1803020 (Refugee)
[2021] AATA 733
•1 February 2021
1803020 (Refugee) [2021] AATA 733 (1 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1803020
COUNTRY OF REFERENCE: Fiji
MEMBER:Denise Connolly
DATE:1 February 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 1 February 2021 at 4:02pm
CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit Court remittal – name change – political opinion – vocal and active supporter of the SDL political party – religion – active member of the Methodist Church – criticism of the military regime – association with Pacific Indigenous Samaritan Association Inc (PISAI) and Ms Oni Kirwin – human rights abuses – Buturaki or torture culture – credibility concerns – inconsistent and unreliable evidence – legal departure on passport – voluntary return to home country – delay in seeking protection – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91R, 424AA, 424A
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 3 January 2014 and the delegate refused the application on 2 September 2014. The delegate was not satisfied the applicants were persons in respect of whom Australia has protection obligations.
The Tribunal (differently constituted) affirmed the delegate’s decision on 4 May 2016. The applicants appealed to the Federal Circuit Court of Australia and on 1 February 2018 the Court remitted the matter by consent with directions that the application be determined according to the law. The Consent Order notes the Minister conceded that the decision was affected by jurisdictional error because of the Tribunal’s failure to consider the first named applicant’s claim to fear harm if he returned to Fiji on the basis of his membership of the Pacific Indigenous Samaritan Association Inc (PISAI), when considering the complementary protection criteria in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 26 November 2020 by videoconference. The second and third named applicants appeared in person. The applicant was represented in relation to the review by his registered migration agent but the Tribunal was not able to contact him on the day of the hearing.
CLAIMS AND EVIDENCE
The applicant’s claims
The first named applicant (the applicant) was born on [date] in [City 1], Fiji. He is a citizen of Fiji. He does not have the right to reside in any other country. He speaks, reads and writes in Fijian and English. His religion is Methodist. He married the second named applicant [in] February 1992. They have five children. One child is deceased, two reside with him in Australia (the third and fourth named applicants) and two reside in Fiji with his sister. The applicant has two brothers in Fiji, one works as a [Occupation 1], the other as a [Occupation 2]. He provided a copy of his Fijian passport issued [in] 2007 obtained through normal procedures. He was issued a Tourist visa on 10 September 2013. He most recently arrived in Australia [in] September 2013.
In his written visa application the applicant made the following claims. He was a vocal and active supporter of the SDL political party. His wife was an active member of the Methodist Church in Fiji. Both were active against the military regime. He was vocal in his criticism of the military regime while working as a [Occupation 3]. He was taken to a military camp and subjected to inhuman treatment. His wife was also taken to the military camp. They were both assaulted. He was made to strip naked and run around the field with his hands on his head. His wife was kept in a cell, shouted, sworn and spat at. The applicant was targeted by the regime for being a critic. Their lives were in danger because he and his wife were outspoken in their criticism of the regime and had been active politically and in their roles as members of the Methodist Church. They fear the military regime, led by Bainimarama, and their agents. The applicant is well-known to the regime as he was very vocal in his criticism of Bainimarama, his ministers, the President and everyone else who had ruined Fiji.
In the visa application, in response to the question “what other names have you been known by?” the applicant answered “N/A”. He stated that he did not have any difficulties obtaining a travel document in his home country. He also stated that he had not ever applied to migrate to any other country, or for refugee status or protection in any other country.
Evidence provided to the Tribunal
The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate records that the applicant had previously travelled to Australia on two occasions as the holder of a Visitor visa, arriving [in] July 2011 and [in] January 2013, departing Australia about two months after each arrival. He last arrived in Australia [in] September 2013 with his wife and two sons as holders of Visitor visas, in effect until 26 December 2013. They applied for protection on 3 January 2014.
Political opinion
The delegate records that at the interview the applicant introduced the new claim that he was the [office bearer] of [Branch 1] of the SDL party from 2000 until 2013. He claimed to have been elected as [the office bearer] as he was a [Occupation 3] and well known to others in the area. When asked to clarify his duties as [office bearer] he said that he would organise and conduct meetings. When asked about the duration of his [political office], he indicated it was four years from 2009. When the inconsistency in his evidence was raised, he indicated that 2009 was the last occasion he attended a meeting as [office bearer] of the SDL branch. The delegate recorded that, when asked why he did not mention this in his written claims the applicant appeared confused and responded “it must have been missed in that one… My wife must’ve missed it and I must’ve missed it but the fact remains that I was [the office bearer]”. The delegate did not accept that the applicant was a [office bearer] and/or member of the SDL party in Fiji. He found his evidence on this issue vague, contradictory and inconsistent. He formed the view that his failure to mention that he was [office bearer] in his written claims undermined the claim. He also noted that the applicant was given ample opportunity to provide documentation supporting this claim but did not do this.
