Fiji like the former Prime Minister Mr Laisenia Qarase and Sitiveni Rabuka and showing their disagreement with the current regime in Fiji. [Mr H] was involved in a peaceful protest in Brisbane when the current Prime Minister came to Queensland in 2017… It will be very dangerous for any members of the [family] to return to Fiji now specially for [Mrs D] because of her involvement in Fiji and here with SODELPA Queensland which is well known to the current regime still in power.
Some photographs and social media posts were included with the post-hearing submission showing the participation of Mr and [Mrs D] in SODELPA activities between 2014 and 2020. None of these make any reference to the involvement of any of the applicants in political activity in Fiji.
In relation to [Mrs D]’s imputed political opinion, [Mr H] said that he was known to the Fijian regime because he had witnessed the torture of two of his colleagues and was threatened at gunpoint for having witnessed it. He accepted that this was not part of his original protection claim and claimed that he had been afraid to provide that information. As noted above, his protection claim was refused on 26 November 2011. [Mr H] was taken to his statutory declaration of 22 February 2020 and asked why no mention was made of [Mrs D]’s claimed physical assault at the hands of the two army officers. He said that he had not mentioned it because he thought the statutory declaration was only relevant to his own personal circumstances. When taken to paragraphs 12, 13 and 14, which relate to the circumstances of his children, he offered no explanation as to why he had omitted any mention as to why [Mrs D] might have a well-founded fear in her own right.
[Mr H] repeated [Mrs D]’s claim that the family were on a watchlist. He could provide no details about that, including the source of the information. His evidence was that someone had seen his name on a list and that, as a result, the family would also be on the watchlist.
[Mr H] also gave evidence that, having reached retirement age, his economic prospects should he return to Fiji now or in the reasonably foreseeable future, would be extremely limited. He had worked [in] [a government agency] and, based on his qualifications, would be unable to obtain work in the private sector.
The Tribunal heard from [Miss I]. She was [age] years old when she first came to Australia and completed her education at [a] High School in 2008. She did not claim to have witnessed any instance of persecution personally but does recall seeing military personnel driving around her neighbourhood carrying guns. She did not recall any political conversations with her parents. When asked, she said she did not recall any conversations with her parents about them being harassed or otherwise coming to harm at the hands of the military. When directly asked whether she was aware that her mother had been hit by an officer, she said she was aware of this. When asked why she had not mentioned this without being prompted, she claimed that the question had thrown her off. She could not nominate the year in which this occurred or her age when this occurred. She said that she did not think her mother wanted to tell her about it.
In her statutory declaration, [Miss I] also claims that she is unwilling to return to Fiji now or in the future because of a fear of persecution of her family by the Fiji government, police and military; because “inequality and oppression toward women is accepted [she is] unwilling to return to Fiji where women are tortured, harassed and classified as second-class citizens”; and because “sex and gender discrimination are considered to be normal and taken for granted, and the voice of women is suppressed and censored”. She also claimed to fear being traumatised psychologically, mentally and socially, these fears being compounded by the prospect of separation from her family and being unable to support herself. She claimed that she would be victimised because the authorities would recognise her by her surname. She acknowledged in response to questions from the Tribunal that she did not have firsthand experience of her claims and had not been personally subjected to violence or harassment.
[Miss I] tendered a report from [a named doctor], who is of the opinion that she suffers from depression, anxiety and high stress levels. She told the Tribunal that she is not on medication and is undertaking cognitive behaviour therapy. [The doctor’s] opinion is that “her anxiety and depression originated from her subsequent inability to work, make a contribution to Australian society, support herself and pay for a professional education.”
The Tribunal heard from [Mr J]. He was [age] years old when he arrived in Australia. He has only limited memories of life in Fiji. When asked, he said that he recalled that the army was present in the area where the family lived but recalled no instances of interaction with any members of the army, other than he had heard that they were being aggressive. He did not recall being told of any attack on or injury to his mother but claimed that he may have heard that one of them had been a bit aggressive to her.
[Mr J]’s statutory declaration details his criminal record, which I do not consider relevant to the application.
His statutory declaration claims that he fears the family would be persecuted by the government of Fiji and its police and military, with a particular concern for his mother. He also claims that he fears for the welfare of his sisters in Fiji because of the social acceptance of inequality and oppression towards women. For himself, he claims that violence and brutality are considered normal in Fiji and that the rule of law would not extend to him. He made similar claims to those made by [Miss I] in relation to the prospect of separation from her family, being unable to support herself and being targeted by reason of his surname.
The Tribunal sought further details from him in relation to these claims. He said that he would be targeted for persecution because of some of the things his parents have spoken out against. The basis for this claim is that he has been aware of his parents attending SODELPA meetings and holding fundraising functions. When country information was put to him in relation to the treatment of opposition supporters in Fiji, he disagreed and said that he knew that low-profile people have been targeted for their Facebook posts. He was unable to nominate any such people and agreed that he did not know anyone who has been targeted.
