1728476 (Refugee)

[2023] AATA 1663

1728476 (Refugee) [2023] AATA 1663 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1728476

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Lilly Mojsin

DATE:4 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 04 January 2023 at 9:38am

CATCHWORDS
REFUGEE – protection visa – Fiji – family dispute against traditional custom – volunteer for human rights organisation and protest participant – beaten by military – delay in applying for protection visa – applied after long stay as unlawful non-resident and unsuccessful application for partner visa – separation, new relationship, marriage and children – wife and child’s mental health and developmental condition – work despite claimed injuries – inconsistent claims and evidence – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(a), (aa), 65, 423A, 424AA

CASES
Selvadurai v MIEA (1994) 34 ALD 347
SZRSN v Minister for Immigration [2013] FMCA 78

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 November 2017 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant arrived in Australia in August  2005.

3. The applicant who claims to be a citizen of Fiji, applied for the visa on 31 May 2017. The delegate refused to grant the visa on the basis that there was not a real chance the applicant would suffer serious or significant harm on his return to Fiji.

4. The applicant appeared before the Tribunal on 26 October 2022 [T1] and on 28 October 2022 [T2] to give evidence and present arguments.

5. The applicant attended the Sydney Tribunal, for a hearing, held by video. The Tribunal determined it was reasonable to hold a hearing by video and had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted. No concerns were raised by the applicant in relation to holding the hearing by video.

6. I am satisfied the applicant was given a fair opportunity to give evidence and present arguments. The applicant confirmed that he could hear and see and that he understood the interpreter. I was able to interact with the applicant and interpreter. All parties were able to maintain appropriate communication throughout the proceedings. The applicant was also provided with an opportunity to provide further written submissions post-hearing. I am satisfied that the hearing provided a real opportunity to be heard.

7. The Tribunal also received oral evidence from [Mr A], [Mr B] and [Ms C], the applicant’s wife.

   CRITERIA FOR A PROTECTION VISA

8. See Annexure A

   CONSIDERATION OF Claims and evidence

9. The applicant arrived in Australia [in] August 2005  as the holder of a transit visa TX771.

   • 12/06/2013 Applied for partner visa UK 820/ BS 801
   • 10/09/2014 Refusal partner visa UK 820/ BS 801
   • 30/09/2014 Applied for MRT review
   • 11/12/2015 Decision MRT affirmed
   • 08/01/2016 Applied for ministerial intervention - s351
   • 11/10/2016 Refusal ministerial intervention - s351
   • 31/05/2017 Applied for protection visa XA 866

10. In his PV application the applicant stated that he could speak, read and write English.

11. He claimed in his PV application as follows:

    ·seeking protection from Fiji which he said he needed to leave because of a ‘family dispute’. He says he is ‘too scared to return’. When asked if he experienced harm in Fiji, the applicant responded, ‘it was against our traditional custom’.

    ·In response to the question, ‘did you seek help within (Fiji) after the harm’ the applicant responded ‘traditional custom dispute all regarded as problem only solve by traditional laws of village’. He says that at the time his only ‘option was to come to Australia and try to settle here’.

    ·He says that he cannot return to Fiji because he ‘just feels that because of the nature of the dispute what the law does not take it seriously my safety is not guaranteed’. He says, ‘previous traditional dispute was not seen by authorities as something required for them to intervene’ and that ‘Fiji is a small country’. He is not sure if the authorities could protect him.

12. Prior to the Tribunal hearing the applicant provided the following relevant documents:

    • Medical Certificate from [Dr D] dated 18 October 2022
    • X-Ray Report  18/10/2022
    • Passports for [Ms C], [Master E] and [Miss F]          19/10/2022
    • Federal Court Orders 23/10/2018
    • Letter of support from [G], the Deputy Principal of [School] 17/10/2022
    • Letter of support from [Mr A] 25/08/2022- attesting to the applicant and family as one of his best friends who helps the community, he is trustworthy and peaceful
    • Letter of support from [Pastor H] 12/10/2022 – attesting to applicant being active member of [Church]
    • Letter of support from [Mr I] 18/10/2022 that applicant is faithful Christian, a volunteer for many and is of good character, well mannered family man.
    • Letter from ASIC 08/11/2017 for [Company]
    • A handwritten letter from former spouse signed [Mr J] – Undated requesting forgiveness and advising her son misses the applicant
    • Statement from [Mr B] -20/10/2022
    • Statement from applicant concerning his protection claims  20/10/2022
    • Letter of support from [Mr K] of [Organisation 1] -18/05/2005
    • Photo of the applicant showing his chest - Undated

13. A document titled Affidavit from [Mr C] [applicant’s spouse] dated 19/10/2022 attests to the couple having 2 children. Their daughter has been placed on the watchlist, in accordance with Federal Circuit orders.  The couple live in a house owned by the deponent and have a car loan, mortgage loan and an investment loan. She attests to the children and herself being emotionally dependant on the applicant. She was a victim of domestic violence and sexual assault and suffers depression. Their daughter suffers [Condition] and other medical issues. She attests to their numerous community activities and the affect separation will have on her family.

14. A  statement by the applicant provides information in regard to his application for a spouse visa in 2013 when he was married to [Ms L] and details of why that relationship broke down. He explains a number of sms messages he has provided. The copies related to issues between the couple post separation/divorce and the son of the applicant’s ex-wife.

15. Additionally, the applicant provided country Information. The information referred to comments on Fiji’s upcoming election, articles and blogs about brutality and violence by the army and police, torture, Prime Minister Frank Bainimarama shoving a political rival, articles about the 2000 coup and death of soldiers during the coup, military officers charged with rape in 2018 and details of a Fijian who obtained asylum in 2022.  

16. In a statement to the Tribunal, dated 21 October 2022, the applicant stated that

    §  I cannot go back to Fiji as I fear for my life. I worked as a volunteer for [Organisation 1] which is an NGO that takes a stand for human rights, peace, and justice.

    §  In the 2000 coup my father and brother were killed in the riots during the George Speight takeover in Fiji. I couldn't take them to hospital in time, they died on the way. When I went to the police station and the police said, 'Run from here as the army is inside.' I couldn't give them a proper burial.

    §  It hurt me a lot and until now it's still affecting me. This is the reason why I strongly stand up for justice. I am totally against coup, violence, and bloodshed.

    §  I am against the coup and coup leaders in Fiji. This is my stand and whenever there is a rally, protest or marches against the coup organisers, leaders and standing for a democratic government I join the rally any chance I get without thinking for my safety. This is because I don't want other people to go through what my family and I suffered. A lot of other families suffered the same thing that I had.

    §  Most of the times when we march or gather for rallies, we get roughed up by the army, but I didn't care as we were fighting for and supporting justice and safety of the people of Fiji.

    §  In 2004 girls were sexually assaulted and raped by several army officers in front of us at the military camp at [Location 1]. We couldn't do anything as we were also getting bashed repeatedly.

    §  The current Prime Minister of Fiji Frank Bainimarama, was there at the military camp. We were all standing stripped down to our under garments. We saw Frank Bainimarama. He was standing with other military officers, and someone yelled the next lot of prisoners including the journalists and human rights girls are coming. Frank Bainimarama got into overalls and mask covering himself head to toe. When the captives came, they were stripped down and put in the line. Frank started punching them and grabbing their breasts. He said to them 'If you tell anyone, we are watching you and you know what will happen.'

    §  I met [Mr B] during some rallies and marches that was held in Suva Fiji. We, along with other people used to hand out flyers (from the NGO's) and reach out and talk to people regarding the abuse and bullying they face from the military.

    §  The last rally in 2004 towards the end of November several organisations were marching for peace, justice, and democracy'. They were Women's Crisis Centre Red Cross Association SDL youth party Fijian Teachers Association Institute Samaritan Fiji Apex Club Fiji

    §  A lot of people took part in the march. The march started from [Location 2] and all the way to [Location 3]. During the march 3-4 army trucks came to [Location 3]. The military got out with their guns and started beating the people that were in the marches.

    §  In 2004 towards the end of November when I was participating in a march suddenly 3-4 army trucks came, and they all jumped out carrying gun. I was hit in the back with an object, and I fell flat on the ground. They picked me up and threw me at the back of the trucks which had green covers.