Difficulties with the Fijian military
The delegate recorded the applicant claimed that, because he was [office bearer] of the SDL branch, he was taken to a military camp. He claimed that his name is well-known in the Fijian military establishment and that soldiers came to his home and took him to the military camp. In November 2011 his wife was locked in a prison cell, and he was stripped naked and forced to run around the ground. He also had difficulties with the Fiji military prior to November 2011 and claimed he had also been taken to a military camp in 2007. The delegate asked why, in his written claims, he had only mentioned being taken to the military camp on one occasion. The applicant responded that he “just put down the latest one”. He could not remember the month in 2007 when he was taken to the military camp. He indicated he was arrested in 2007 for expressing his political views against the Fijian military to [clients of his business]. The delegate found the applicant’s claims vague and unconvincing. He formed the view the applicant’s migration history raised doubts about the credibility of his claims. He noted that despite claiming to have experienced difficulties with the Fiji military in 2007 and 2011, he did not seek protection when he travelled to Australia in 2011 and January 2013. He considered the applicant’s willingness to return to Fiji on two occasions to be a strong indication that he did not fear harm in Fiji. He also formed the view that the applicant’s ability to depart Fiji twice indicates that he was not of interest to the Fiji military.
Having regard to the applicant’s evidence and the country information, the delegate was not satisfied that the applicant had a well-founded fear of persecution.
Written and oral evidence given to the previously constituted Tribunal
The Tribunal has before it the information the applicant provided to the Tribunal including a transcript of his hearing on 5 January 2016. After receiving the delegate’s decision the applicant made new claims to the Tribunal. At his hearing in January 2016 he claimed that he officially changed his name from [Alias 1] to [the applicant’s family name] in 2007, although he could not recall what month. He claimed that “straightaway” after changing his name he applied for a passport which was issued [in] 2007. He was not able to provide any evidence regarding his name change but indicated he would do so after the hearing. He also claimed that the name of all family members had been changed. The Tribunal notes the applicant had provided birth and marriage certificates, predating 2007, in what he claimed to be the new name, [the applicant’s family name]. It also notes that in response to the question in the visa application about whether he had ever been known by another name he had answered “N/A”. His wife also answered “N/A” in her application.
After the applicant’s first hearing he provided a letter from the Registrar General’s Office, Fiji dated [in] January 2016 stating that “[In] December 2014 a child’s surname was corrected (COE) (correction of error) to read as [the applicant’s family name] from [Alias 1]”.
However subsequently, on 23 February 2016, he provided another letter was provided stating “[In] December 2004, the child’s surname was corrected (COE/AN) (correction of error/addition to name) to read as [the applicant’s family name] from [Alias 1]”.
The Tribunal notes the documents provided, with different dates and different reasons for the name change, may raise concerns about the authenticity of the documents. The Tribunal has considered the country information set out in the previously constituted Tribunal’s decision record, from the Registrar General, Fiji. It was taken from Fiji’s Births, Deaths and Marriages website, accessed 12 April 2016. This website no longer exists and the Tribunal has been unable to locate the current information on the issue from the Fiji’s Ministry of Justice current website, the Department responsible for the administration of and record keeping for births, deaths and marriages. This Tribunal is of the view it is reasonable to consider the information from the previously constituted Tribunal’s decision record as it was the information relevant at the time the applicant claims to have changed his name. The Registrar General Fiji recorded that errors due to error of fact or error of substance could be corrected, provided supporting evidence was given. The Tribunal formed the preliminary view that the reference to a correction of error in both letters indicates that corrections were made to the certificate/s rather than a name change by deed poll. This was discussed with the applicant at the hearing. The Tribunal notes the applicant did not provide a copy of the deed poll documents sought as evidence of his decision to change his own name. The applicant claimed that his former migration agent had the documentation and refused to release it because he had not paid his fees. He was given additional time to provide further submissions about his name change. On 21 April 2016 the applicant provided a document stating [Alias 1] was released from the Republic of Fiji Military Forces at his own request [in] 1998.
The previously constituted Tribunal was not satisfied that this document substantiated his claim to have changed his name. She also noted that there was conflicting evidence regarding the date the applicant claimed to have changed his name. This Tribunal notes his oral evidence was that he changed his name in 2007 but he provided a document indicating the name change was in 2004. He was invited to comment on this information, pursuant to s.424A, and in response he indicated he misunderstood the question and was referring to his name being changed on his current passport, which was [in] 2007.
At the applicant’s first hearing he indicated he joined the military in 1987 and left in 2000 to start his own [business] but in 2005 he started another business engaging ex-military personnel for work in [Country 1], a business which he claimed to operate for two years. It is noted however that in his visa application he indicated that he was employed with [Company 1] as a [Occupation 4] from 2000 to 2004 and as a director of [Company 2] from 2000 to 2013. He did not refer to a period in the military or the second business. The applicant responded by saying that he was worried about including his military service because he was told that soldiers are banned from entering Australia. He acknowledged that he did not mention the second business in his interview with the delegate.
The applicant said at his first hearing that he was able to leave Fiji because he had changed his name. However at his interview with the delegate as recorded in the decision record he said he had no difficulty leaving Fiji because he had friends working in the immigration network and Customs at the airport. He told the delegate that he has a [relative] who works in Customs and prior to travel he would telephone him and the [relative] would check if his name was on a blacklist. He stated that he did this prior to his travel in 2011 and 2013 and at no time was his name on the blacklist. In response to an invitation under s.424A to comment in writing on this inconsistency the applicant stated that it was not difficult for him to leave because he had changed his name on his passport. However he claimed he did check with his [relative] to confirm that his new name was not on the blacklist. He claimed that his name was changed in December 2004 but he changed on his passport [in] 2007.