[Mr J] tendered a report by [Mr M], a clinical psychologist. [Mr M] first saw [Mr J] in 2013 following his criminal charges. The assessment focused on his use of alcohol and drugs. [Mr M] describes [Mr J] as having presented in a stable state, while reporting some levels of depression relating to his inability to find work. There is little in this report to which I can give weight in relation to [Mr J]’s claims.
The Tribunal heard from [Miss K]. Her statutory declaration of 20 August 2020 is in very similar terms to those of her siblings, save that she provides details of her diagnosis with [Medical condition 1] in 2016 and claims that treatment for her condition would not be available in Fiji. She was [age] years old when she arrived in Australia. She described Fiji as a distant memory but does remember going into town and seeing soldiers with their weapons. At the time she was not sure if that was unusual. She does not recall any instance of mistreatment of herself or any member of her family. She said she could remember “not having a voice” but could not elaborate as to whether this was because of her age or gender, or who was seeking to silence her, or on what issues.
[Miss K] provided some vague and basic details as to her parents’ involvement with SODELPA. She said that they attended meetings and helped with fundraisers, for which her mother would prepare roti and curry.
[Miss K] described her medical condition and treatment. She said that, following her diagnosis in 2016 or 2017, she spent several months in and out of hospital. Her last inpatient visit was in 2019. She attends an outpatient review once a month and takes medication every morning and evening. With the post-hearing submissions was a letter dated 27 May 2021 from Associate Professor [N], a [specialist]. Professor [N] reported that [Miss K]’s condition:
…[details deleted]. With these treatments, she has improved symptomatically to allow her to continue her studies and participate in life related activities (including playing sports) and [Body part 1] function has also stabilised…
She needs ongoing specialist [input] for care of her condition as [it] can be complicated by relapses which can be life-threatening. To prevent relapses, she needs to continue to receive above-mentioned treatments. Although I am uncertain of exactly what is available or accessible in Fiji in terms of medical treatment options, I do not believe she would have access to treatment she is currently receiving which are helping to sustain her ability to live an independent life. To the best of my knowledge, there is only one [Body part 1] specialist in Fiji covering the entire country at present.
Associate Professor [N] does not cite the sources for his opinions about the state of medical care or the availability of medicines in Fiji. With the post-hearing submission, a variety of media reports and a research article were provided to the Tribunal. A report in the Fiji times titled “Health Ministry struggling” dated 9 March 2020 described a lack of equipment, shortage of drugs and manpower, and poor management at the Colonial War Memorial Hospital. The source for this story is a Dr Eddie McCraig, who is also quoted in an RNZ article dated 16 December 2020 titled “Health expert warns of drugs shortage in Fiji”. In this article, Dr McCraig is quoted as saying that about 60% of medications and the essential drug list in Fiji was not available and that about 15% of the population was diabetic. He is quoted as saying:
“We want to look at our diabetics and complications, we found that 80% of our diabetics are poorly controlled because they have no drugs, they have no labs, laboratory testing and the list goes on and on. So, what is the state of our nation, it is in dire straits.”
The submission also includes an opinion piece published on 7 April 2018 in the Fiji Times by Professor Biman Prasad, who is the leader of the National Federation Party. He criticises the state of medical care in Fiji, including the availability of [specified] services.
A Plos One journal article titled “Medicine shortages in Fiji: a quantitative exploration of stakeholders’ views”[1] dated 5 June 2017 was included with the post-hearing submission. It describes a survey of 48 stakeholders and reports that:
[1] J. Walker et al, ‘Medicine Shortages in Fiji: A qualitative exploration of stakeholders’ views’ (2017) Available at:
Fiji has both private and public healthcare sectors, and an established problem with medicine access… [a]cross private pharmacies, 23.3 - 26.7% of medicines were not available to patients. This was considered satisfactory… Medicines were considered affordable to an employed person… Generally, Fiji lacks reputable information into medicine availability and utility.
The article concluded that:
…the situation in Fiji is not dissimilar to other instances of shortages around the world and hence international solutions like that proposed by WHO are feasible; however, they must be modified to be uniquely Fijian to work in this context.
These submissions and reports are discussed further below in the context of the country information.
[Miss L] did not attend the hearing. Her statutory declaration is in very similar terms to those of her siblings. A letter from [a named doctor] dated 4 May 2021 reports a diagnosis of unspecified non-organic psychosis which is of a severe nature and has caused significant impairment in her function. A report from [Mr M] says that, in his opinion, should she have to return to Fiji, “her mental health will deteriorate severely and very possibly make full recovery impossible.” The basis of this opinion is not stated but is discussed below in the context of the country information.