    §  They were keeping their boot on my head pressing me down. They kept hitting my back with the butt of the guns. There were other people in the truck as they were screaming in agony. They drove the truck for a while and stopped. They picked me up and threw me outside and then I saw that I was at the army camp again

    §  When they threw me out of the truck, I saw other people being tortured and [Mr B] was one of them. They were drowning him in a drum full of water, I ran towards them and attempted to stop them. They dropped [Mr B] on the floor and started beating me with punches and objects. It seemed endless. 

    §  They were more aggressive, more violent and kept beating me continuously, they kept kicking me on my sides, they kept hitting me nonstop with hands, feet and objects. They made me duckwalk, but I couldn't do this. As a result, they hit me with the butt of the gun, and I fell over flat on the ground. They kept jumping on and off my back. The others kept hitting me with the back of the gun.

    §  I had severe pain in my back, ribs and chest. They kept asking me to get up but I couldn't. They kept beating me until I fell unconscious. When I woke up, I found myself in the bush. It was raining and dark. I couldn't move and I just lay there in the rain praying to Lord Jesus to help me.

    §  When the sun came up, I heard dogs barking. The sound was coming closer and closer. I heard the sound of someone saying 'Vuaka Vuaka'(wild pigs). Someone came and the dogs were surrounding me. The person knelt beside me and asked what happened.

    §  I told him and he wanted to take me to the hospital, but I said to him 'I can't go to hospital because the army will find me and kill me'. The person who found me went back and brought help and they made a bamboo stretcher and carried me to their home.

    §  One old medicine man was called, and he helped take care of me. He asked me where the worst pain was, I told him my legs and back. When he checked my right leg and he said that your ankle is dislocated, and the tendons might be broken as the foot was twisted to the right side.

    §  The medicine man aligned my foot to its original position and bandaged it. I experienced excruciating pain during this and people had to hold me down while the medicine man aligned my foot. He then put leaves around it, He put a flexible bamboo stem at the bottom of my feet and braces on the sides. Then he bandaged it all over.

    §  The medicine man also found my back was broken, when he felt my back, he said one spot in my upper back feels uneven and out of place. The medicine man made me sit in a chair with a hole cut at the bottom for my daily needs. He bandaged my arms and torso to the chair, and I had to sit still for 7 weeks. He fed me cassava soup and medicine made from leaves during this time.

    §  I was terrified for my life; I was scared for the people who were helping me. I still am terrified as I am writing this as I am reliving what had happened to me. All this took place in [Village 1] in a remote area. I stayed with this family until I left Fiji.

    §  Around February 2005 I sent a message to [Organisation 1]. I asked one of people I was staying with to send a message to [Mr M]. They went to Suva market to sell their produce and managed to convey the message to [Mr M]. [Mr M] came to [Village 1] and visited me. He thought I was dead and he was happy to see me. [Mr M] said to me 'don’t come back to Suva as they will kill you if they know you are alive.' [Mr M] organised my passport and visa.

    §  When I was in transit in Brisbane, I received a message to delay my trip to [Country 1] because they had political fighting in their village.

    §  I panicked as I was not mentally stable from the trauma that I faced at the hands of the army in Fiji. I was running for my life, and I stayed back in Brisbane. Few months later a coup occurred in Fiji.

17. A witness, [Mr B] stated:

    §  I have known [the applicant] of [Organisation 1] from Fiji.

    §  We met in numerous rallies and marches in support of democracy, peace and justice. I was a member of SDL youth party and was involved in several political activist groups. I was involved with Mrs Kamikamica and Mrs Siwatibau for coalition for democracy and peace.

    §  On a number of occasions, we resisted the militaries threats and taunts. We were speaking out and telling people to take pictures of abuse (evidence). Tell your friends and family immediately about the abuse. Inform the police and take someone with you to the station. Handing pamphlet regarding democracy and human rights.

    §  After doing NGO work other activists including [the applicant] and I would go to the civic centre for refill (our boxes for flyers), morning tea and lunch. Then we get in the car and go to other places like [Locations 4-6] to hand out more flyers.

    §  On three occasions I was taken up by the army camp, there was one time with [the applicant] and other captives. We were beaten from civic centre to get in the army twin cab and taken to army camp in [Location 1]. We got punched, threatened, duckwalk, put into 44 gallon drum of water head first, banged with guns, run around military style.  We were told not to be seen in the city again doing activist work. Then we were dropped' off in [Location 7] near [Venue].

    §  On another instance in 2004 November, I was taken from [Location 3] with 3 other activists. I was already getting bashed by military with the other captives. Another load of captives arrived in the military camp.

    §  Two military people held me upside down and shoved my head in and out of the 44 gallon drum of water. [The applicant] ran towards me and called out to them Stop ! Stop !

    §  This distracted the soldiers, and they left me and started bashing [the applicant]. When they started torturing me again, I fell because I couldn't take anymore. I was winded out. I said to them (Military): 'I will tell my father who is also in the military [Mr N]; who joined the army with Frank Bainimarama and I live here in [Location 1].' This made them stop. I laid down and stretched my body in agony. My shoulder had popped out and my face was bleeding. I saw the motionless body of [the applicant] and then fell unconscious.

    §  I woke up in hospital, a few days later I found out that the people in [Location 1] rushed me to hospital from the [Venue].

18. The applicant provided information about the upcoming Fijian elections and consequences for those that speak up.

19. At the Tribunal hearing the applicant was asked about his dyslexia that he had advised the Tribunal about on his hearing response. Asked when he was diagnosed with dyslexia, he said that it has not been diagnosed but when he was in school, he struggled for words. He has difficulty sometimes in reading and his driving is ok. His wife says he has dyslexia.

20. I asked him if he can read, write and speak English. He said he cannot write English or Hindi either because he missed a lot of school when he was young due to asthma. He completed class 4. His mother passed away when he was young, it was in [Year]. He also finished school in [Year]. He helped his father on the farm. His father then started a [business] in [Year] and the applicant drove [Vehicle 1]s. His father ran the business until [Year].

21. His father also had a [Vehicle 2] and he drove the [Vehicle 2]. When his father passed away in [Year], he closed the business down. He then supported himself as his father had money and he was using that and doing some volunteering. He did not work full-time.

22. Describing his father’s passing he said that he was lying on the floor and he does not know what happened to his father. One army officer was there and he helped put him into the car. It was about 2.00pm. He received a phone call and he was told to come down to the government building in Suva. His brother and father were unconscious and lying down. He was in [Location 8], in the [Vehicle 2], when he received a phone call. He then put his father and brother in the [Vehicle 2]. The army officer that was there helped him. There were people running everywhere. He drove them to Suva hospital. The road was blocked, so he turned round the car. He went to Suva police station and ran in and they said the army took control. That was when he realised they had died. He does not know how they died. There was a road block by the army. He stopped the car and they walked over and said what are you doing. They looked and gave him one slap and he drove through and he went home. He took them home and he called his pastor and who then organised everything for him. When it quieted down he went and reported that they passed away. They did not take a report as the army was in charge. Afterwards, he worked casually driving a [Vehicle 2]. He did not sell his [Vehicle 2] but sold his father’s 3 [Vehicle 1]s.

23. He was a volunteer at [Organisation 1]. He joined the groups against the army, but then they were tortured.

24. He was assaulted by the army officers in Suva in 2002. He was marching for peace with [Organisation 1] and other groups, they were picked up, taken and beaten. They were protesting for peace and justice. They were against Indians and kept hitting. The march started at [Location 2] and went to [Location 3]. There was about 30-40 people. The army picked up everyone they could. There were 3 or 4 truckloads of people, Samaritans, Red Cross and Women Rights and Youth Club groups. This occurred about [Time] and they would then go to the park and share with other people. When they marched, people would join in and then other groups joined in. They were picked up on the way.

1. The next time they were marching from [Location 2] to [Location 3], it was in 2003. He cannot remember the date, it was [Mr M] from [Organisation 1] that organised the rally. He wanted peace. The rally was against the army to stop violence and have democratic government. He was beaten and slapped but they did not take them to army camp they just threatened them.

