1727068 (Refugee)

[2018] AATA 716

1727068 (Refugee) [2018] AATA 716 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727068

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Mila Foster

DATE:20 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 February 2018 at 4:23pm

CATCHWORDS
Refugee – Protection visa – Fiji – Social group – Criminal deportee – Outsider or outcast in Fiji with tattoos – Western Australian values – Fear of harm by police and military

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424A, 499, 501
Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Fiji, applied for the visa [in] October 2017.[1] The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   [1] An earlier protection visa application made [in] October 2017 was invalid because the applicant failed to pay the application fee: see Department [file].

   CRITERIA FOR A PROTECTION VISA

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

   Refugee criterion

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

7. Section 5J(5) provides that the following are instances of serious harm: (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.

8. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.

   Complementary protection criterion

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10. 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 which is extracted in the attachment to this decision.

11. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant’s claims and evidence were presented in his protection visa application, during an interview with the delegate, oral evidence at a Tribunal hearing and in written submissions, comments and evidence presented to the Tribunal before and after the hearing. In broad terms, the applicant claims that if he returns to Fiji he would be an outsider and outcast given he has not lived in Fiji since he left as a child, he will not be able to find employment and subsist because of his criminal record, and he will be subjected to harm including physical harm by the police and military in Fiji because of his criminal record. I elaborate on these clams below.

    Protection visa application 

14. According to his protection visa application, the applicant is [an age] year old national of Fiji who migrated to Australia with his family as [an age] year old. He lost his Fijian passport years ago. He is of Fijian ethnicity and a Christian.  His parents, [sisters] and [brothers] reside in Australia.  One of his sisters is an Australian citizen while his remaining siblings and parents are Fijian citizens.

15. At the time of his protection visa application the applicant was and had been in prison since June 2009. He had been convicted of four crimes or offences in Australia: [in] 1999, [in] 2003, [in] 2009 and [in] 2009.

16. The applicant stated he would face significant harm if he returned to Fiji because he would be regarded as an outsider. He had resided overseas from a young age, had Western values, did not have language or cultural views, and had a criminal record for drug related and [other] related offences. He claimed he would be denied the opportunity to obtain employment or accommodation, and denied the capacity to subsist or earn a livelihood due to his involuntary removal to Fiji and/or disclosure of his criminal record. He claimed he would be subjected to police brutality due to the crimes he has committed in Australia and would not be able to gain medical assistance as there is no health or social security system available in Fiji.

17. The applicant stated that when he returned to Fiji for a short holiday (after migrating to Australia) he had faced mental and emotional harm but not physical harm. He said he was looked at as an outcast or outsider due to the modification of his character which he had adopted as part of the Australian community, as someone from a well-off family and wealthy country, due to the way he dressed, the clothes he wore and his body tattoos. This made him feel uncomfortable.

18. The applicant said he did not think the Fijian authorities would protect him if he returned to Fiji. He said he was aware of the police brutality that existed in Fiji and the chances of his criminal record becoming known to the police was not remote as his character and convictions have been disclosed on internet websites and his record would be disclosed because he would be an involuntary removal from Australia.

19. The applicant said he did not think he would be able to relocate to an area within Fiji where he would not be harmed. He said Fiji is a small country and people are always concerned with other people’s business. Also due to the modification of his character and his outcast behaviour his issue will follow him to any part of Fiji.

    Information on Department file and in delegate’s decision

20. Information in the delegate’s decision record, a copy of which the applicant submitted with his review application, and documents on the Department file relating to his protection visa application[2] indicate that the applicant first arrived in Australia in June 1984. It is not clear to me on what basis he entered Australia on that occasion. He subsequently departed and returned to Australia. In February 2017 the applicant’s [temporary] visa was cancelled under s.501(3A)(a) of the Act on the basis that he had failed the character test because he was sentenced to a term of imprisonment of 12 months or more.

    [2][File number].

    Interview with delegate

21. I have listened to a recording of the interview the applicant had with the delegate in relation to his claims for protection. The applicant largely reiterated the claims he had made in his protection visa application. The following is a summary of the information he provided.