[Dr B] is a lecturer [at] [a] University. She provided what she described as a “socio-legal report” dated 20 February 2020. [Dr B] has lived, worked and undertaken research in the Pacific Islands since about 2010. Her PhD is based on Fijian experiences of social care issues, including experience of gender, domestic and family violence, and the current cultural and government-led responses.
[Dr B] gave oral evidence to the Tribunal on 23 February 2020. In her report and in her oral evidence, she says that she is aware of the existence of a government watchlist, which the government itself adverts to the existence of on its immigration website. It was put to her that most countries have a watchlist or a stop list as part of their immigration and border control administration which might relate to fugitives, child abduction, bankruptcy and like. She said that she would not be able to comment on the differences between Australian and Fijian processes and that she was unclear as to whether there is a physical list. She claimed that, anecdotally, many Fijians claim to be aware of the existence of the list and that it is used to intimidate people. She has no firsthand knowledge of the existence of such a list and conceded it was possible that it might not exist at all, other than for the border control purposes described above.
In her report, [Dr B] says:
According to statistics provided by the Fiji women’s crisis centre, reports of rape and attempted rape have nearly doubled in the past five years, and reported cases of child sexual abuse has nearly tripled. With regards to the physical safety of the primary applicant, as well as her three [children], statistical data suggest that they would be in at increased harm of gender-based violence should they return to Fiji.
[Dr B] agreed at the hearing that most of the violence against women committed in Fiji and, for that matter, in Australia is at the hands of a person known to the victim. She said she had no reason to believe that the male members of the [family] or their extended family would commit such violence. This and other aspects of her report are discussed further below in the context of the country information.
[Dr A] provided a lengthy report dated 21 February 2020. His opinion is that:
…based on the information provided to me and the research on trauma it is my opinion that [[Mrs D]] has post-traumatic stress from her time in Fiji. The uncertainty around her Visa has likely compounded this trauma and if she is forced to return this will no doubt be severe in terms of further compounding the trauma.
100. [Dr A], who is a clinical psychologist, has quoted from a wide array of country information in support of his opinion. While I give a degree of credence to his clinical opinion, the country information on which he opines does not come within his stated field of expertise and is assessed further below.
101. [Dr A] provided oral evidence to the Tribunal on 4 May 2021. He told the Tribunal that, in coming to his diagnosis of post-traumatic stress disorder, his opinion is that [Mrs D] has been subjected to a number of stressors which have a compounding effect. When asked if he observed any clinical indications of PTSD, he said he had not. He said that clinical indications in his experience were not central to a diagnosis and that anyone who presents with post-traumatic stress has PTSD by definition. He said that [Mrs D] is not under his personal treatment and that he had not referred her for any treatment for PTSD.
102. [Mr C] provided a report dated 19 February 2020. [Mr C] is a human rights lawyer based in Fiji. The report covers the background of military coups in Fiji, his experience in representing clients who claim to have been the victim of human rights violations, his knowledge of the watchlist, and his assessment of the health system in Fiji.
103. [Mr C] gave oral evidence to the Tribunal on 4 May 2021. He said that his opinion of [Mrs D]’s claim is that, once she is on the regime’s “radar”, the regime does not look away. When asked whether the watchlist alleged to exist in Fiji approximated to the watchlist in Australia, he said that they are superficially similar but that the rule of law applies to the Australian watchlist whereas legal challenges to the watchlist in Fiji are not available.
104. [Mr C]’s opinions in his report are discussed further below in the context of the relevant country information.
Assessment of claims and evidence, and findings:
105. 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).
106. 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.
107. The Tribunal also accepts that ‘if the applicant's account appears credible, [s]he 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.
108. The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
109. 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.[2]
[2] Guidelines on the Assessment of Credibility (July 2015) Available at:
110. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[3]
[3] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
111. Taking all of these matters into account, I am unable to accept Mr and [Mrs D]’s principal claims of having suffered or witnessed torture or physical assaults at the hands of the Fijian security forces. None of the other applicants, nor the witnesses, nominated either of these incidents when asked for examples of threatening behaviour on the part of the police or army. Their knowledge of the claimed incidents, in each case, was ventured in the vaguest terms only when asked. Their explanation, that [Mrs D] tended to keep such matters to herself, is not plausible given the injuries [Mrs D] claimed to have suffered and that the claimed incident very closely preceded the family’s departure from Fiji. None of the witnesses ventured the incident claimed by [Mr H]. Both incidents were late additions to their claims and their explanations for not including them in their earlier evidence are not plausible. I am therefore satisfied that the incidents did not occur as described, or at all. The remainder of their claims, I am satisfied, do not derive from firsthand experience and require assessment against the relevant country information.