2. On the next occasion, in early 2004, he was in the march from [Location 2] to [Location 3]. It was the same group of people protesting. They got the park it was about [Time]. There were about 30 people, then others joined, he does not know how many people were behind.  Before they got to the park, the army was there and were wearing overalls and guns. They were more aggressive picked them up and threw them in the truck, took them to the camp and stripped them naked and punched them and hit him with the butt of a gun. There were about 10-15 people. Later more trucks came.  A group of army officers was there. He saw the PM Bainimarama. He was standing with other groups. They kept beating them and another group of girls were coming, Bainimarama put on a mask. He came out of a room. There were some girls and Bainimarama punched one of the girls and they were stripped down to their undergarment and he pressed their breast and said if you tell anyone. They beat them and the girls and later threw them out of the camp. He was there for 7 to 8 hours. They dropped him outside and told him to get lost.

3. In November 2004 they were marching from [Location 2] stand to [Location 3], the same group of people, the march started [Time]. They made it to the park and were giving the pamphlets, 4 army trucks came and started to hit people. He fell to the ground and they threw him on the truck and other people were also thrown in. He heard other people screaming. They pressed his head to floor of the truck and were hitting him on the head. They took him to the camp and when they stopped, they threw him out and he noticed [Mr B] who he had met. They took [Mr B] in another truck. He noticed they were drowning [Mr B] in water in a drum of water. Two officers were trying to drown him. They threw him out of truck.  He tried to call and when he held the army officers’ hand they left [Mr B], they started to beat him. There were so many army officers. They jumped on him and tried to force him to do the duck walk and he could not do it. He was flat on the ground. He had severe pain on the chest. He suddenly passed out. He does not know what happened to [Mr B]. He came to in the bush outside the army camp. He could not move. It was raining and he was just lying there. Somebody came along the road and he had a dog and they came closer. He heard the noise and the person kneeled down and asked him what happened. The man was a villager and he was hunting pigs that day. He went and got help and came back with others so they made a stretcher and carried him to the village. He was at his home for about 7 or 8 months, he was Fijian. When he went to his home, it is in [Village 1] village. He was able to stand up and walk after 8 weeks. He was scared to come out. He sent a message to  a person at [Organisation 1]. He left the village on 11 August 2005 and he came to Australia, he left the village the day before. He does not have family. [Mr M] paid them money, he does not know how.

4. Asked if he did not leave village how did he organise a passport. He said [Mr M] brought it to him. I put that he needed a photo, he said [Mr M] took the photo. I put that he needed an Australian visa, he said [Mr M] organised that. He did not tell him what visa. 

5. I put that he was not a leader of an organisation or a rally. He said that every time they saw him they picked him.

6. When he arrived in Australia he was not helped or assisted. He was going to [Country 1] and when he came they said do not come. He ended up in [City 1] and he went there, he stayed there a long time and he got a job. He started working in Australia in 2006 as a [volunteer]. He met a lady in 2010. He said the people working there were giving him food.   

7. I put to him that he did not apply for a PV for 12 years, indicated he did not have a subjective fear of persecution. He said he did not have the state of mind. He made an application for a partner visa, he lodged an AAT appeal and he sought Ministerial Intervention. He did this with the support of his partner. He was not in a state of mind and he was running with fear.  He did not ask for advice. He was represented by [Mr N], an immigration lawyer. His partner organised it and took him there.

8. I explained to the applicant that s.423A of the Act, in relation to protection visa applications made on or after 14 April 2015, states that if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal  must draw an inference unfavourable to the credibility of the claim or evidence.

9. I put to the applicant that he has told the Tribunal that [Mr O] completed his PV application but he can read, speak English so he was well aware of what was written in his PV. He said that it was because what he told him that he has written in his own way. He said he cannot write. He then agreed he is capable of reading the PV. He read it and saw and that is what he can do to help him without money.

10. The witness, [Mr B], stated he met [the applicant] at marches and rallies. He came to know him in 2004, when he met him handing out pamphlets at rallies, as he saved his life. It was in November. He was taken from [Location 3] to the army camp. He was attacked. His head was pushed into a 44 gallon drum of water and he only had his underwear on. He was tortured. His dad is a soldier. Before that incident they were taken from the park 3 times and were bashed up. Asked if there were any other times [the applicant] assisted him, he said 3 times. The last time was 2004. They drop us at the campgrounds. Asked how many times in 2004 he was with [the applicant] when he was harmed, he said it was 3 times. Asked about the 2 previous occasions the witness did not respond, choosing to speak about how he was handling out pamphlets. He was beaten 3 times in the presence of [the applicant]. He and [the applicant] were beaten up 3 times in 2004 together. I asked if in November 2004 was the only time, he was pushed into a drum he said that it was the last time he saw [the applicant]. I put to the witness that 2004 was a very traumatic time for him. He said yes it was and for the whole nation. Asked after the November 2004 what happened to him, he said a truck came with people and [the applicant] saw him and said stop, he was attacked and the rest were thrown from the trucks. After this incident he woke up in hospital. This was very traumatic for him, he has mental health issues still from this incident. I asked him why he did not tell the Tribunal in his own Tribunal application about the 2004 incident. He said he did not tell them everything only told them things, other things. I put he did not tell the previous Tribunal about being hospitalised, had his head put into a bucket in 2004, military harming him. He said he explained it. I said that he had told the Tribunal what had happened to him occurred after the Bainimarama coup. He said that is 2008. He said he told them about 2008-9 and did not mention 2004. He said in his application he concentrated on the way he was told to concentrate and not to be too long. I asked if told the previous Tribunal he was an SLD supporter. I put the SDL was in power at that time. He said he put Quarase in and Ratumara back. I put that he did not tell Tribunal about the traumatic events in 2004. He said his fear of going back was from what happened in 2008. He said it was from 2000. Asked if he had anything further, he said Bainimarama has not given date for election.

11. He wanted to provide the Tribunal information about his family background Australia is only there to help to stop China opening military base and Australia is now on its toes as Bainimarama got money and he thought Australia was going to come in and stabilise the place. He only saw the presence of Australian navy on seashore. The people are going to stand up and he want the Australia government to hear him. I explained this is an application for a visa and I am not able to affect the politics of the region.  

12. At T2 hearing I asked the applicant to confirm that he was called on the day of the coup to collect his father who was injured.  I asked him where this occurred, he said I t was the main entrance of the government.

13. I asked the applicant why he had not provided a death certificate for his father and brother. He said that he does not have anyone there and it is difficult to get things from there.

14. I put that at the last Tribunal hearing he spoke about an incident in early 2004 when he was taken from the park and thrown into a truck and taken to a camp and he saw on that occasion now PM Frank Bainimarama, who was standing there. He then put on a mask and he came out of a room and did something to some girls. Whilst Bainimarama was masked, he punched one of the girls, stripped them down to the garments, and pressed their breasts, and then he turned around and threatened him. He said ‘No’. He said Bainimarama said to him first and then the girls if “ you tell anyone, you know we are watching you”.  He said it to everybody that was there. He said our eyes are on you guys if you tell anyone. You know what will happen. Then he and the girls were thrown out of the camp. There were two times they were picked up and taken to the camp. They beat them and then let them go. That was at the beginning of 2004.

15. This happened two times. One time, they beat them and let them go in early 2004, April or May.

16. He does not know happened to the girls. They were beating them and pushed them into the room. When it was dark they let them go.

17. I put that this information about what happened in 2004 conflicts with the statement he provided with the Tribunal whereby he said the girls were raped in front of him.

18. The applicant then told the Tribunal that his family were in the hearing and he did not want to say. I asked the applicant’s witnesses, who were seated in the hearing room to leave.

19. I put to the applicant that at T1 he just said Frank Bainimarama pressed their breasts. He responded that when he said rape, it was “anything by force”. It is very hard for him to say because the Tribunal member is a lady member, he put his finger in them. I consider it is rape. He sexually abused them.

20. I asked about the ethnicity of the girls and he responded that “they were brought in the truck, they seemed to belong to a woman’s rights group. Before the truck came, somebody said the girls are coming. And some of those girls they are journalists”.

21. I put to the applicant that there are no reports of any abuse of women in early 2004 and if these women were journalists or members of women’s rights organisations there would have been reports of it. He responded “I can only tell you what happened there. The truth of what is happening there. It is still happening there. Just not reported”.

22. I put that there are also no reports of groups of people attending rallies and then being taken to the military camps and being abused”.  He said he is telling the truth, it is just not  reported.