22. He returned to Fiji twice. The last occasion was in 1995. He stayed for about two years in a village. He went to school for a while and worked on an uncle’s farm for a time. That uncle has since died.

23. In relation to what would happen to him if he returned to Fiji, the applicant stated that on his arrival in Fiji he would be taken for questioning by the police or soldiers due to his criminal history. He said they pay extra attention to criminals coming from overseas at the airport. He indicated that this had happened to ‘everyone’ who went there and that he knew a ‘couple of boys’ there. He said that after being questioned on arrival, ‘the boys’ are pulled up, an eye is kept on them, and they are ‘grabbed’. Later the applicant said he would be bashed because the police in Fiji are known to be brutal and he knew someone it had happened to. The person was pulled up, slapped up by the military and told he was being watched and they have been on his case ever since. The person was falsely accused and was going through the courts there. The same thing had happened to other boys there. He knew all this because he rang the boys there.

24. In response to being asked by the delegate whether he had any personal experience with the police in Fiji, the applicant responded that he got slapped up by one in the capital when he was about [age] or [age] because ‘I was staring at him or something’.

25. The applicant also stated that it would be hard to get a job and accommodation in Fiji due to his criminal record. He has not worked for over a decade and lost all his communication skills. He could understand Fijian but if he talked Fijian he would stand out. He said most people (in Fiji) look down on criminals. When the delegate asked how ordinary people would know he was a criminal, he replied he did not know.

26. The applicant said there was no social system or government funding in Fiji. He would end up homeless and living on the streets in Fiji. Asked what he knew about government services and medical care available in Fiji, the applicant replied that he knew nothing about what was available.

27. Asked about family he had in Fiji, the applicant said he had aunts, uncles and cousins but all his support networks are in Australia. Asked if he had ever married, he said he had not.

28. Asked whether he could use the perception that he was wealthy and from a wealthy country to his advantage in Fiji, the applicant responded that people would question why he was there and why he did not return to Australia as they wouldn’t know he had been in gaol.

    Pre-hearing submissions presented to the Tribunal

29. The written submissions the applicant made to the Tribunal prior to the hearing included the following:

    a.The reasons the applicant disagreed with the delegate’s findings and reasons. A considerable focus of those submissions was the argument that the applicant’s criminal record would be disclosed to the Fijian authorities in the course of his deportation to Fiji.

    b.News articles in support of the claim that the applicant would face harassment and mistreatment by the Fijian authorities due to his past criminal conduct and modification of his character. One article concerns a complaint made by a man named [Mr A] who was allegedly punched and kicked by police officers in Fiji. The applicant claimed that [Mr A], who he had known for about [a number of] years, had been harassed and mistreated by the Fijian authorities since he was deported to Fiji from Australia on character grounds some years ago. The other article primarily concerns an Amnesty International report which stated that Fiji’s police and military use torture with near impunity.[3] The applicant claimed that he feared being picked on, harassed, monitored, being on an alert list due to his criminal record and significantly harmed by the authorities and that he would not be able to report such harm due to high levels of corruption.

    c.It was submitted that the applicant would not have a support network in Fiji that could offer him employment or assist him to build a new life. He cited a news report that 60% of workers in Fiji live below the poverty line.

    d.It was submitted that given his lack of skills and experience it was likely the applicant would have to engage in unskilled labour but various factors would lead to questions from potential employers that were likely to result in the applicant revealing his past criminal record.

    e.Based on a 2012 Fijian government media release the applicant submitted that he would not have access to welfare which it is available for households and the application must be endorsed by a known community leader which the applicant was unlikely to gain. Even if he met those requirements, he submitted he would only receive $30 a month for a limited period of three years.

    f.It was concluded that the disclosure of the applicant’s criminal record to the Fijian authorities would lead to him being persecuted by the military and police which satisfies the ‘definition’ of serious harm in s.5J(4)(b). Further, the significant impediment to his capacity to subsist and earn a livelihood also satisfied the ‘definition’ of serious harm in s.5J(4)(b). He was thus a refugee as defined in s.5H and satisfied the refugee criterion in s.36(2)(a).