When asked at his first hearing why he did not mention in his written visa application that he was the [office bearer] of the SDL [Branch 1] and why he gave different dates at the delegate’s interview regarding the period of his [political office], the applicant claimed he forgot the timeframe. He told the Tribunal his [office term] was from 2006 to 2013. When asked about his political activity the applicant said he [worked in Occupation 3] and often talked to [clients] about the military regime. He also [had clients who were] political officials.
When asked at his first hearing why he had not made protection applications on his previous visits to Australia, he indicated he had travelled here alone, staying with family in Queensland and the purpose of those visits was to find a place to live and apply for protection. He claimed he received advice from Fijian friends that it was not possible to apply for protection in Australia and that it would be better for him to return to Fiji but he later discovered he could apply for protection in Australia.
At his first hearing the applicant said that he was taken to the military camp on two occasions, March 2007 and “one is July and one is August”. On the first occasion he was picked up from his home by five military officers who took him to a camp in [City 1]. He was held for a day, required to remove his clothes, punched, kicked and hit. On the second occasion he received a phone call when he was in [City 2] and told to report to the military as soon as he returned to [Town 1].[1] He returned home later that day and dealt with some matters because he thought he might be killed at the camp. He then drove from [location], where soldiers were waiting for him, to [a specified location]. On arrival he was punched and warned not to say anything against the military regime and to stop training former military personnel. He was released and drove home. When asked why he was taken to the military camp the applicant indicated it was because he had formed a company which recruited ex-military personnel and subcontracted them to work in [Country 1]. He received a message from the Prime Minister to stop this activity. The Tribunal asked him to clarify this claim because he had previously claimed that he had been targeted by the authorities because of his political views. The applicant then claimed he was also taken to the military camp because of his political activity.
[1] However he also said he was dragged from home and taken to the military camp on two occasions.
At his first hearing the previously constituted Tribunal raised with the applicant its concern he claimed that certain events occurred in 2007 but he did not apply for protection until December 2013. The Tribunal also raised concerns that the applicant had previously lived in [Country 2] for approximately a year but voluntarily returned to Fiji in 2011. The applicant stated that he wanted to apply for protection in [Country 2] but was told by “the immigration department there, that we can’t apply for protection visa in [Country 2], that we have to go back to Fiji.”
The applicant also told the previously constituted Tribunal that the second named applicant was taken to the military camp in March 2007 because of her involvement in the SDL and the church. She was told to remove her clothes. She spent a day at the camp and was then released. The second named applicant did not attend the first hearing to give evidence.
The applicant stated at the first hearing that he had attended meetings of PISAI. Ms Oni Kirwin, of PISAI, attended the applicant’s first hearing as his representative but also gave oral evidence. Ms Kirwin told the Tribunal that anyone associated with her would be targeted by the Fijian authorities. She provided various reports regarding the Christian secessionist movement and the authorities’ responses to its political activities. The applicant stated the main focus of the organisation is to “help us get what we are trying to achieve; that is our protection here in Australia”. He indicated his involvement in the organisation was attendance at four meetings. He admitted he thought this may improve his chances of securing protection. (This conduct in relation to PISAI was disregarded by the previously constituted Tribunal member as she was satisfied he was engaged in it solely for the purpose of strengthening his claims to be a refugee. However she omitted to consider this claim under the consideration of the complementary protection criteria.)
Arrangements for the hearing on 18 November 2020
On 16 October 2020 the Tribunal invited the applicants to attend an in person hearing at 10am on 18 November 2020 in the Sydney registry as the applicants had told the Tribunal they were residing in a Sydney suburb. The representative wrote to the Tribunal requesting that the hearing be postponed because he was in [Country 2] and would not be returning to Australia until 2021. The Tribunal considered this request but decided the representative could participate in the hearing by conference telephone if he wished to do so.
On 27 October 2020 the representative wrote to the Tribunal and requested that the applicant be permitted to participate in the hearing by videoconference because he was in Perth and would be there on the hearing date. The Tribunal responded in writing and advised that it would need to reschedule the hearing which had been set down for 10am, as Perth was in a different time zone. It also noted the applicant’s advice that he resides in Sydney and asked whether he was intending to return to Sydney. It explained that he would need to write to the Tribunal seeking a postponement of hearing to a later time. The applicant did not respond within the timeframe requested.
On 5 November 2020 the Tribunal wrote to the applicants advising that it would reschedule to accommodate a video hearing in Perth. The applicants were advised that the hearing would commence at 12pm NSW time, 9am Perth time, and that the applicant was to attend the Perth AAT registry so he could appear by video link.
On 6 November 2020 the applicant’s representative wrote to the Tribunal, forwarding an email exchange from the applicant, between the applicant and the State COVID Command Centre, Western Australia Police Force (SCCC). It was apparent from the email exchange that the applicant was in fact in hotel quarantine in Perth. The applicant had written to the SCCC asking if he could leave the hotel to participate in the hearing at the Perth registry on 18 November 2020. SCCC responded by stating the applicant was not exempt from quarantine as he had entered as a “FIFO” and his quarantine period would not expire until 19 November 2020.