23. I put that the organisations he had named that he claimed to have attended the rally that he went to in 2002-2004, none of those groups report on attending rallies or being abused or being harmed. These were Women's Crisis Centre  Red Cross Association  SDL youth party, Fijian Teachers Association  Institute Samaritan Fiji Apex Club Fiji have referred to their involvement on their internet sites and Apex clubs are dedicated to fellowship, self-improvement, and community service.  He said in Fiji all this news is published and for publication army controls that and it is happening now. even if there are foreign journalists and want to paint nay report they are deported. They had a police commissioner and he was from Australia. There was a leader at that time wanted to form a coup. He was suspended.

24. I put again that these particular organisations do not report attending rallies and being harmed. If these people were attending rallies, in the years that described, and they were being harmed during attending those rallies, there would be reports. These groups have reports. They have internet sites where they report on their activities.

25. The applicant said that when the army is controlling all are very scared, they can’t do anything. Everywhere there is army, their guns are on. Even if you go to the police station, the army is there.

26. I put that in 2004, the US State Department report indicated that independent human rights groups operated independently from the government. In 2004, there was a human rights commission that was investigating complaints. They were investigating abuses by the military police and officials. Government officials generally were cooperative and responsive to their views.  But there are no reports of these rallies he has been talking about.

27. The HRC appeared to be impartial and independent, and it continued to receive and investigate requests for assistance, some involving alleged abuses by the military, police, and prison officials. He said a lot of police and army were charged doing that, there is 2 group of army and one supports the coup and other support other side.

28. The applicant said that “there was a rally in which I as in. I went to the camp. And I was beaten. I don’t know if it was not reported. I didn’t report. My story, first time in my life, I told my partner. Before I didn’t speak to my problems. I am very hurt. I can’t tell anybody. What I do, I don’t know. I’m scared to go back”

29. He is scared to go back.

30. I put to the applicant pursuant to s.424AA the information that is the reason or part of the reason for affirming the decision under review. I explained that he could seek an adjournment to respond or respond in writing or he could respond immediately.

    §I put to the applicant that his witness [Mr B] was an applicant before the Tribunal[1] and that he had not claimed to the former RRT that he had been involved in any incident in 2004 whereby during a rally in November 2004 he was taken to army barracks and he had his head placed in a drum of water and was beaten and harmed by the army and subsequently hospitalised. 

    [1] RRT 1002784

    I indicated to the applicant that this information was relevant because it suggested that the evidence his witness gave was inconsistent with evidence he had given to this Tribunal and his was not a witness of truth.

    He said he would respond and said there is a lot of things he did not say. Since 2007 Indians are being harmed. When army gets in, they always blame us. He did not put that all in the paper and he is not educated to do that. He did not put about all the things that happened. His lawyer said do not make story too long. His de facto put it all together.

    §I put to the applicant that at the MRT hearing of his spouse visa application[2] he said that he arrived in Brisbane en route to [Country 1]. He stayed in Brisbane for a few days but inadvertently overstayed his transit visa. He then went down to Melbourne, where he had friends. He also approached various migration agents who all told him that he would be locked up if he approached the department. He remained in Australia.

    [2] MRT 1416154

    I indicated to the applicant that this information was relevant because it indicated he had obtained migration advice when he first arrived and he told the Tribunal he had not, it suggested he was not a witness of truth.

    The applicant responded, he had told the Tribunal his ex-wife had taken him to a Solicitor regarding his application, he did not ask this lawyer and he did not have the state of mind to apply for a PV earlier than 2017 as he was running with fear.  He went to Melbourne he did not tell all. His friend was an acquaintance. He went and talked to a migration agent and went and advised him. Once he came from [City 1] and spoke to a migration agent who stopped answering his call. His previous partner took him to a migration agent.

    §I put to the applicant that he had stated to the MRT that he is a trained [Occupation 1] and survived by doing cash jobs. He spent five years travelling between [City 2], [City 3] and [Town] and that he is in good health.

    I explained that this information is relevant because it is inconsistent with the evidence he provided to this Tribunal that he went to [City 1] where he did volunteer [work] and was unable to work due to injuries sustained when the military beat and harmed him.  This information suggested he was not a witness of truth.

    The applicant responded that until today he is volunteering. He has a certificate as [Occupation 1] but he cannot do work. He was not charging for his work.

    §I put to the applicant that he had told the MRT that apart from his relationship with [Ms L] and [Master P] there is no particular reason he cannot return to Fiji.

    I explained that this information is relevant because it is inconsistent with the evidence he provided to this Tribunal whereby he claims fear of harm for incidents that occurred to him between 2000-2004.

    The applicant said that somebody here in the office asked him if he had a representative and he said no, this time he is going to tell the Tribunal his life story. He said his advisor told the Tribunal. He filled out the form at [Mr N] Office.

    §I put to the applicant that in his statement dated 26 November 2015 and signed by him, he told the MRT that he travelled to [Country 1] in June 2005 as a volunteer worker in a village assisting the [Agency] of [Country 1], he returned to Fiji after a month. He had attended a Meeting of [Organisation 1] on 7 June 2005 and was elected [Official position]. 

    I explained that this information is relevant because the evidence he provided to this Tribunal was that he was in hiding in a village in Fiji until August 2005 after being beaten by the army in November 2004. I explained that the information is relevant because it is inconsistent and it indicates he is not a witness of truth.

    The applicant said that when he was in the village [Mr M] organised everything. He did not want him to come to Australia and organised him to [Country 1]. He did not put it all in his claims. One pastor wanted him to get out of Fiji. When he went back he did not go to Fiji and he went to [Country 2]. He was going to [Country 1] he received a phone call from person in village. “I received the call from the person in village saying you can’t come you have to hold back”. He panicked and he cannot go back to Fiji.

    §I put to the applicant that in his statement dated 26 November 2015 he told the MRT that 5 years previously his parents had died but he told this Tribunal that his father died in May 2000 and his mother in 1995.

    I explained that the information is relevant because it is inconsistent and it indicates he is not a witness of truth.

    The applicant said his real  mother died early and his step mother died later.

    §I put to the applicant that he told the MRT that other than his concerns about obtaining work in the Fijian economy he is in good health and that he is able to return to Fiji . He provided evidence of registering his own company, obtaining qualifications as [Occupation 1 and 2] whereas he has claimed to the Tribunal that he is not in good health due to an injury sustained in 2000- November 2004 and has been unable to work.

    I explained that the information is relevant because it is inconsistent and it indicates he is not a witness of truth.

    He responded that he still cannot work but he does not want to depend on government to look after him. He met his 2^nd wife and he has to provide for her. She was the one handling the money and he got someone to do the work and was putting things together. He helped his now wife to start the business.

    §I put to the applicant that in a report provided by [Psychology provider] dated 20 November 2015 he had told the psychologist that he was an only child. Further he was involved in a motorcycle accident which resulted in a vertebra in his upper spine being split into four pieces and he had to undergo fusion and a splint, and as he was not covered by Medicare. He also told the MRT that he sustained a motorcycle accident while driving in a paddock in [Town].  He broke his bone in his back but was unable to access medical treatment because he did not have a Medicare card. I explained that he had told this Tribunal that he had sustained injuries in Fiji at the hands of the military.

    I explained that the information is relevant because it is inconsistent and it indicates he is not a witness of truth.

    He responded that when he to the psychologist, the agent organised it.  The migration agent told him what to say to the psychologist. He cannot go back to Fiji.

1. I put to the applicant that everything he had told the MRT, ie in a declaration and giving evidence to MRT, was untrue.  He said that some of the things he did not say. Some of the things he did not know it was a declaration. When he was sitting in the office of the agent, they only asked him a few questions. The lawyer did it. He had no choice then but today he had a choice. Today he is telling the truth.

2. I put to the applicant that the medical reports he had provided to the Tribunal were dated 2022 and were not relevant to showing anything happened to him 18 or so years earlier. As for his photo it had no probative value.

3. I discussed with the applicant that he was not present during the torture and abuse described in the articles and blogs he had produced to the Tribunal, he was in Australia. Only one article refers to anything to do with the coup.

4. I put that he has not claimed harm in Fiji for his religion and is able to practise it on his return. He said religion will not be a problem but if he returns and brings things up he will suffer harm.

5. His wife’s father was pickup by police as he supports the opposition leader. He would not want to face what happened to him.

6. I put to the applicant that he has qualifications that would assist him to obtain a job in Fiji. There are pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. He said he cannot obtain employment as he is not physically fit and there you have to work. He can open a business in Fiji but if his life is in danger, he cannot open a business. His daughter cannot leave Australia.