    [3] Amnesty International, Beating Justice: How Fiji’s Security Forces Get Away With Torture, 4 December 2016.

    Tribunal hearing

30. The applicant gave oral evidence at the hearing in person. His oral evidence was far more brief and less detailed than his written submissions. I refer to his oral evidence in my findings below.

31. The applicant had a support person at the hearing [who] identified herself as his cousin-in-law. At the conclusion of the hearing she asked to address the Tribunal. She commented on the length of time the applicant had lived in Australia and how he would be an outsider in Fiji. The matters she commented on had already been raised by the applicant himself and there was no indication that she had any firsthand knowledge of conditions in Fiji. I have thus given her comments no weight.

    Post-hearing evidence

32. After hearing the Tribunal received a statutory declaration from [a witness] in support of the applicant. [The witness] stated that she had known the applicant for [a number of] years and that he provided her and her children with a great deal of support and thus his return to Fiji would affect her family and his family. These matters are not relevant to the assessment of the applicant’s claims that he is a refugee or owed complementary protection. I have thus given the statutory declaration no weight.  

33. Following the hearing the Tribunal invited the applicant, pursuant to s.424A, to comment on or respond to information the Tribunal had obtained about [Mr A][4] indicating that the police in Fiji had launched an investigation into [Mr A’s] complaint of mistreatment but it had been put on hold because [Mr A] had not cooperated and attempts to contact him had been futile. In response the applicant stated that he had contacted [Mr A] who advised that he did not have faith in the Fijian police or authorities to resolve the matter and his family had begged him not to co-operate with the police as it could expose them to harm. The applicant also stated that he had spoken to the witness referred to in the original news article, [Mr B], who was deported from Australia in October 2016. He claimed that [Mr A] and [Mr B] now lived in fear for speaking to the media.[5] 

    [4][Source deleted].

    [5] The applicant indicated that he could provide written statements from [Mr A] and [Mr B] but none were provided prior to decision.

    Findings

    Nationality

34. The applicant asserts that he and his parents were born in Fiji and are Fijian nationals despite being long term residents of Australia. According to the delegate’s decision the applicant was the holder of an Australian resident return visa before it was cancelled. There is no evidence before me to contradict the applicant’s claim that he is a national of Fiji. I thus find on the evidence before me that the applicant is a national of Fiji.

    Criminal record

35. I accept on the evidence presented by the applicant and on the Department file that the applicant has a criminal record for crimes including [criminal offences] for which it seems he has spent most of his adult life in gaol in Australia.

    Outsider/outcast

36. The applicant claims he will feel like an outsider and be an outsider and outcast in Fiji for various reasons including his inability to speak Fijian, his tattoos, the modification of his character to the ‘Australian way’, Western values, his clothes, his perceived wealth, his lack of Fijian language skills and cultural values. He also referred to being looked down on due to his criminal record.

1. In support of that claim the applicant stated that he experienced emotional and mental harm because he felt like an outsider when he last visited Fiji in 1995. Asked about that harm at the hearing the applicant testified that he had been sent back to Fiji as [age] year old for disciplinary reasons because he was getting into trouble (in Australia). He spent about two years there working in a village on an uncle’s farm. He said he could not speak the language spoken in the village and his family members were only interested in him when he spent money on them. I find that family members not wanting to spent time with the applicant unless he spent money on them does not rise to the level of serious harm nor does it amount to significant harm as defined in s.36(2A). I note that serious harm is not defined in the Act as such but examples of serious harm are set out in s.5J(5). Further, as I put to the applicant at the hearing, English is one of the official languages in Fiji.[6] I thus find that the applicant will not face serious harm or significant harm because he cannot speak Fijian. Further, I find that while the experiences of the applicant’s last visit to Fiji may have led him to feel like an outsider he did not experience harm amounting to serious harm or significant harm because he was viewed as an outsider and what he experienced over 20 years ago as a teenager sent to stay with distant family members is not an indicator of whether he will be subjected to serious harm or significant harm because he is an outsider or outcast if he returns to Fiji in the future.