Women in Fiji
112. The Tribunal considered Country Information it had obtained from the Department of Foreign Affairs and Trade’s (DFAT) latest Country Information Report on Fiji, published on 27 September 2017 (DFAT’s latest Country Information Report Fiji):
Women
3.69 The 2013 Constitution and legislation protect women’s rights to equality and freedom. For example, the Employment Relations Promulgation 2007 prohibits discrimination on the basis of sex, pregnancy, and family responsibilities. There is little official discrimination against women in law and official policy.
3.70 The Family Law Act 2003 and a range of recently enacted decrees including the Domestic Violence Decree 2009, Criminal Procedure Decree 2009, Crimes Decree 2009, and Family Law (Amendment) Decree 2012 provide legislative protection against violence. These decrees have improved the legislative framework for preventing and responding to violence against women, including by expanding authority for police to undertake investigations; providing for Domestic Violence Restraining Orders; expanding the definition of rape (including spousal rape); and increasing penalties for trafficking in women or children.
3.71 In practice, however, Fiji continues to have very high levels of physical and sexual violence against women, even when compared to high regional averages. The Fiji Police Force has ostensibly had a ‘no-drop’ policy for domestic violence cases since 1995, meaning that cases cannot be dropped by police or withdrawn by the victim and must be investigated. Nonetheless, few cases reach the courts, and those that do are frequently dismissed or light sentences handed down. Due to societal norms, only around a quarter of victims seek official protection. Several shelters are available in Fiji, as well as counselling services. Several women’s rights NGOs are active in policy formation and service provision, particularly in the area of violence against women.
3.72 In September 2016, the Ministry of Women and the Fiji Women’s Crisis Centre (FWCC) launched a national 24-hour toll-free hotline. The FWCC has operated a hotline previously; however, victims were required to pay for the calls. During the toll-free line’s first week of operation, over 100 calls were received from women. The FWCC has emphasised that a host of support services will need to be mobilised and prepared for referrals.
3.73 In practice, police protection is reportedly inadequate to protect women at risk of violence. Families sometimes turn to traditional and religious reconciliation practices in both indigenous and Indo-Fijian communities to mitigate sentences in domestic violence cases. Women who are victims of domestic or sexual violence rarely report the incident due to distrust in authorities’ ability to support them, and for fear of shaming their families or village.
3.74 Overall, DFAT assesses women are at a low risk of official discrimination and a moderate risk of societal discrimination. DFAT assesses that women are at a high risk of domestic violence, at the hands of a spouse or intimate partner, with the situation being worse in rural areas and even worse in the outer islands. Credible sources reported that women often feel pressured to accept village compensation and remain in the abusive relationship.
113. The female applicants claim to fear persecution in Fiji because of their gender or (in the case of [Mrs D]) membership of the particular social group of well-educated and qualified women who have been persecuted by the Fijian military or authorities. The persecution they claim to fear is that of generalised discrimination, being treated as second-class citizens and exposure to violence, especially gender-based violence. Having found that the sole claimed incidence of violence against [Mrs D] did not occur as claimed, or at all, I have considered the country information, including the country information provided on behalf of the applicants.
114. The applicants rely on the reports of [Dr B] and Mr [A]. Some excerpts of their reports are given above and considered in light of the country information.
115. [Dr B]’s report, at page 6 (under the subheading Women’s membership and involvement in particular social groups – government responses), cites a meeting with several women’s rights organisations in April 2019, including two senior staff from the Fiji Women’s Rights movement, the director of the Fiji Council of Social Services and a group of young women involved with a feminist radio broadcasting organisation, who spoke of intimidatory behaviour by the police, although only broad details were provided. [Dr B]’s opinion is:
the above examples may indicate a systemic and long-standing history of state violence towards women involved in PSG. If the applicant has previous or ongoing involvement with a PSG in Fiji, exposure to violence, bullying and intimidation by police and government forces would reflect the experiences of other women in Fiji. Within my various roles and engagement with women’s rights organisations in Fiji, such experiences appear common [emphasis in original].
116. [Dr B]’s report references the risk to particular social groups (PSGs) throughout but does not identify them nor does she attempt to identify the particular social group to which [Mrs D] or the other applicants might belong. For the purposes of the application, however, I have assumed that she is referring to the particular social group of well-educated qualified women who have been persecuted by the Fiji military authorities (the PSG identified by the applicants’ representatives). While I accord some weight to her report, her opinion as to [Mrs D]’s exposure to violence presupposes her membership of the claimed PSG. Other than [Mrs D]’s own claims, there is no evidence of her political activity in Fiji and (for the reasons given in paragraph 111) I do not accept her claims of having been persecuted by the Fiji military authorities.