7. I discussed the Fijian constitution which protects the lives of all people. The applicant did not agree.  He stated that the army only listens to its commanders and is controlled by Frank Bainimarama. Even the upcoming election is a big threat. Another coup can happen. There is a person who used to go and stand up for NFP. He said it is a bit risky.

8. I put that in Fiji there has not been a strong pattern of interference against low-level attendees of protests. The applicant said that organisers take the permit and now they do not give permit to anything. Whatever army says that is what is happening. Lots of people are scared. They are in hiding. No one wants to go there because the army is involved.

9. The applicant does not agree that the situation has changed and circumstances have improved. He says they put their man there and if anyone says anything against them, the opposition leader was arrested for nothing and police charged him giving a kiss to a lady.

10. I put that the army is a presence in Fiji but they are unlikely to get involved with the day to day activities of citizens. DFAT acknowledges that some assaults have occurred by the authorities but they have been charged. There are high profile cases that have gone against the police. DFAT further believes that corruption is not common amongst the judiciary. Whilst there were a number of coups in Fiji, the situation is not the same as previously.  

11. I also put that Fiji has an independent legal system and DFAT sources say that corruption is not common within the legal system. The applicant did not agree.

12. Asked about what he fears about returning to Fiji the applicant said that he will not survive.  He would lose his life because what he has seen.

13. I put to the applicant that he was not a high-profile politician, or a leader of any group involved in the coup or causing any of the leaders any problems, just an ordinary Indo-Fijian Christian living in Fiji before he left Fiji. I asked why the authorities would wish to pursue him 18-years later. He said that “we stand for elected government. I support NFP in Fiji election. In Fiji, if I’m supporting a party, I bring people to that party and that’s what they don’t want. Anyone supporting a democracy government and that is what I’m supporting”. They don’t follow the law.

14. [Mr A] told the Tribunal that he did not wish to state anything additional to the reference he provided other than to say “I want to say that I know [the applicant] for 5-years. I know he respect the law. We are with the law. He needs mercy for his condition and his family. I ask you to show mercy for him. I know him. He is one of my best friends”.

15. The applicant’s wife told the Tribunal “we are a family of 4. My kids are very dependent on myself and my husband. We cannot live without him. It will destroy us if we are split. That’s what I want to say”.

16. The applicant said that he has his partner and 2 children. His partner is operating a business in Australia. They cannot go back to Fiji. They might go to another country and seek protection. His partner is a NZ citizen. He cannot go to Fiji to die. His son does not sleep without him. He will be broken without him. He takes him to school in the morning. If he goes to NZ, NZ has the same law as Australia. They respect their law. They follow the law. If there was no problem in Fiji, he would go back there.

    INDEPENDANT EVIDENCE

17. According to DFAT’s most recent report – Fiji 20 May 2022, Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court.

    The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.

    The Republic of Fiji Military Forces[3] (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.

    [3] DFAT Country Report Fiji 20 May 2022

    The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.

    Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily

    The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.

    Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.

    Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.

    The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.

    Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.

    According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.

    Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.

    Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); Criminal defendants generally get a fair trial.

    Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.

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

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

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

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

    Street protests are relatively uncommon in Fiji. In the last several years protests have been especially uncommon due to COVID-19 lockdowns and restrictions. The lack of protests may also be related to the country’s turbulent political history and police restrictions; permits are needed for a protest, and these are sometimes denied. Violence has been reported in some protests and police will attend to violent incidents, but there is no suggestion that street protests or street protesters are inherently violent.

    DFAT assesses that protesters in general may be prevented by the state from protesting lawfully. DFAT notes that COVID-19 restrictions against protest have been enforced by police as they have elsewhere, including in Australia. Laws, including provisions outlawing sedition and the Public Order Act, can be used against protesters which can lead to prison sentences. DFAT has not observed a strong pattern of interference against low-level attendees of protests (protest leaders are more likely to be charged). On that basis, DFAT assesses that protesters face a low risk of official discrimination but notes that such discrimination is not impossible. There is a moderate risk of violence in the form of police brutality.

    REASONS AND FINDINGS

18. On the basis of his Fijian passport, I accept that the applicant is a national of Fiji and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Fiji. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

20. The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am not required to accept uncritically any, and all claims made, by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility', 'Guidance on Vulnerable Persons' and ‘Guidelines on Gender’. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details.  I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.

21. By way of background[4] about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57% of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young, more than 80% of people are under 54 years of age.

    [4] DFAT Country Report Fiji 2022

22. The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’. 

23. A medical report by [Psychology provider], dated 20 November 2015, does not suggest that applicant suffered from any psychological conditions in the past. The applicant advised the Tribunal that he suffers from dyslexia. He has not been diagnosed with the condition, but his wife told him that he has the condition. As the applicant does not have a medical diagnosis of dyslexia, I place no weight on this claim. The applicant at times during the hearing did not understand English and defaulted to use the interpreter but otherwise the applicant was able to participate in the hearing, he understood the questions asked and responded. I am satisfied the applicant had a meaningful hearing.

24. I do not accept that the applicant is a witness of truth for the following reasons:

25. Firstly, the applicant applied for a PV, in 2017, which was 12 years after he first arrived in Australia. The applicant lodged an application for an 820 Spouse Visa on 20 June 2013 after he had been in Australia since 2005. His explanation for not lodging a PV was that he did not have the state of mind and he was running with fear. I accept that he had made an application for a partner visa, lodged an AAT appeal and sought Ministerial Intervention and he had also spoken to a migration agent who stopped answering his calls.  

26. His explanation for the delay in applying for a PV was that he had told the Tribunal his ex-wife had taken him to a Solicitor regarding his application, he did not ask this lawyer and he did not have the state of mind to apply for a PV earlier than 2017 as he was running with fear.  He went to Melbourne he did not tell all. He went and talked to a migration agent who advised him. Once he came from [City 1] and spoke to a migration agent who stopped answering his call.

27. Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant's fear of persecution. In Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 the Court observed in regard to a delay in lodgment of a protection application: “In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth of the applicant's alleged fear of persecution. It is a rational consideration open on the material”.

28. The applicant came to Australia on a transit visa. He remained in Australia unlawfully and worked unlawfully. Whilst I accept that migrations agents explained to him that he would be “locked up” if he attempted to contact the department with the intention of returning to Fiji, the applicant obtained migration advice when he first arrived in Australia. Even though he feared being locked up, he nevertheless applied for a spouse visa. I am not persuaded that when attending a lawyer or a migration agent he did not ask about a PV or that a migration agent stopped answering his calls. I am of the view these are late inventions made to assist his application.  His delay in applying for PV until after he was refused a spouse visa and over 12 years after his arrival in Australia indicates a lack of a subjective fear of harm. 

1. Secondly, in his PV application, the applicant made no claims of harm because he held a political opinion, attended rallies and was attacked and harmed on a number of occasions for expressing his opinion. Rather he claimed he needed protection because of a family dispute, it was a traditional custom dispute.  

2. Section 423A states:

   (1)  This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision ), the applicant:

   (a)  raises a claim that was not raised before the primary decision was made; or

   (b)  presents evidence in the application that was not presented before the primary decision was made.

   (2)  In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

3. I have considered the Presidents-Direction-Conducting-Migration-and-Refugee-Reviews August 2018. For the purposes of section 423A, when considering whether the AAT is satisfied that the applicant has a reasonable explanation of why the claim or evidence was not raised before, a ‘reasonable explanation’ may include, but is not limited to (Migration Amendment (Protection and Other Measures) Bill 2014 - Addendum to the Explanatory Memorandum p4):

   (a) no reasonable opportunity to present the claim, e.g. interpreting or translating error made in the primary stage of the application

   (b) a change in the country situation affecting human rights occurred after the primary decision was made

   (c) new information relevant to the application became available, e.g. new documentary evidence of identity was forthcoming from the authorities in the home country

   (d) a change in personal circumstances allowing presentation of new claims, e.g. a new relationship (spouse or child) with a person who has protection claims in their own right

   (e) being a survivor of torture and trauma, where the ill-treatment has affected an applicant’s ability to recall or articulate persecution claims

4. The applicant, in his PV application, stated that he could read, write and speak English but at the T1 hearing the applicant said that he could speak and read English, not write it. Initially he claimed that [Mr O] completed his PV application and wrote what he was saying in his own way, it was what he could do without being paid. I am not persuaded that the applicant did not mention in his PV application, his political opinion or being attacked and harmed because [Mr O] did not write in the PV application what the applicant was telling him or because the applicant did not pay him. The applicant signed the PV application, he agreed that he read it. Therefore, I do not accept that the applicant has a reasonable explanation as to why the evidence of being attacked and harmed in Fiji was not presented before the primary decision was made.  I draw an inference unfavourable to the credibility of the claim.