   [6] Lansford, T(ed), Political Handbook of the World 2015, SAGE Publications, 2015, p.481.

2. In relation to his tattoos, the applicant testified that he obtained those tattoos when he was [age] years. He thus did not have them when he last returned to Fiji as he seemed to suggest in his protection visa application. Asked why his tattoos would make him an outsider and outcaste, the applicant’s evidence was vague. He initially testified that there was really nothing about his tattoos that would make them an issue for him in Fiji. Questioned further, he replied that many ex-inmates had a lot of tattoos but did not explain what harm, if any, he would face due to his tattoos and when asked how many tattoos he had the applicant replied he only had a couple, not a lot. Even when I noted a Google search[7] I conducted revealed there were tattoo parlours in Fiji and again questioned why his tattoos would be a problem for him, the applicant offered no further evidence about why his [tattoos] would cause him problems in Fiji. I find the applicant’s claim that he would be an outsider and outcaste because of his tattoos is mere assertion and there is no credible evidence before me to indicate that he would be subjected to serious harm or significant harm because of his two tattoos.

   [7] For example, The Fiji Times, ‘Artists marks for life’, 14 February 2015,

3. The applicant was similarly vague when asked what aspects of his character he meant when he referred in his written submissions to the ‘modification of his character’. He merely responded by referring to his accent, the way he dressed and talked. When I sought to clarify what he meant about the way he talked he referred to his accent. Thus, on his oral evidence the modification of his character consists of his (Australian) accent and the way he dresses. Asked what it was about the way he dressed that would stand out, he replied he didn’t dress like native Fijians there. He made no mention in his oral evidence of the numerous other reasons he gave in his written submissions for why he would be an outsider or outcaste such as his Western values, Australian values, perceived wealth or lack of (Fijian) cultural values or even his criminal record. If he genuinely believed he would face serious harm or significant harm for those reasons I expect he would have mentioned them at the hearing. Although it is plausible that some people who become of aware of his criminal record in Fiji may look down upon him I find that does not rise to the level of serious harm nor amount to significant harm. Further, even though the applicant has made various assertions about why he would be an outsider and outcast if he returns to Fiji, there is no credible evidence indicating there is a real chance he would face harm amounting to serious harm or significant harm in Fiji in the reasonably foreseeable future as an outsider or outcaste for any of the reasons he has claimed either orally or in writing.  

4. In conclusion, it plausible the applicant may feel like an outsider or outcast upon his return to Fiji particularly in the short term given he has not lived in Fiji since he was a young child. However, the evidence before me does not indicate there is a real chance he will face serious harm or significant harm as defined in s.36(2A) because he will be viewed or treated as an outsider or outcast for any one or more of the reasons he has claimed. The applicant suggested in his written submissions that he would have to make some adjustments to adapt to life in Fiji but he has not claimed nor is there credible evidence to indicate that he would need to make any adjustments or modify his behaviour in any way to avoid serious harm or significant harm because he will be viewed as or treated as an outsider. I thus find that there is not a real chance that the applicant would face persecution involving serious harm or significant harm as defined in s.36(2A) in Fiji because he is an outsider or outcast.

   Economic hardship, welfare and medical services

5. The applicant claimed that due to various factors primarily his criminal record and the lack of a support network in Fiji he would not be able to find accommodation or employment to support himself in Fiji, and would not have access to welfare or medical services.

6. Given the applicant has lived in Australia since he was [age] years old and would be returning as a deportee with a serious criminal record it seems plausible that his more distant family members in Fiji would be unwilling to assist him establish himself in Fiji. I thus accept that the applicant will not have a family network he can rely upon on his immediate return to Fiji. He claims to have kept in contact with some Fijian nationals who have been deported to Fiji from Australia due to their criminal record but he has not indicated that they would be willing to assist him. Further, it is plausible and I accept that in the course of seeking accommodation and employment in Fiji particularly on his immediate return prospective landlords and employers may ask questions about his past and thus he may reveal his criminal record. I find that the nature of his criminal record is such that it is likely that it will be difficult for the applicant to secure accommodation and employment to support himself in the reasonably foreseeable future. However, because Fiji has a welfare and health system which the applicant will be to access to survive and obtain medical services, I do not accept he will be homeless or end up of the streets, or that he will experience economic hardship to a degree amounting to serious harm or significant harm. My reasoning for this conclusion is as follows.