117. [Dr A]’s report, at pages 5 to 10, summarises [Mrs D]’s narrative to him of her experience as a woman in Fiji. She described a male-dominated traditional culture that was at times overbearing or bullying towards women. Up until the claimed incident with the military personnel, however, the only violence she reported was in her childhood at the hands of family members and schoolteachers. While I accept that [Dr A]’s professional opinion is that [Mrs D] has post-traumatic stress, I am unable to accept that there is any evidence that it derives wholly or in part from her experience or fear of serious harm or other persecution because of her gender or membership of a particular social group in Fiji.
118. The country information is that by far the greatest exposure of women to violence is in a domestic or family relationship. Crime rates in Fiji are assessed as moderate and consistent with regional averages. While statistics have indicated a sharp increase in sexual offences between 2008 and 2012, this is considered to reflect higher rates of reporting and internal relocation to the cities: Suva in particular.
119. The country information available to the Tribunal, when considered against the other evidence, leads the Tribunal to conclude that the female applicants, in the absence of any suggestion that they fear for their safety at the hands of their male family members, do not have a well-founded fear of being subjected to sexual violence or any other serious harm amounting to persecution on the basis of their gender or membership of a particular social group should they return to Fiji now or in the reasonably foreseeable future.
Political opinion
120. The Tribunal considered Country Information it had obtained from DFAT’s latest Country Information Report Fiji:
Political opinion (actual or imputed)
3.38 Fiji’s Constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
3.39 The Political Parties (Registration, Conduct, Funding and Disclosures) (Amendment) Decree 2013 and Electoral Decree 2014 provide the legislative framework for the registration and conduct of political parties. Some of the administrative processes for establishing a political party are restrictive: for example, there are harsh penalties for non-compliance, parties must gather 5,000 signatures to register and candidates can be barred from elections for any election-related offences.
3.40 A range of decrees in place prior to the 2013 Constitution limits these rights in practice. In particular, The Public Order (Amendment) Decree 2012 permits the Commissioner of Police to prohibit or subject to such conditions as he/she sees fit any procession, meeting or assembly on the grounds of public safety or public order. Under this decree, from June 2012 until late 2014, NGOs, political parties and others were required to seek permits to hold public meetings. At times these permits were withheld (further detail is provided below at relevant sub-sections). The implementation of this policy gradually became less strict, and by late 2014 political groups did not generally need to seek permission to hold public meetings. The new Public Order Amendment Act 2017 removes the requirement for a permit for a meeting in a public place; a permit is still required for a meeting organised or convened in a public park or on a public road.
3.41 Credible sources reported an increase in self-censorship by members of civil society on political issues. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.
Opposition parties
3.45 On 10 September 2016, police detained opposition NFP Leader, Dr Biman Prasad; opposition SODELPA Leader, Sitiveni Rabuka; Fiji Islands Council of Trade Unions Leader, Attar Singh; former SODELPA politician and academic, Dr Tupeni Baba; Director of the NGO Pacific Dialogue, Jone Dakuvula; and Fiji Labor Party Leader, Mahendra Chaudhry. They were arrested ‘on suspicion of having breached the Public Order Act 1969 (as amended)’ for attending a public meeting that police had not permitted. Credible sources informed DFAT that all detained were taken to a police station in Suva, charged and subsequently released. Authorities dropped the charges on 17 October 2016, citing insufficient evidence and noting the arrests ‘appeared selective’.
3.46 Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.
121. The Fiji Police Force is generally seen as capable and impartial, but has been involved in the adverse treatment of opposition activists. Fiji has a police-to-population comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific. The Fiji Police Force is generally a professional, albeit under-resourced, law enforcement organization. It is generally seen to be impartial, and has some ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible. However, there have been credible allegations of police involvement in beatings and assaults, and impunity is a problem in cases with political implications. ‘Credible’ contacts have also made allegations to DFAT that the Police Intelligence Bureau is routinely involved in monitoring and occasional harassment of opposition activists.
122. Individuals who are critical of the government in Fiji face a low risk of torture. The Constitution provides for the right to freedom from torture of any kind. Torture is also a crime punishable by up to 25 years’ imprisonment under the Crimes Decree 2009 (Fiji).[4] In March 2016, Fiji ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), with four reservations, including regarding the definition of torture and access to remedies; it has not ratified CAT’s optional protocol.[5] The Public Order (Amendment) Decree 2012 (Fiji) amended the Public Order Act (Fiji) to authorise the government to use whatever force it deems necessary to enforce public order.[6] There were reports in 2019 of security forces abusing individuals.[7] A range of political activists claim to have been tortured by security officials, particularly during 2011.[8]
[4] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 4.7, p. 24; 'Constitution of the Republic of Fiji (Promulgation) Decree 2013 (Decree No. 24 of 2013)', Government of Fiji Gazette, Government of Fiji, 6 September 2013, (in force 6 September 2013), section 11, in Government of Fiji Gazette. Extraordinary, Vol.14 No.80, 6 September 2013, pp. 2747-2840, at 2760, CIS29349; 'Crimes Decree 2009 (Decree No. 44 of 2009)', Republic of Fiji Islands Government Gazette, Government of Fiji, 5 November 2009, p. 1060.