The applicant called the Tribunal on 9 November 2020 to ask if the hearing could be moved to another date because of his hotel quarantine. He indicated that his release date might be 19 November 2020. The Tribunal officer asked the applicant to clarify if he was being released at midnight on 18 November 2020 or at midnight on 19 November 2020. He indicated he would clarify this and inform the Tribunal. He also advised that he would be flying out to the mines shortly after his quarantine finished but he was not sure of his departure date. He was asked to provide the Tribunal with this information as soon as possible. The applicant did not contact the Tribunal again. A Tribunal officer attempted to call the applicant but the call went to voicemail. The Tribunal officer left a message requesting that the applicant return the call.
The applicant telephoned the Tribunal officer and advised that he had not received an answer from the authorities about when he would be released from quarantine or when he would be flying to the mines. He asked if a video hearing could be conducted from his hotel room. It was explained to him that it would depend on his internet connection. He confirmed that he would provide the Tribunal with information about his departure flight as soon as possible. The next day the applicant contacted the Tribunal advising that he would be released from quarantine at midnight on 19 November 2020. The Tribunal officer explained that the Tribunal could hold the hearing on 23 November 2020. The applicant claimed that he was still did not know when he would be departing Perth for the mines. The Tribunal decided to proceed with the hearing as scheduled on 18 November 2020.
On 11 November 2020 the Tribunal sent the applicant an SMS hearing reminder advising that his hearing would proceed as scheduled on 18 November 2020. He later contacted the Tribunal to confirm that the hearing could be conducted by videoconference. He confirmed that he had a private room and that he would be able to participate in a video hearing from his room. However his family members, who were also visa applicants, were still residing in Sydney and could attend the registry in person. A test was undertaken to ensure that the applicant could participate by video from his phone.
Later on 11 November 2020 the applicant emailed the Tribunal and advised that he could be flying out of Perth on 20 November 2020 but he might be flying out on 19 November 2020. He indicated that he believed the best option for the hearing was for it to be conducted by videoconference from his hotel room on 18 November 2020 as scheduled. The Tribunal considered the information in relation to his departure from Perth as a FIFO worker and decided that it was appropriate to hold the hearing on 18 November 2020 and take the applicant’s evidence by videoconference. It was confirmed that the secondary applicants would participate in person by attending the Sydney registry.
On 16 November 2020 the Tribunal twice attempted to contact the representative by phone to ascertain whether he would be participating in the hearing, however both attempts were unsuccessful as the calls could not be connected.
Further evidence provided to the Tribunal
Prior to the hearing the applicant provided to the Tribunal a statutory declaration in which he made the following claims. He did not apply for the protection the first two times he was in Australia because he did not know how to. He and his wife were SDL supporters and staunch Methodist church members who were very active in their opposition to the Bainimarama military coup of December 2006. They suffered cruel and degrading treatment by the military in 2007 which continued, on and off, until 2010 when they were forced to leave for [Country 2]. They were specifically targeted for actively campaigning against the military takeover and seeking the return of democracy and indigenous rights.
The applicant also claimed that he changed his name from [Alias 1] to [the applicant’s family name] in 2004 to get rid of any connection with his military past as, around that time, Bainimarama was making threats against the Qarase government. He then waited to apply for his passport and did so in 2007 because the military was starting to harass people opposed to the takeover, including himself and his wife. He asked friends to help him change his name.
The applicant claimed in 2010 he and his family decided they should leave Fiji as many Fijians were being subject to police and military brutality.
The applicant claimed that he did not mention his military service in his protection visa application as he was worried it would be rejected if the Australian authorities became aware of the information. He left the military [in] 1998.
The applicant claimed that the second and third named applicants’ names were changed in 2014.
In regard to his reference to his name being on a watchlist, the applicant indicated his new name was not on the watchlist as the military were not aware that he had changed his name. He believes this explains why he could leave Fiji without raising any alarm.
The applicant claimed that he was a member of the SDL [Branch 1] from about 2000/2001 to 2006 and [office bearer] from 2006 to 2013.
The applicant claimed that he was taken to a military camp on two occasions, in March 2007 and July/August 2007. On the first occasion he was picked up from his home and taken to the camp. On the second occasion he was asked to attend the military camp which he did, where he was hit with a gun and punched. The military’s interest in him was in part because he was involved in a group that was recruiting and sending former military officers to [Country 1]. He was asked to stop the recruitment but he was trying to help former military officers with opportunities.
The applicant claimed that his wife was taken to the military camp at the same time as him and subjected to assaults and abuse. This was on account of her membership and activism within the Methodist Church, including taking a stand against the military takeover in December 2006. He claimed that Bainimarama continued to attack the Methodist Church as late as 2017.
Regarding his association with PISAI and Ms Kirwin, he claimed members of the group who were in Fiji around 2015 have been charged and imprisoned for exercising their right to self-determination. He claimed that in 2015 Bainimarama threatened to track down and jail Fijians abroad who were supportive of secessionist plans. He claimed that he joined because he believed in the cause and not to further his own interests and claims for protection. He believes he will be marked by Fijian authorities for attending meetings and he will not get a fair trial if he returns to Fiji.
The applicant is concerned about the Fijian police and military having a culture of bashing civilians. He referred to Bainimarama’s reference to Buturaki or torture culture which persists within the military and police. He believes the authorities would not see his political activity as low level engagement as he has been vocal and involved in former military officers being placed in [Country 1]. He believes his wife will also be the subject of interest by the authorities on account of her involvement with Ms Kirwin and PISAI, and soldier placement in [Country 1].