5. Thirdly, the applicant’s witness [Mr B] gave evidence to the Tribunal that he was involved in 3 rallies with the applicant in Suva, in 2004. [Mr B] said that in November 2004 he was tortured by having his head forced into a drum and he was severely beaten by the military, resulting in his hospitalisation. [Mr B], was an applicant, in 2010, before the then RRT[5]. In his evidence to the then RRT[6] [Mr B] described a number of incidents of harm that occurred to him but omitted to inform the Tribunal of the incidents of harm in 2004 as described to this Tribunal. His explanation for the omission of  this ‘traumatic event’ was that the traumatic event continues to cause him mental issues and he did not tell the then RRT[7] everything “only told them things, other things”. He said he told them about 2008-9 and he did not mention 2004 as he concentrated on the way he was told to concentrate and not to be too long. I do not accept as plausible that a person who suffered such traumatic events resulting in being hospitalised would omit to inform the then RRT[8] who were assessing his claims for a visa. Nor am I persuaded that he was told to concentrate and not to be too long. Further, he said to that Tribunal[9] that his fears of going back to Fiji stemmING from what happened in 2008. When I queried him about not fearing harm after the traumatic events in 2004, he responded that the fear was from 2000. I am satisfied [Mr B] is not a witness of truth.

   [5] RRT 1002784

   [6] RRT 1002784

   [7] RRT 1002784

   [8] RRT 1002784

   [9] RRT 1002784

6. When put to the applicant, pursuant to s424AA, that Mr Olssen’s evidence was inconsistent with evidence [Mr B] had given to the Tribunal[10], the applicant responded that since 2007 Indians are being harmed and Indians are always blamed. He did not put all the information in his application, he is not educated to do that and his lawyer told him not make his story too long. His de facto put it all together. Whilst I accept that the applicant’s de facto wife “put it all together” and “he is not educated”, [Mr B]’s evidence at his own PV hearing[11] did not refer to the claimed incidents in 2004. I place no weight on [Mr B]’s evidence as I would have expected some mention of these traumatic events to have been made in his own PV application, if the these incidents had occurred. I find that [Mr B] was not involved in 3 rallies in Suva, in 2004. Therefore, I find that the applicant was not involved in 3 rallies in Suva with him. I also find that the applicant did not witness [Mr B] drowning in a drum of water in 2004 or that he attempted to stop these attacks or that either of them were harmed.

   [10] RRT 1002784

   [11] RRT 1002784

7. Fourthly, I put to the applicant that there are no reports of any abuse of women in early 2004 and if these women were journalists or members of women’s rights organisations there would have been reports of it. He responded “I can only tell you what happened there. The truth of what is happening there. It is still happening there. Just not reported”.  I also put that the organisations he had claimed to have attended the rally with in 2002-2004, ie. Women's Crisis Centre, Red Cross Association, SDL youth party, Fijian Teachers Association, Institute Samaritan, Fiji Apex Club, none of those groups reported on attending rallies or being abused or being harmed at the time claimed. Nor have they referred to such involvement on their internet sites.  The applicant did not agree stating that the army controls publication and foreign journalists who report are deported.

8. Further, in 2004, there was a Human Rights Commission (HRC) that was investigating complaints[12] and abuses by the military, police and officials.

   A number of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials generally were cooperative and responsive to their views. The HRC appeared to be impartial and independent, and it continued to receive and investigate requests for assistance

   [12] US State Department Report Human Rights Practices, Fiji, 28 February 2005 

9. Whilst I accept that the Australian who was police commissioner, at the time, was deported and people are scared of the army when it is in control, I do not accept the applicant’s explanation for the lack of reporting of the rallies in which he claimed to have been involved by the various groups named by him and the harm occasioned to the NGO participants. I am of the view that had these the rallies as claimed occurred and NGOs and other organisations had marched and had been abused and harmed, some mention would have been made in the independent evidence, such as Amnesty International, US State Department reports and DFAT.  Further there would be reports on at least some of those organisations internet sites where they report on their activities e.g. Women's Crisis Centre or some reporting by the HRC.

10. Fifthly, I put to the applicant, pursuant to s.424AA, that he had stated to the MRT[13] that he is a trained [Occupation 1] and he survived by doing cash jobs, spending 5 years travelling between [City 2], [City 3] and [Town] and he is in good health. When put to the applicant, pursuant to s.424AA, that he had told this Tribunal that he went to [City 1] where he did volunteer [work] and was unable to work due to injuries sustained when the military beat and harmed him, the applicant also said that until today he is volunteering. He has a certificate as [an Occupation 1], he cannot do work and he was not charging for his work. I accept that the applicant does volunteering work but the applicant’s evidence is inconsistent regarding his ability to work in Australia and his health.

    [13] MRT 1416154

11. I have considered a photo of the applicant with chest damage. Whilst I accept that the applicant has suffered injuries to his chest area, I place no weight on the photo as evidence that the applicant’s injuries were caused by the Fiji military. The photo is of no probative value.

12. A medical report of [Dr D], dated 18 October 2022, certified that the applicant had right ankle pain and middle back pain. He had osteoarthritis and tendinopathy of the right ankle and compression of the spine at T4 level with uneven anterior chest related to previous rib fractures. Whilst I accept the report indicates the applicant suffered certain injuries, including rib fracture, I place no weight on this medical report to suggest that these injuries were caused by the Fiji military, as claimed. 

13. In light of the inconsistent evidence, I am satisfied that the applicant worked in Australia as [an Occupation 1] and I find that the applicant was not injured by the military Fiji.  

14. Additionally, the applicant told the MRT[14], in 2013, that apart from his relationship with [Ms L] and [Master P] there is no particular reason he cannot return to Fiji. I put to the applicant pursuant to s.424AA that he claims fear of harm for incidents that occurred to him between 2000-2004. I explained that this information is relevant because it is inconsistent with the evidence he provided to this Tribunal. The applicant responded and said that somebody here in the office asked him if he had a representative and he said no, this time he is going to tell the Tribunal his life story. He said his advisor told the Tribunal[15], he filled out the form at [Mr N] Office. Whilst the applicant may have filled out forms at [Mr N]’s office when he made an MRT application, the claim that there is no particular reason he cannot return to Fiji is inconsistent with his claim of harm in the period 2000-2004 when he lived in Fiji.

    [14] MRT 1416154

    [15] MRT 1416154

15. Sixthly, the applicant claimed that he was in hiding in a village in Fiji until August 2005 after being beaten by the army in November 2004 and remained there until he came to Australia. Pursuant to s.424AA, I put to the applicant that in his statement dated 26 November 2015, he told the MRT[16] that he travelled to [Country 1] in June 2005 as a volunteer worker in a village assisting the [Agency] of [Country 1], and he then returned to Fiji after a month. The applicant responded stating that when he was in village [Mr M] they organised everything for him to go to [Country 1]. He did not put it all in his claims, but he did not go back to Fiji and he went to [Country 2] after he received a phone call. The applicant did not disclose his trip to [Country 1] to this Tribunal. I am satisfied the applicant went to [Country 1] in June 2015. I find that the applicant was not in hiding in a village in Fiji until August 2005 after being beaten by the army in November 2004. I am also satisfied that his return to Fiji after his visit to [Country 1] indicates a lack of a subjective fear of harm.

    [16] MRT 1416154

16. Seventhly, the applicant told the Tribunal his father died in the coup in May 2000 and his mother in [Year].  He told the MRT[17], in his statement dated 26 November 2015, that 5 years previously his parents had died i.e. 2010. When put to the applicant pursuant to s424AA,  he said that his real  mother died early, and his stepmother died later.  Even were he to have had a step-mother and to be confused regarding his mother and step-mother’s death, he did not explain the inconsistent evidence regarding his father’s death. I am satisfied his father died in 2010.

    [17] MRT 1416154

17. In light of my findings above, I find that the applicant is not a witness of truth who has created his claims of harm in Fiji in order to obtain the visa sought.