7. Citing a Fiji government press release from 2012[8] the applicant claimed in written submissions that he would not have access to welfare in Fiji because it is available to households and requires endorsement by a community leader which he could not gain, and even if he was able to access welfare assistance it would only be $30 and provided for three years. However, the reference to endorsement by a community leader in the press release actually relates to the Social Pensions Scheme for senior citizens over 70 years of age and hence not relevant to the applicant. The reference to households in the press release relates to the Poverty Benefit Scheme (PBS) and states that the PBS allowance can be paid to up to four members of a household. It seems the applicant has inferred from the reference to a household that one person households are not eligible. However, information about the PBS allowance I refer to in the following paragraph indicates that a person who is a member of a one person household, like the applicant would be, is eligible for the PBS allowance.

   [8] Tribunal file at f. 112: The Fijian Government, ‘Social Welfare programs for 2013’, 21 December 2012,

8. I put to the applicant at the hearing that contrary to his submissions information I had indicated that the Fijian government provided health services, free or subsidised housing, and welfare support which he would be able to access.  The applicant responded that he did not know about the welfare system in Fiji because most people were squatting and living in poverty. According to information in sources I have consulted:

   a.The Fijian government provides generous public health services including free primary and secondary health care.[9]

   b.The Fijian government introduced the PBS in 2013 to replace the Family Assistance Scheme (FAS) which was limited only to the individuals who were elderly, permanently disabled or chronically ill and expanded the coverage of welfare assistance to Fiji’s poor population.[10] Consequently, even seasonal labourers without a permanent source of income could be eligible.[11]

   c.The PBS provides assistance in the form of a monthly allowance paid to each member of a household (up to four members of a household and including a household of one) as well as a food voucher.[12] Initially the monthly allowance was $30 per person and the food voucher was $30 but since then the monthly allowance has increased to $110 and the food voucher to $50.[13]

   d.Unlike the FAS, PBS applications are not based on recommendations or endorsements but on an objective and evidence based assessment of variables such as property ownership, assets and income.[14] The assistance is provided for up to three years with able-bodied persons to undertake skills training to assist them to find employment or engage in income-generating projects.[15]

   e.The Fijian government provides accommodation and rental assistance to the destitute and low income earners through its funding of organisations and bodies such as the Housing Assistance and Relief Trust and the Public Rental Bond Board.[16]

   [9] DFAT Report at [2.24].

   [10] The Fijian Government, ‘Scheme to Provide Assistance to 50,000’, 1 July 2013,

   [11] The Fijian Government, ‘Poverty Benefit Scheme Ensures Objectivity in Selection Criteria’, 3 January 2014,

   [12] The Fijian Government, ‘Poverty Benefit Scheme Ensures Objectivity in Selection Criteria’, 3 January 2014, [Fiji] Ministry for Women, Children and Poverty Alleviation, ‘Poverty Benefit Scheme’ n.d. [current], Kalouniviti M, ‘Fiji Budget For 2017-18 Increases Spending By $459 Million’, Fiji Times Online, 29 June 2017, on Pacific Islands Report website,

   [14] The Fijian Government, ‘Government Welfare Assistance Strengthens Anti-Discriminatory Process’, 24 August 2013

   [15] [Fiji] Ministry for Women, Children and Poverty Alleviation, ‘Poverty Benefit Scheme’ n.d. [current], The Fijian Government, ‘Government Welfare Assistance Strengthens Anti-Discriminatory Process’, 24 August 2013

   [16] Rokosuka E, ‘$10K housing grant available for people earning less than $50K’, fijivillage.com, 1 May 2015, property.com.fj, ‘Budget Increase for Housing’ 10 July 2017, The Housing Assistance & Relief Trust n.d., ‘HART Communities’, [Fiji] Public Rental Board, Annual Report 2014 (Parliament of Fiji, Parliamentary Paper Number 62 of 2015, [document created 16/10/2015]), on Housing Authority of Fiji website, pp. 3, 19, 9, 14, 11 & 13.    