The applicant claims that if he returns to Fiji he will not be able to secure employment or relocate as the military will find him. He will be blackballed and potential employers will be dissuaded from employing him.
The applicant provided various articles and general country information about human rights in Fiji, the Methodist Church, Buturaki culture which the Tribunal has taken into account.
Hearing on 18 November 2020
The applicants appeared before the Tribunal on 18 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. Attempts were made to contact the applicant’s representative to facilitate his participation however they were unsuccessful. The Tribunal asked the applicant at the commencement of the hearing if he knew whether his representative intended to be involved in hearing. He asked whether the Tribunal had the representative’s phone number. He was informed that there were attempts made to contact the representative. It was agreed the Tribunal would proceed with the hearing.
The applicant indicated he flew to Perth after receiving the Tribunal’s hearing invitation. He did not inform the Tribunal that he was going to Perth because it slipped his mind. He had been unemployed for a long time and he was concerned about supporting the family and paying the bills. He was still not sure when he would be flying to the mines; maybe the day after the hearing. He did not know when he would be flying out of the mines and returning to Perth. The arrangement was that he worked for two weeks and have one week off but he would probably be staying at the mine site in that week.
The Tribunal explained that it was not bound by the previously constituted Tribunal’s decision but that it had the information he provided to the Tribunal before it. It explained that after he sought judicial review, it was decided by consent that the last Tribunal had failed to consider his claim to fear harm if he returned to Fiji on the basis of his membership of PISAI, when considering the complementary protection criteria.
The Tribunal noted that it had forwarded to the applicant a courtesy copy of the previously constituted Tribunal’s decision record. When asked if he had read the decision and if there was anything in it that was incorrect, the applicant confirmed that he had read it and indicated the information in it was correct. When asked if anything was missing, he confirmed that there was nothing missing from that decision record.
The Tribunal asked the applicant about his family in Fiji. He indicated he has son aged [age] and a daughter aged [age] living in Fiji with his sister. His daughter is still at school. His son is not working. He supports his family in Fiji. He has brothers in Fiji; one working as a [Occupation 1] but the younger brother is not working.
The Tribunal asked about the applicant’s family in Australia. He indicated that his wife and two sons live with him in Australia. He also has cousins and sisters in Australia. His wife has an uncle and younger brother living in Australia. His wife and sons live in [Suburb 1] with his sister’s son and two other males.
Regarding the applicant’s employment in Australia, he indicated he had not yet signed a contract but he has secured a position in the mines as a [Occupation 5] for two years. He last worked as a [Occupation 5]/labourer [in] NSW. That work ceased just before the pandemic. His wife was working but she suffered a work-related injury and is receiving worker’s compensation. The family has been supported by that income. His son works on a construction site. His wife’s brother was here working in [occupation]. He is a permanent resident having been granted a spouse visa.
The Tribunal asked the applicant about his travel outside Fiji. He indicated he first went to [Country 2] in 2009 and stayed there for nearly a year. He worked as a [Occupation 4]. He returned to Fiji in 2010. He has travelled to [Country 2] three times, returning after the first trip because his eldest son died in [Country 2]. His son suffered [medical condition]. He was [age]. The applicant returned to [Country 2] in 2010 and 2011 as a visitor.
The Tribunal asked the applicant why he last came to Australia in 2013. He indicated that he came because he feared for his life. He had to get away from the military. The Tribunal asked the applicant when he first feared for his life in Fiji. He indicated it was in 2007. The Tribunal asked why he did not make an application for protection the first time he left Fiji, when he went to [Country 2] in 2009. The applicant indicated that he did make a protection visa application in [Country 2] in 2009 but it was not approved. The Tribunal noted that that information was not given in his first hearing. He claimed that he had told the member.
The Tribunal noted that the applicant had indicated in his first hearing that he did not apply for protection until 2013 because he did not know how to and he was discouraged from doing so. It also noted that he did not admit to applying for protection in another country on his visa application. It noted he had not told the previously constituted Tribunal at his hearing about a [Country 2] protection visa application. It asked why he had not told the previously constituted Tribunal that he had previously applied for protection. He indicated it did not occur to him until this Tribunal mentioned [Country 2]. However he then repeated that he applied for protection in [Country 2]. The Tribunal noted at the Tribunal hearing on 5 January 2016 the applicant stated he was told he could not apply for protection in [Country 2].
The Tribunal asked the applicant when he last had problems with the authorities in Fiji prior to his most recent travel to Australia. He indicated that he had problems in 2007, 2011, 2012 and 2013. The Tribunal asked the applicant about the last time he had difficulties with the authorities. He indicated he had problems in 2012 or 2013. He indicated he had problems because he was the [office bearer] of the SDL [Branch 1].
The Tribunal asked the applicant about the name he is known as according to the Fijian authorities. He indicated it is [Alias 1]. He claimed that this was the name he used as [office bearer] of the SDL [Branch 1].
The Tribunal asked the applicant when he first had problems with the authorities in Fiji. He indicated it was in 2007 because he was the [office bearer] of the SDL [Branch 1]. He was also a [Occupation 3] speaking out against the government.
The Tribunal asked the applicant about his involvement in PISAI. He indicated he joined about two months before his hearing in 2016. With respect to his involvement, he supports the proposition to form a new government in western Fiji. The Tribunal asked the applicant if he joined merely to strengthen his claims to be a refugee. He acknowledged that this was the case but also indicated he does not like Bainimarama.