[5] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 4.7, p. 24; ‘UN High Commissioner concerned at Fiji media curbs’, Radio New Zealand International, 13 February 2018.
[6] 'Public Order (Amendment) Decree 2012 (Decree No. 1 of 2012)', Republic of Fiji Islands Government Gazette, Government of Fiji, 5 January 2012, pp. 5 & 8; 'Country Reports on Human Rights Practices for 2019 - Fiji', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.2 Section 1.c.
[7] 'Country Reports on Human Rights Practices for 2019 - Fiji', Bureau of Democracy, Human Rights and Labor, United States Department of State, 11 March 2020, p.2 Section 1.c.
[8] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 4.8, p. 24; ‘Torture and detention of activists in Fiji’, Amnesty International, 1 March 2011; 'Amnesty wants Fiji leaders to help end human rights abuses by military', Radio New Zealand International, 2 March 2011.
123. The applicants’ case is that Mrs and [Mr H] have always been supporters of SODELPA and thus identified with the political opposition in Fiji. While they claim to have been low-profile or incognito supporters of the party while living in Fiji, they have been active supporters while living in Australia. While the evidence supports the latter claim, there is no independent support for the claims to have been identified with any political movement in Fiji or to have undertaken overt or covert political activity. In this respect, I note the very limited evidence of Mrs and [Mr H]’s political profile in Fiji by any of the witnesses mentioned in paragraphs 70 to 76. Mr [F], when asked, offered to provide copies of receipts or other documents attesting to Mrs and [Mr H]’s political activity in Fiji, but failed to do so.
124. In respect of Mrs and [Mr H]’s claims that their sur place political activities may expose them to the risk of persecution or serious harm should they return to Fiji, I do not consider that there is anything in the evidence to satisfy me that their profile is sufficiently high to attract any official interest. When weighed against the country information that high-profile political figures and leaders of opposition groups are at moderate risk of harassment and monitoring in the lead up to elections, and at low risk of detention, I do not consider that the applicants’ comparatively very low-key political activity in Australia exposes them to a real chance that they may face a risk of serious harm in Fiji now or in the reasonably foreseeable future. In coming to this conclusion, I have also concluded, for the reasons in paragraph 111 above, that Mrs and [Mr H] have not suffered harm in the past by reason of their actual or imputed political opinion. I have also taken into account [Mr C] assertion that persons with a low political profile are at risk, but prefer the DFAT country information which is disinterested and more widely-sourced.
Watchlist
125. The Tribunal considered Country Information it had obtained from DFAT’s latest Country Information Report Fiji:
Exit and entry procedures
5.31 For Fijian citizens returning on their Fijian passport, the border official checks and registers the passport number, name and date of birth of the bearer.
5.32 All inbound and outbound passengers (including Fijians) are checked against the Oracle system, which includes a ‘Stop Watch’ List (including, for example, entries based on court orders to stop departure, or alerts from Customs if the passenger has outstanding tax debts).
5.33 In addition to the Oracle system, Fiji immigration services and border security have installed an Integrated Border Management System (IBMS). IBMS integrates with digital and biometric passport systems compatible with International Civil Aviation Organisation (ICAO) standards to enhance the level of security at the border. It is also compatible with the Australian Advanced Passenger Information System and Advanced Passenger Processing applications that advance passenger lists to airlines while conducting watchlist processing.
126. All of the applicants, [Mr F], [Mr C] and [Dr B] gave evidence to the effect that the watchlist is used as an instrument to suppress dissent. However, when questioned about the basis for their evidence, they could point only to general beliefs in the community or rumours. The strongest evidence in favour of the nature of the watchlist propounded by the applicants was in the email produced by [Mr F] (see paragraph 73), which refers to [Mr F] only and is of uncertain currency and reliability. It does not refer to any of the applicants. None of the applicants or [Dr B] were aware of the legitimate purposes to which a ‘Stop Watch’ list is put as an instrument of border control. [Mr C] gave very general anecdotal accounts of its existence. He concluded (at paragraph 42 of his report) that:
persons of interest, those who have sought refuge overseas, these are people who have caused embarrassment and damage to the regime, to the regime’s reputation and have embarrassed the Prime Minister and Attorney Gen (the de facto dictator of Fiji).
[Mr C]’s oral evidence to the Tribunal in respect of this conclusion is described at paragraph 103 above. He agreed that Australia and other countries have a similar border control process as that described as a watchlist but claimed the difference was that judicial review of a border control stoppage was not available in Fiji. I am not convinced that such a sweeping claim can be maintained, in view of the wide range of matters which might result in a person being placed on a list, both in Fiji and Australia.