9. I find that even though it is likely to be difficult for the applicant to find employment and accommodation upon his immediate return to Fiji, he will be able to access income support via the PBS and/or housing assistance for the reasonably foreseeable future which will enable him to subsist and find accommodation. I find that through the PBS he will be assisted to find work or income generating projects within the three year limit period that assistance is provided. The three year period will give him the time to develop his communication skills and become accustomed to living in Fiji.  Further, the courses and training he has undertaken during his imprisonment in Australia[17] will be advantageous in his endeavours to earn an income in Fiji in the future. I note that the applicant submitted a Fijian Immigration Department work permit application form requiring disclosure of an applicant’s criminal record to the Tribunal before the hearing. I do not consider the form relevant to the applicant’s circumstances and give it no weight given the applicant is a Fijian national not a non-Fijian national seeking permission to work in Fiji.

   [17] Referred to in the protection visa application and during interview with delegate.

10. There is no evidence before me to suggest that the applicant would be denied any of the welfare, medical or other services referred to above due to his criminal record or any other reason. In light of the government provided and funded services the applicant would be able to access in Fiji, I find there is not a real chance he will be without accommodation, face significant hardship or be denied basic services which would threaten his capacity to subsist or result in other harm rising to the level of serious harm or amounting to significant harm as defined in s.36(2A).

    Harm from police and military

11. The applicant has repeatedly indicated and thus I accept that he does not wish to return to Fiji and that he will not do so voluntarily. It is thus plausible and I accept that there is a real chance that arrangements would need to be made by the Australian and Fijian authorities for his return to Fiji and that during the course of such arrangements being made his criminal record would become known to the Fijian authorities. I do not however accept that there is a real chance that the applicant will be subjected to serious harm or significant harm by the Fijian police or military due to his criminal record.

12. The applicant submitted a 2014 article regarding the challenges faced by Pacific Island countries, including Fiji, in reintegrating the increasing number of its nationals being deported from Western countries such as New Zealand, Australia and the United States due to crimes they have committed there. The report does not indicate nor have I found any credible evidence that Fijian nationals deported to Fiji due to their overseas criminal records have been subjected to serious harm or significant harm by the Fijian police or military due to their criminal records. When I put to this to the applicant at the hearing he stated that he was in contact with boys deported to Fiji due to their criminal records, including [Mr A], who had been harassed, mistreated and even beaten by the police on their return to Fiji. He also noted that he had told the delegate during his interview that he was slapped by a police officer in Fiji in the past.

13. I do not accept that the applicant was slapped by a police officer in Fiji. Firstly, if he had been slapped by a police officer I expect he would have referred to the incident in his protection visa application given he was claiming protection on the basis that he feared being subjected to police mistreatment if he returned to Fiji. Secondly, the applicant specifically stated in his protection visa application that he had not experienced physical harm in Fiji in the past and that the past harm he had experienced was mental and emotional.

14. I do accept that [Mr A] was physically assaulted by the police. According to the news report the applicant presented to the Tribunal, [Mr A] was deported several years ago yet the report does not indicate that [Mr A] had come to the adverse attention of the Fijian police before the alleged assault in 2016 because he was a criminal deportee. Nor does the report indicate that [Mr A] claimed he was mistreated by the police because he was deported from Australia due to his criminal record. Further, according to the news report [Mr A] was arrested for being drunk and disorderly, he acknowledged he was drunk and said he had been involved in a scuffle with a group of people prior to being arrested. There is thus another plausible explanation for the injuries [Mr A] reportedly sustained, that is, that they were the result of the scuffle he was involved in while drunk prior to his arrest. In addition, as was put to the applicant, a subsequent news report states that a police investigation into a complaint made by [Mr A] against the police was put on hold because [Mr A] failed to cooperate and attempts to contact him had been futile. The applicant claimed that [Mr A] decided not to pursue his complaint because he did not have faith in the police and authorities and because his family feared harm. If [Mr A] did not have faith in the police or authorities then I question why he made the complaint in the first instance. Finally, the claims made by [Mr A] and [Mr B] are untested allegations. I thus do not accept that [Mr A] was mistreated by the police as claimed in the news report submitted by the applicant and give the report no weight in assessing the risk of harm the applicant would face if he returned to Fiji.