The Tribunal raised with the applicant issues of concern regarding his evidence. It first invited the applicant to comment on the concern that the applicant had been to Australia three times and did not apply for protection on the first and second occasion. It also noted that he went to [Country 2] in 2009/2010 and did not apply for protection. It explained that it may form the view that if he was genuinely fearful and had been harmed in Fiji he would not have voluntarily returned to Fiji on several occasions. The applicant repeated his claim that he did apply for protection in [Country 2]. However with respect to his failure to apply for protection in Australia on his first two visits, he claimed that he did not know about protection visas. The Tribunal explained that it may not accept he was unaware of protection visas given his claim that he sought to apply for one in [Country 2].
The Tribunal noted that the applicant last arrived in Australia in September 2013 but did not apply for protection until after his visitor visa expired. The applicant indicated he had every intention of applying for protection on that occasion but he was thinking of his family. He wanted to go back to Fiji to discuss the ways the family could get away from Fiji. He was also waiting for his wife and son to arrive in Australia before he applied for the protection visa. They did not come with him on his first and second visits to Australia.
The Tribunal invited the applicant to comment on the concerns raised by his evidence about his name change. It noted that he had told the previously constituted Tribunal that he changed his name in 2007 because of the problems he was having in Fiji. However he subsequently provided documentary evidence indicating, first that a name was changed in 2014 and subsequently that the name was changed in 2004. However it noted that this was before he had problems with the authorities. It also noted that on his visa application form he had responded to the question about a name change with “N/A”; that he had previously claimed that his name was well known to the military; and that he has since claimed that he changed his name because he left the military. It explained this explanation may not be consistent with other evidence he has given. The applicant claimed he changed his name in 2004. His birth certificate was then changed. However he did not change his passport name until 2007. Regarding being well known to the military he stated he was known as [Alias 1].
The Tribunal noted the applicant first mentioned that he changed his name to the Tribunal. It explained that this might cast doubt on the claim. He indicated that might have forgotten to tell the delegate or maybe the delegate forgot to ask him. The Tribunal questioned why the delegate would ask him if he changed his name, given he had indicated on the visa application that he was not known by any other name. He indicated the question on the form was not clear to him. He indicated the Fijian Registry had lost his old birth certificate with his previous name [Alias 1]. He contacted them asking for the old birth certificate and the only thing they could give him was a letter, referring to the two letters provided to the previously constituted Tribunal, first indicating the changes made in 2014 and subsequently claiming the change was made in 2004. The Tribunal raised the concern about the inconsistent correspondence with him. The applicant indicated got the letter because in 2014 he needed a birth certificate.
The Tribunal noted that the applicant’s marriage certificate and birth certificates, including his own, issued since 1996 do not use the name [Alias 1], but rather his current name [the applicant’s family name]. Also on his birth certificate his father is recorded as having the [same name as the applicant]. The applicant repeated that he was always known by the name [Alias 1] and no one knew him by his current name. He indicated he obtained those documents after he changed his name.
The Tribunal raised with the applicant that he had omitted to mention his military service in his visa application. The applicant indicated at the time the military were banned from entering Australia. The Tribunal noted that the visa application was made after his arrival in Australia so this would not have affected him.
The Tribunal asked the applicant whether he changed his name before or after he formed the company providing military services to [Country 1]. He indicated he changed his name after he formed the company. He indicated he formed the company in 2005. He then corrected his evidence and indicated he formed the company in 2004. The Tribunal noted the applicant told the previously constituted Tribunal that he started the business in 2005. He had no further comment.
The Tribunal noted the applicant had no difficulty leaving Fiji on several occasions. It noted his claim that he changed his name in 2004. It explained however that it may form the view that, if he was well known to the authorities, they would have known by 2010, the first time he left Fiji for Australia, that he had changed his name. It explained it may not accept the authorities would not have known he had changed his name, given his claim that he came to the adverse attention of the authorities in 2007, three years after the claimed name change. The applicant claimed the military only knew him by the name [Alias 1].
The Tribunal explained that the applicant had given different accounts as to the reasons why he had no difficulty leaving Fiji. It noted he told the previously constituted Tribunal that he had changed his name. However the delegate recorded that in his interview he said he had no difficulty because he had friends in the immigration network, but that he also told the delegate his cousin worked in immigration and checked whether he was on a blacklist. It explained that it may form the view these explanations are inconsistent and cast doubt on his claim to have been of adverse interest the authorities. The applicant indicated he kept ringing his cousin but only [Alias 1] was on the blacklist and that was why he could depart Fiji.
The Tribunal noted that the applicant had not raised his [political office] in his written visa application. It explained this may cast doubt on the claim. The applicant indicated that he had been the [office bearer] since 2006. He thinks his first lawyer left things out of his visa application.
The Tribunal explained it may form the view that his support for the SDL and his political activity were low level and that he would not be of adverse interest to the authorities if he returned to Fiji. The applicant indicated that being [office bearer] was very challenging as he had to avoid the military. However he was able to do this because he was known as [Alias 1] in the military and in the SDL.