127. In view of all the evidence and the country information, I have concluded that it is likely that there may be a degree of community confusion as to the purpose and effect of the ‘Stop Watch’ list in Fiji, and that there may be a certain degree of subjectively justified paranoia as to its operation, particularly during the period of the most recent coup, when certain high-profile persons were prevented from leaving the country. However, there is insufficient evidence to satisfy me that any of the applicants are on such a list. In particular, I note that [Mr H] was able to leave and re-enter Fiji on numerous occasions after the coup and his explanation that his ability to do so may have been down to inefficiency is not convincing. Because I have concluded above that none of the applicants face a real chance of serious harm by reason of their actual or imputed political opinion, and because I am not satisfied either of the existence of a watchlist of the nature alleged or that any of them are named on any such list, I cannot be satisfied that any of the applicants face a real chance of serious harm by reason of the matters claimed.
Economic situation in Fiji
128. Each of the applicants have claimed that they would suffer a significant reduction in their standard of living and face difficulty in obtaining employment if they were to return to Fiji now or in the reasonably foreseeable future.
129. The Tribunal considered country information it had obtained from DFAT’s latest Country Information Report on Fiji and other sources.
130. Fiji is one of the most developed and connected of the Pacific Island economies. Earnings from the tourism industry and remittances from Fijians working abroad representing the country’s largest foreign exchange earners.[9] Fiji’s economy grew an average 3.6 per cent annually in the five years to 2018.[10] Despite the challenges brought by four devastating cyclones to April 2018, in May 2018 Prime Minister Bainimarama forecast the economy’s growth ‘“for the ninth consecutive year, the longest period of sustained economic growth ever recorded.”’[11]
[9] 'The World Factbook - Fiji', Central Intelligence Agency, 12 December 2016.
[10] Fiji: elections and the slow path to democracy’, Pryke J, The Interpreter (Lowy Institute), 13 November 2018.
[11] ‘Fiji on course for 11th year of growth: PM Bainimarama’, Naigulevu F, The Fiji Times, 28 May 2018.
131. A social assistance system applies to all citizens of Fiji which includes cash transfer schemes such as the payment of a regular allowance and other direct financial assistance (for example, food vouchers) and a few indirect transport schemes such as free bus services for people with disabilities.[12] According to the government of Fiji, its Property Benefits Scheme (PBS) targets those poorest of the poor and living in destitution.[13] The Fijian government budget for the PBS and food voucher system was increased in the 2017 and 2018 financial year[14]. The Fijian government funds various housing schemes, including the Housing Assistance and Relief Trust, which provide homes and assistance with the welfare of destitute people have little or no regular source of income and rely on the Department of Social Welfare for financial assistance, and the Public Rental Board which provides rent subsidies.[15]
[12] Social Security Administration, Office of Retirement and Disability Policy, Office of Research, Evaluation and Statistics 2017, Social Security Programs Throughout the World: Asia and the Pacific, 2016 (Washington, DC: SSA Publication No. 13-11802, March), pp80-83 ‘Fiji’; UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February, pp50, 140-141.
[13] The Fijian Government 2014, ‘Poverty Benefit Scheme Ensures Objectivity in Selection Criteria’ Media Press Release, 3 January.
[14] Kalounivti M, Fiji Budget for 2017-18 Increases Spending by $459 Million’, Fiji Times Online, 29 June 2017.
[15] UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2017, op cit, pp. 131-132, 147.
132. There is nothing to indicate that the applicants would not be able to access the social welfare system in Fiji as Fijian citizens. The Tribunal does not accept that the applicants would be denied social welfare assistance on any discriminatory basis. While it is accepted that the level of assistance the applicants would be likely entitled to in Fiji would be less than what they have been able to access in Australia, the Tribunal is not satisfied that the lower level of services offered amounts to persecution or that there is a real risk the applicants will suffer significant harm due to the limited availability of social welfare resources in Fiji.
133. The Tribunal does not accept that the social welfare assistance available to the applicants in Fiji, even though less than what they would be able to access in Australia, comes within the definition of persecution or the complementary protection provisions of a real risk that they would suffer significant harm.[16]
[16] See MZAAJ v MIBP [2015] FCA 478
Member of the [family]
134. The applicants’ claims that they face a risk of serious harm on return to Fiji by reason of membership of the [family] are closely tied to the claims made in respect of actual or imputed political opinion, or to those made by [Mrs D] of her membership of a particular social group. I have also considered the wider ambit of the claim most clearly expressed in [Mr F]’s statement, in which he says his extended family are all identified as being sympathetic to SODELPA and are therefore at risk of intimidation and harassment by the government. Having regard to the country information at paragraphs 120 and 122 above, and my conclusions at paragraph 124, and to the vagueness of [Mr F]’s allegations in his statement, I cannot be satisfied that membership of the [family] constitutes a particular social group for the purposes of the refugee criterion and, therefore, that the applicants have a well-founded fear of persecution on these grounds should they return to Fiji now or in the reasonably foreseeable future.