100.   As the applicant is not a witness of truth I find as follows:

·The applicant did not leave Fiji due to a family dispute

• As the applicant’s father was not killed during the coup in May 2020, it follows the applicant’s father and brother were not killed in the coup and the applicant was not stopped at a road  block trying to take his father and brother to the hospital in Suva or that the applicant could not give them a proper burial

·The applicant was not against the coup and coup leaders in Fiji. The applicant did not attend rallies, protests or marches against the coup organisers, leaders and standing for a democratic government

·As the applicant did not attend rallies or marches, in 2002, 2003 and 2004, he was not taken to military camp and girls were not sexually assaulted and raped by several army officers in front of him. The applicant did not get bashed repeatedly. As the applicant was not at the barracks the applicant did not see or speak to PM Bainimarama.

·The applicant did not march or gather for rallies or get roughed up by the army. He did not attend rallies with [Mr B] and hand out flyers nor did he reach out and talk to people regarding the abuse and bullying they faced from the military.

·The applicant did not witness [Mr B] drowning in a drum of water in 2004 or that he attempted to stop attacks on [Mr B]. He was not subsequently attacked until he fell unconscious and escaped/was taken to [Village 1], where he was looked after until he left Fiji.

·As the applicant was not cared for in [Village 1], he did not send a message to [Mr M] who organised his passport and visa.

·As the applicant did not suffer any trauma in Fiji, the applicant was not mentally unstable when he left Fiji.

·The applicant went to [Country 1] in June 2004 and returned to Fiji.

·The applicant did not go to [Country 2] after a trip to [Country 1].

101.   I have considered a Letter of Support from [Mr M] of [Organisation 1]. That letter, dated 18 May 2005, attests to the applicant being diligent and hard working and a person with potential as a trainer and leader in any development project. The minutes of the General Meeting 7 June 2005 of [Organisation 1] elected its first Office Bearers in June 2005 with the applicant being elected [Official position]. A letter dated 19 June 2005 from [Agency] of [Country 1] is an acknowledgement of the initiative of applicant, a volunteer, and [Mr N] in promoting and preserving cultural artefacts in [Country 1].

102.   I accept that the applicant went to [Country 1] as a volunteer, in 2005. Whilst I accept that the applicant was diligent and hardworking and a person with potential as a trainer and leader in any development project, and I accept that he volunteered for [Organisation 1], the evidence before me does not suggest that [Organisation 1] is an NGO that takes a stand for human rights, peace and justice or that it is involved in rallies and protests.

103.   As the applicant went to [Country 1] and returned to Fiji I am satisfied he did not have a subjective fear of harm on his return to Fiji.

104.   The applicant provided a number of articles to the Tribunal.

·Screenshot of Facebook page ‘Fiji’s Women’s Crisis Centre’.

·Amnesty article entitled ‘Fiji: A darker side of paradise’ dated 4 December 2016.

·Fiji Democracy article entitled ‘another beating means another cover-up’ dated 15 July 2013.

·Sydney Morning Herald article entitled ‘US cables reveal brutality of Fijian regime’ dated 27 August 2011.

·Article entitled ‘Fiji military torture revealed in murder trial’ dated 11 February 2009.

·Reuters article entitled ‘Fiji deports Murdoch newspaper publisher’ dated 2 May 2008.

·Sydney Morning Herald article entitled ‘Fijian coup leader’s brother-in-law charged over beating death’ dated 20 January 2007.

·Asia Pacific Report entitled ‘my torturers carry a heavy burden in their hearts says Fiji coup survivor’ dated 11 August 2021.

·ABC News article entitled ‘Fiji army tight-lipped on abuse claims’ dated 26 December 2006.

·RNZ article entitled ‘wikileaks allege rape by military in post-coup Fiji’ dated 29 August 2011.

·Fiji Sun article entitled ‘RFMF Tells of Mutiny: 21 Years on’ dated 31 October 2021 refers to previous coups.

105.   The applicant was not present in Fiji during the torture and abuse described in the articles and blogs cited above, he was in Australia. These articles are of no probative value to assist in the assessment of the applicant’s claims.

106.   I am satisfied that the applicant did not suffer any harm when he lived in Fiji. I am satisfied that the applicant had no adverse political profile or an imputed political profile in Fiji  when he resided in Fiji. I am satisfied that the applicant did not flee Fiji fearing serious harm for a refugee reason.

107.   I am required to consider whether the applicant will suffer serious harm for any reasons of his race, religion, nationality, membership of a particular social group or political opinion, enumerated in s.5J(1)(a), on his return to Fiji within a reasonably foreseeable future.

108.   The applicant is Christian Indian. I accept the personal references provided to the Tribunal regarding his volunteering work in Australia. He has not claimed harm in Fiji for his religion and, he has agreed is able to practise it on his return. There is no evidence before me to suggest that Fijian Christian Indians will suffer harm on their return to Fiji for their religion. I am of the view that were it the situation, it would be known to independent sources who report on Fiji such as DFAT, US State Department, UK Home Office and Amnesty International. I find that there is not a real chance the applicant will suffer serious harm for his religion on his return to Fiji, within a reasonably foreseeable future.

109.   As for his claim that he will be harmed on his return if he brings things up or speaks up, as the applicant did not bring anything up or speak up when he lived in Fiji. The applicant does not claim to “brings things up” in Australia The applicant did not suffer any harm in Fiji when he lived there. I do not accept, as plausible that the applicant will “bring things up in Fiji” or speak up on his return. Therefore I do not accept there is a real chance he will suffer serious harm for a refugee reason for publicly expressing his view, within a reasonably foreseeable future, on his return to Fiji.

110.   As for his wife’s family, the applicant claims that her father ([Mr Q] of [Company]) is a prominent businessman and that he is a supporter of NFP (National Federation Party) and was called in by the police for questioning. As I do not accept that the applicant is a witness of truth, I do not accept his claim, therefore I am not satisfied there is real chance that the applicant will have an adverse political opinion imputed to him because of his wife’s family and in particular her father.

111.   I accept that the applicant was a volunteer with [Organisation 1]. The reference from the [Organisation 1] does not suggest he suffered any harm as a volunteer. The [Organisation 1] does not suggest it is involved in political issues. The applicant’s work in [Country 1] as a volunteer was to assist with preserving cultural artefacts.  I am satisfied that there is not  a real chance the applicant will suffer serious harm for a refugee reason on his return to Fiji within a reasonably foreseeable future for re-joining the Institute and volunteering or for his work in [Country 1] as a volunteer.  

112.   I accept that there is a high level of unemployment in Fiji and that this affects all its citizens. The applicant is a trained [Occupation 1], he has qualifications that would enable him to work in Fiji. I do not accept that the applicant suffers from any illness that would prevent him working in Fiji. I also put to the applicant that there are pensions for people with disability, children and the very poor, there are bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. He said he cannot obtain employment as he is not physically fit and there you have to work.  As I have found that he did not suffer any harm in Fiji, I do not accept that his life is in danger. Whilst he said that he can open a business in Fiji, but only could not do so if his life is in danger, as I do not accept that there is a real chance that his life is in danger I am satisfied that he will be able to work. The applicant is innovative, he has [Occupation 1] qualifications and experience, he has/had a business in Australia with his wife.  As the applicant has not provided any medical evidence to suggest that he is not physically fit to work, I am satisfied that he will be able to work and to open a business.

113.   The applicant has acquired skills, experience, and motivation to gain employment in Australia. DFAT does not suggest that Christian ethnic Indians face discrimination in finding employment in Fiji. I find that the applicant can work in Fiji.

114.   The applicant has provided a number of articles, mainly referring to the upcoming elections. He claims that the upcoming election is a big threat. Another coup can happen.

·Fiji Times Article – ‘Fear of Losing Claim – Announcement of General Election date’ – dated 18 October 2022 discussing that NFP leaders claims Bainimarama fears losing

·Asia Pacific Report entitled ‘Draconian Fiji nowhere near genuine democracy says NFP’s Prasad’ dated 15 October 2022.

·Truth for Fiji BLOG entitled ‘Tortured’ dated 14 October 2022.

115.   I have read these articles and I accept that NFP leader claims that Bainimarama fears losing, and the above articles refer to views expressed by the NFP.

116.   A Civicus article entitled ‘Fiji government continues to silence dissent as impunity for torture persists’ dated 15 September 2021 comments that Fiji has “stifled human rights defenders by criminalising free expression, assembly and association”. Further, the sedition law imposes restrictions on freedom of expression.