The Tribunal indicated it may accept there was some altercation with military officers, however it may form the view that this was a long time ago now and it would no longer cause him to be at risk. The applicant indicated after the coup the military were concerned that his business was training over a thousand military people. The military were concerned that they may overtake the military. He made general reference to Ligairi having been an advisor and then recruiting military officers from the counterrevolutionary warfare unit in activities against Bainimarama.
The Tribunal explained to the applicant that there is current country information indicating that there are 200,000 members of the Methodist Church, which has now called for the separation of church and political activity. It explained that DFAT assesses overall that there is now little to no official or societal discrimination against members of the Methodist Church based on their religion. It also explained that there are no remaining restrictions on the church’s ability to hold public meetings and the Tribunal may form the view that Methodists are now safe and will not be harmed in Fiji. The applicant indicated his wife still has a fear of returning to Fiji because of what happened. He indicated that her parents passed away and she was granted a visa allowing her to depart Australia but did not go back due to her fear.
The Tribunal explained that DFAT reports that individuals associated with PISAI are at a low risk of harassment, arrest or detention by the government solely for being a member or supporter. It explained that it may not be satisfied the applicant would be harmed merely because he has been associated with the organisation. The applicant indicated that it is widely known that Fiji monitors what is happening in different countries.
The Tribunal noted the applicant has claimed that if he returns to Fiji he will be charged and the judiciary will not act impartially. It asked what he would be charged with. The applicant indicated he would be charged because of his involvement in anti-government activities. He claimed that people he knows who have been involved in anti-government activities have been charged and are still in custody.
The Tribunal noted that the applicant has claimed that if he returns to Fiji he will not be able to secure employment and he will be blackballed. It asked why he thinks this will happen. He referred to the issues in 2007. The Tribunal noted that on his own evidence the applicant continued to work until 2013. He indicated that that was because he was self-employed.
The Tribunal noted that the applicant’s brother has employment in Fiji. It explained it may form the view that he will be able to secure some employment as he has skills. He confirmed that his brother is a [Occupation 1] and that he is a qualified [Occupation 4]. He acknowledged that he may be able to him secure employment in Fiji but he fears returning. He believes his life will be very difficult and he is likely to be unemployed.
The Tribunal noted that the applicant had provided a statutory declaration. He indicated that his migration agent prepared it for him. It noted that it included country information about various human rights concerns in Fiji. It noted for example that there was country information about the prosecution of 15 Fijians on charges of sedition. It asked the applicant to explain why the information provided is relevant to his case. The applicant indicated that there is injustice in Fiji and no human rights. People are harassed and tortured. Information available outside Fiji has been edited to make it look like there are no human rights violations.
The Tribunal asked the applicant if he had any other evidence he wished it to take into account. The applicant told the Tribunal he has been in Australia a long time and the separation from his family is hard. He wants to be reunited with his children.
The Tribunal then took evidence from second named applicant. It asked her what she wished for the Tribunal to take into account about her claims to have been harmed. She indicated that she was harmed in March 2007. She was in the Methodist ladies choir while Qarase was in office. There was an investigation about who was in the choir and some of the women were taken to camp but on different days. She saw other females at the camp but she understood they were there for different reasons. However, when asked about this, she did not know why they were there. They took her to the camp because she was in the choir. The Tribunal discussed the country information about the Methodist Church with her. She indicated she still fearful because of what happened.
The Tribunal asked the second named applicant about the timing of the applicants’ name change. She indicated the family changed their name to [the applicant’s family name] in 2010.
The Tribunal asked the second named applicant if she had any other evidence to give. She indicated that, as a mother, she is really hurting because of the family separation. She has had children pass away. She has not seen her children who are currently living in Fiji for a long time and she wishes to be reunited with them. However she fears returning to Fiji.
The Tribunal noted that the second named applicant indicated that the applicants changed their name in 2010. It invited the applicant, pursuant to s.424AA, to comment on or respond to the information. It explained why the information is relevant and the consequences if relied on. It also explained to the applicant that he could seek more time to respond. The applicant responded immediately and stated that the inconsistency was probably because his wife did not remember the date of the name change. He indicated that when he went to [Country 2] he had already changed his name.
The Tribunal took evidence from the third named applicant. He referred to an incident in 2007 which he witnessed when he was only [age]. He saw his father being manhandled and thrown in a vehicle. It happened while they were at home.
The Tribunal asked the applicant if he had any other evidence to give. He acknowledged that he and his wife’s answers had been inconsistent but indicated that they were both telling the truth. He repeated that his wife did not attend her parent’s funeral in Fiji because of fear. He also noted that she has [an] injury due to a work-related injury. He wants to be reunited with his children in Fiji. He indicated that if nothing had happened to them they would return.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
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.
Nationality
The applicant presented to the Department his passport issued by the Republic of the Fiji Islands. The Tribunal finds that the applicant is a citizen of Fiji. The other applicants have also provided copies of their Fijian passports when making their visa applications. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to reside in any country. The Tribunal will assess his claims accordingly for the purposes of his claim to be a refugee, and as the receiving country for the purposes of the complementary protection provisions in s.36(2)(aa).
Does the applicant meet the refugee criterion in s.36(2)(a)?
The Tribunal has considered the applicant’s claims and evidence. For the following reasons is not satisfied the applicant meets the refugee criterion in s.36(2)(a) of the Act.