15. I do not accept that the applicant had been informed by other criminal deportees that they have been mistreated by the police on their return to Fiji. His testimony about this was general and vague. If the applicant had maintained contact with people who had experienced the harm he claims to fear if he returns I expect he would have been able to provide more detailed and forthcoming evidence about those matters. It appeared instead the applicant was being intentionally vague.

16. I have had regard to the article presented by the applicant which refers to the Amnesty International report as well as the report itself. The report highlights a number of high profile cases since 2006 in which members of the Fijian police and military have been accused, investigated or convicted of abusing, mistreating, assaulting and even causing the death of criminal suspects or persons in custody. As serious as these cases are the report does not lead me to conclude that there is a real chance that the applicant will be subjected to serious harm or significant harm by the police or military in Fiji because of his criminal record. Firstly, not all the cases referred to in the report have been substantiated. Secondly, the number of cases detailed in the report occurred over a period of about 10 years which does not suggest that cases of mistreatment and abuse by the police and military occur with such frequency as to give rise to a real chance of a person with a criminal record facing such harm. Thirdly, in some of the cases the police and military officers are either under investigation or have been convicted and punished for their crimes which indicates that such conduct is not condoned by the Fijian government and authorities and that the police and military do not act with impunity.

1. At the hearing I raised with the applicant the issue of whether he faced a real chance of serious harm or significant harm due to his criminal record. I put to him that according to sources I had consulted the Fijian constitution provides for the right to freedom from torture, cruel, inhuman, degrading or disproportionate severe treatment or punishment,[18]  the Fijian government does not condone torture or violence by its security forces,[19] while there have been instances of Fijian security officers committing acts of very serious mistreatment and human rights abuses against persons in custody and suspected of committing crimes they appear infrequent and the government has taken steps to investigate and prosecute security officers involved in such abuses and there have been convictions.[20] He stated that due to his lengthy criminal history he would be harassed and mistreated which does not address the issue of real chance I put to him.

   [18] DFAT Report at [4.7],[4.11]; United States Department of State, Country Report on Human Rights Practices 2016 – Fiji (USDOS Report), 3 March 2017, at p2. 

   [19] The Fiji Times, ‘PM against human rights abuses’, 28 October 2016,   The Fiji Times, ‘State rejects torture report’, 10 February 2017,

   [20] DFAT Report at [4.4]-[4.5], [4.13]; USDOS Report at p.1,24-5.

2. In light of the above, I conclude that while there have been instances in which security officers in Fiji have subjected criminal suspects to serious harm and significant harm there is not a real chance that the applicant will face serious harm or significant harm in the reasonably foreseeable future due to his criminal record. There is no credible evidence before me that Fijian nationals returning to Fiji with criminal records are placed on an alert list, or that they are monitored, harassed, questioned or detained on their return to Fiji by Fijian security forces so as to amount to persecution involving serious harm or significant harm. I thus conclude that there is not a real chance that the applicant will face persecution or significant harm as defined in s.36(2A) in the reasonably foreseeable future if he returns to Fiji due to his lengthy criminal record.

   Concluding findings – protection criteria

3. On the basis of the preceding findings I have made that there is not a real chance that the applicant will face persecution involving serious harm in Fiji for the reasons he has claimed, both individually and cumulatively, I find that the applicant does not have a well-founded fear of persecution in Fiji within the meaning of s.5J. I thus find that he is not a refugee as defined in s.5H and hence I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

4. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I have made findings that there is not a real chance that the applicant will face harm amounting to significant harm as defined in s.36(2A) in Fiji for the reasons he has claimed. On the basis of those findings, individually and cumulatively, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (Fiji), there is not a real risk that he will suffer significant harm. I am thus not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Mila Foster
   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.