117.   The applicant did not agree, when put, that the Fijian constitution protects the lives of all people. He stated that the army only listens to its commanders and is controlled by Frank Bainimarama. I accept that the army listens to its commanders. DFAT [18] states that Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Whilst the PM Bainimarama controls the army, elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.

[18] DFAT Country Information Report Fiji 20 May 2022

118.   Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs.

119.   I put that the army has a presence in Fiji, but they are unlikely to get involved with the day-to-day activities of citizens. DFAT acknowledges that some assaults have occurred by the authorities, but they have been charged. There are high profile cases that have gone against the police. DFAT further believes that corruption is not common amongst the judiciary. Whilst there were a number of coups in Fiji, the situation is not the same as previously. 

120. I accept that, as stated by DFAT, the Constitution guarantees freedom of speech, expression, 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. Fiji has an independent legal system. DFAT sources say that corruption is not common within the legal system.

121.   I put to the applicant that he was not a high-profile politician, or a leader of any group involved in the coup or causing any of the leaders any problems, just an ordinary Indo-Fijian Christian living in Fiji before he left Fiji. The applicant has never spoken publicly or written any blogs that are anti-government, nor has he suggested, that he has any intention of doing so.  The DFAT[19] assesses that social media users, who criticise the Government, face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. I therefore find remote the chance that the applicant will suffer serious harm for adversely speaking or writing about the government. 

[19] DFAT Country Report 2022

122.   The applicant claims that he will be pursued by the authorities because “we stand for elected government”. He supported NFP in Fiji elections. He brings people to that party and that’s what they don’t want”. They don’t follow the law.  The applicant did not claim to have been involved in the NFP prior to T2 hearing. I do not accept that on his return to Fiji he will be involved and support the NFP in the Fijian election and he will bring the people to the party. I have found that the applicant was not involved in rallies or political protests in Fiji, therefore I do not accept that he will participate in any future political rallies or protests, including as a pro-democracy supporter. I am not satisfied there is a real chance the applicant will suffer serious harm for his political opinion or imputed political opinion within a reasonably foreseeable future on his return to Fiji.

123.   I have considered the independent evidence cited herein.

·FWRM article entitled ‘The NGO Coalition on Human Rights calls for a stop to police brutality in Fiji’ dated 11 May 2021 refers to 2 reports of police officers utilising disproportionate and excessive force in detaining the suspect

·The Diplomat article entitled ‘A spotlight on police brutality in Fiji’ dated 30 November 2020  referring to Law Society expressed its concern about mounting reports of police brutality and sexual assaults. There were 400 charges of serious crimes laid against police or military officers in Fiji between May 2015 and April 2020. Of that 400, 16 charges were for rape, two for murder, nine for manslaughter, five for abduction, and more than 100 for assault.

·RNZ article entitled ‘Fiji army leaves probe into brutality claim to police’ dated 19 August 2020 reported that the army is not investigating claims its officers assaulted a labourer.

·The Pacific Project article entitled ‘Fiji death in custody reignites debate over police brutality’ dated 11 November 2020 refers to allegations of police brutality denied over a death in custody.

·Fiji Sun article entitled ‘Suspended cops who allegedly threw a man off bridge not challenging interview’ dated 17 September 2020.

·RNZ article entitled ‘Fiji military officers charged with rape’ dated 24 May 2018.

·The Guardian article entitled ‘Fiji’s police and military using torture with near impunity, Amnesty says’ dated 5 December 2016.

·Australian Institute of International Affairs – ‘Police Violence in Fiji: An Endemic Problem with no simple end in sight’ dated 30 June 2022

124.   I accept that, as reported above, police sometimes can and do use excessive force. But DFAT reports that accusations of police violence are commonly reported and regularly investigated. Further, cited above is a report that the army would not interfere with police investigations into the alleged assault.

125.   The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention. Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.

126.   DFAT[20] assesses that policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. Police protection is available but not consistently. Fiji has an effective police force and an impartial judicial system. The police Ethical Standards Unit[21] is responsible for investigating complaints of police misconduct. Fiji Human Rights and Anti-Discrimination Commission (FHRADC) can investigate complaints about police.

[20] DFAT Country Information Report Fiji 20 May 2022

[21] US State Department Fiji 2020 Human Rights Report

127.   As for the report by ABC News article entitled ‘Fijian Prime Minister Frank Bainimarama filmed shoving rival political in Parliament’s car park’ dated 23 August 2019, according to this article there was a police investigation. Director of Public Prosecutions Christopher Pryde said he would not press any charges because parliament’s privileges committee had already dealt with the issue[22].

[22] Al Jazeera news

128.   As for an article[23] provided by the applicant regarding a successful refugee applicant from Fiji each application is treated on its individual merits.

[23] Asylum saga ends with former Fijian prison warder securing protection in Australia - ABC Pacific

129.   As the applicant does not have an adverse profile in Fiji, I am not satisfied that the applicant will suffer serious harm for his political or imputed political opinion, or any other refugee reason, on return to Fiji within a reasonably foreseeable future.

130.   I have considered the applicants’ claims and evidence singularly and cumulatively. I am not satisfied that there is a real chance the applicant will suffer serious harm for a refugee reason in Fiji, if the applicants return to Fiji. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

131.   I must also consider whether there is a real risk the applicant, a Christian ethnic Indian, a member of [Organisation 1], will suffer significant harm on his return to Fiji. The applicant has not publicly criticised the government in any forum, he has not attended rallies and demonstrated against the government in Fiji or in Australia. He did not have an adverse political profile when he lived in Fiji for his political opinion, his membership of [Organisation 1] or any other reason. I do not accept that the applicant will criticise, speak adversely or take a public anti-government role on his return to Fiji, as discussed above. I therefore do not accept that there is a real risk that the applicant will suffer significant harm for criticising or adversely speaking or writing about the government on his return to Fiji. 

132.   There is no death penalty in Fiji.

133.   The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. 

134.   There is no evidence that there are widespread conditions of violence in Fiji, and I do not accept that there is a real risk of harm from non-state actors.

135.   The applicant did not have a political profile or an imputed political profile in Fiji. The applicant did not have an adverse profile as a member of [Organisation 1] nor as a pro-democracy attendee at rallies. I do not accept that he will be bringing up matters or attending rallies on his return to Fiji. I do not accept that there is a real risk that the applicant will suffer significant harm for his membership of [Organisation 1], for his political or imputed political profile, within a reasonably foreseeable future, on return to Fiji.

136.   I am satisfied that the applicant will make appropriate arrangements for his employment on return to Fiji.

137.   The applicant claims, and I accept, that the applicant’s daughter cannot leave Australia. His son does not sleep without him and will be broken without him. He takes him to school in the morning. I accept that they are a family of 4, the children and the applicant’s wife are emotionally dependent on the applicant. I accept that the applicant and his wife have mortgage commitments in Australia and the applicant does not wish to leave Australia.  In relation to the applicant’s potential separation from his children, should he return to Fiji  without his family, I am not satisfied such separation would involve cruel, inhuman or degrading punishment or treatment to the applicant. In SZRSN v Minister for Immigration & Anor [2013] FMCA 78 (1 March 2013) the court found that the action of forced separation to New Zealand of an applicant from his Australian children did not amount to significant harm in s.36(2A). I am satisfied that the applicant’s separation from his family does not amount significant harm to him.

138.   I am not satisfied that any difficulty the applicant may be subject to, on his return to Fiji, would amount to significant harm. Therefore, I am not satisfied that there is a real risk that the applicant would suffer significant harm, within a reasonably foreseeable future on his return to Fiji, as an ethnic Christian Indian Fijian who has worked as a volunteer for [Organisation 1].

139.   Having considered all of the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.    

140.   Therefore, the applicant does not satisfy the criterion set out in s.36(2)(aa).

CONCLUSIONS

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

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

143.   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

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

Lilly Mojsin
Member

ANNEXURE A

145.   The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

146.   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.

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

148.   Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

1. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

150.   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.

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

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

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

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

but does not include an act or omission:

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

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

…

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

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H    Meaning of refugee

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

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

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

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

…

5J     Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)     significant physical harassment of the person;

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

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

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

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

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

5K    Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L    Membership of a particular social group other than family

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

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

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

(c)     any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)     the person can access the protection; and

(b)     the protection is durable; and

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

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36     Protection visas – criteria provided for by this Act

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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