Medical claims
135. The available country information is that largely free and generally effective healthcare is generally available in Fiji. Higher than average regional health outcomes are reflected in comparatively high life expectancy at birth of 72 years. The government provides generous public health services, including free primary and secondary health care: preventive care, generalist and specialist services, and hospitalization. X-ray and other support services are not generally subsidised.[17] There is a government Free Medicine Scheme for low income individuals. There are five main hospitals in Fiji, four of which are state-funded institutions, and one - Suva Private - a commercial facility.[18]
[17] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 2.2, p. 6; ‘Social Security Programs Throughout the World: Asia and the Pacific’, 2016, [United States] Social Security Administration, March 2017, p.80; 'Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance', UNICEF, February 2015, p. 147.
[18] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 2.25, p. 6; ‘How to Benefit from Government’s Free Medicines Programme: Akbar’, DEPTFO News, Fiji Sun, 16 February 2017.
136. Three of the applicants – [Miss I], [Miss K] and [Miss L] – have made claims in respect of their health. Only [Miss K] and [Miss L] have conditions that require medication and hospital intervention. Limited evidence was provided as to the capacity or incapacity of the Fijian health system to manage their conditions.
137. The evidence relating to [Miss K]’s condition is summarised at paragraphs 91 to 94 above. Her treating [specialist] writes that, to the best of her knowledge, there is only one [Body part 1] specialist covering the whole of Fiji at present. The opinion articles of Dr McCraig and Professor Prasad are also cited as evidence that the specialist staff and medications required by [Miss K] are in short supply. I note, without necessarily disputing the genuineness of their opinions, that Dr McCraig’s conclusions were contested by the Fijian Minister for Health in one of the articles provided and that the statements of Professor Prasad were made in the context of a political platform announcement. In all the circumstances, I consider the summary of the academic study and the available country information to be disinterested and more reliable. I also take into account that [Miss K]’s condition has been manageable over the medium term by outpatient consultations and regular medication. There is no evidence to found a conclusion that the immunosuppressive medication she requires is unavailable in Fiji or unobtainable by alternative means.
138. The evidence relating to [Miss L]’s condition makes any conclusion as to the availability of treatment difficult. As noted in paragraph 95, the opinion of [Mr M] that, should [Miss L] have to return to Fiji, “her mental health will deteriorate severely and very possibly make full recovery impossible” does not state its basis. Her treating psychiatrist provides no view as to the availability of care in Fiji or of her prognosis should she leave Australia. No evidence was provided as to the availability or otherwise of the medication with which she is currently treated.
139. There is nothing to indicate that the applicants would not be able to access the healthcare system in Fiji as Fijian citizens. The Tribunal does not accept that the applicants would be denied healthcare on any discriminatory basis. While it is accepted that the level of care the applicants would be likely entitled to in Fiji would be less than what they have been able to access in Australia, the Tribunal is not satisfied that the lower level of services offered amounts to persecution or that there is a real risk the applicants will suffer significant harm due to the standard of public healthcare in Fiji.
140. The Tribunal does not accept that the healthcare services available to the applicants in Fiji, even though less than what they would be able to access in Australia, comes within the definition of persecution or the complementary protection provisions of a real risk that they would suffer significant harm.
Cumulative claims
141. Having considered all of the applicants’ claims, individually and cumulatively, and all of the evidence, as well as having considered the personal circumstances of each of the applicants, the Tribunal finds that there is no real chance that any of the applicants will suffer persecution as a consequence of their actual or imputed political opinion, or membership of a particular social group, or for any other reason, if they return to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) now, or in the reasonably foreseeable future, if they return to Fiji. Accordingly, the Tribunal finds that they do not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that they will suffer significant harm?
142. The Tribunal has considered the applicants’ claims in terms of complementary protection.
143. Having regard to the findings of fact above, I do not accept that [Mrs D], or any of the other applicants, left Fiji because they feared for their physical safety.
144. In view of these findings, I am not satisfied that there is a real risk that the applicants will suffer significant harm for any of the reasons claimed if they return to Fiji now or in the reasonably foreseeable future.
145. Having considered all of the applicants’ claims, individually and cumulatively, and all of the evidence, as well as having considered their personal circumstances, I am not satisfied that the applicants will be arbitrarily deprived of their life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment, or they will be subjected to degrading treatment or punishment if they return to Fiji now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
146. Considering all of the circumstances above, both individually and cumulatively, in respect of each of the applicants the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s. 5H.
Conclusion: Complementary Protection
147. Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji that there is a real risk that they will suffer significant harm.
Overall Conclusion:
148. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
149. The Tribunal affirms the decision not to grant the applicants Protection visas.
James Lambie
Senior Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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