Name change
The applicant claims to have changed his name to avoid any connection with his military past and enable his departure from Fiji. For the following reasons the Tribunal does not accept the applicant, or any of the secondary applicants, have changed their name. First, in the visa applications, the applicant answered “N/A” in response to the question as to whether he had been known by other names. Secondly the Tribunal notes the applicant claimed in his visa application that his name is well-known to the Fijian regime as he [worked in Occupation 3] in Fiji. Thirdly, he did not mention in his written claims that he had changed his name. Fourthly the applicant did not mention the name change to the delegate. His explanation for this was that the delegate did not ask him. However the Tribunal is of the view the delegate had no reason to ask, given the applicant had indicated in his visa application he was not known by any other name. Fifthly the applicant’s evidence regarding the timing of the name change is inconsistent. He first told the previously constituted Tribunal he changed his name in 2007. However he subsequently stated he changed it in 2004, in this Tribunal’s view, to overcome problems with his evidence that arose from stating he changed his name in 2007, that is, that he provided a document indicating the name was changed in 2004.
The Tribunal notes the applicant stated at his first hearing that he changed his name in 2007 and then apply for a passport “straightaway”. The documentary evidence he provided in relation to the name changed raised further concerns as the two documents have different dates and different reasons for the name change. The Tribunal also notes the Registrar General, Fiji recorded that errors due to error of fact or error of substance can be corrected provided supporting evidence is given. The Tribunal is of the view the reference to a correction of error does not support the claim that the applicant changed his name. It also notes the applicant has not provided documentary evidence of a name change by deed poll. It is of the view that even if his former migration agent had the documentation and refused to release it because he had not paid his fees in 2016, he has had sufficient time to address this issue. It notes the second named applicant’s evidence is that the applicants changed their name in 2010, which is inconsistent with the applicant’s evidence and casts doubt the claim that the applicant changed his name before he obtained his passport in 2007. It is not satisfied this inconsistency has been adequately explained. The Tribunal also notes the applicants provided documentary evidence with their visa application, a marriage certificate and birth certificates issued in 1996 which refer to the current name, [the applicant’s family name]. The applicant indicated he obtained those documents after he changed his name however the Tribunal notes at least one of those documents, his marriage certificate, was issued in 1996. It also notes his own birth certificate indicates his father’s family name was [the same as the applicant’s].
The Tribunal is not satisfied the documents provided stating [Alias 1] was released from the Republic of Fiji Military Forces at his own request [in] 1998 overcome the problematic nature of the applicant’s evidence about the name change. It notes the applicant did not mention being in the military in his visa application. He described his occupation as Businessman [Occupation 3] and [Occupation 4] and stated he had been employed by [Company 1] and as the Director of [Company 2]. The Tribunal has taken into account his claim that he did not mention it because he feared being banned from entering Australia. However it does not accept this explanation as he was already in Australia. It also has doubts about the reliability of the applicant’s documentary evidence about the name correction given the different dates and details.
The Tribunal notes the applicant in his visa application claimed to be well-known by the military. However he is essentially claiming that the military were unaware that he had changed his name in 2004 and he was able to lawfully depart Fiji using a passport with a different name on at least five occasions, over the period 2009 to 2013 without coming to the attention of the authorities, despite having a profile in Fiji. The Tribunal is not satisfied that this would have been possible.
The Tribunal does not accept the applicant changed his name in 2004 or 2007 or at any other time. It is not satisfied the applicant was able to leave Fiji several times without coming to the adverse attention of the authorities because he was using a different name. The Tribunal is of the view the applicant has manufactured the claim to have changed his name in response to the issue raised in the delegate’s decision record that the applicant’s ability to depart Fiji in 2011 and 2013 indicates he was not of concern to the Fijian military, and that it cast doubt on his claim that he experienced difficulties with the Fijian military due to his political opinion. It finds the applicant has manufactured the claim.
Claims to have been harmed in Fiji
The applicant has provided to the Tribunal copy of the delegate’s decision record. It records that in his oral evidence the applicant claimed that in the second week of November 2011 his wife was locked in a prison cell and he was stripped naked and made to run around the ground. He could not remember the precise date in November 2011 but thought it was in the second week. He also told the delegate that he had difficulties with the authorities and was taken to a military camp in 2007. The delegate asked the applicant why he had not mentioned the two occasions in his visa application. The applicant responded that he “just put down the latest one”. The Tribunal also notes the applicant did not repeat in his written statement to the Tribunal made in November 2020 the claim that he was taken to the military camp in 2011. He only refers to having been taken to the camp in March and July/August 2007. The Tribunal is on the view this omission cast significant doubt on the claim. It also notes he told the previously constituted Tribunal that he was taken to the camp twice in 2007 and did not repeat the claim to have been taken in 2011.
The Tribunal notes that when it asked the applicant when about difficulties he had in Fiji he indicated he had problems in 2007, 2011, 2012 and 2013. The Tribunal notes that this is inconsistent with his statement to the delegate that in his written application he “just put down the latest one” as his written application does not refer to any difficulties in 2013. It also notes that the applicant indicated to the delegate that he experienced difficulties with Fiji and military due to political discussions he held with [clients of his business]. However the applicant made new claims to the Tribunal about having run a business engaging ex-military personnel for work in [Country 1], a business which he claimed to operate for two years from 2005, and that this led to his adverse profile with the military. It is of the view that, if it was the case that he had run the business of this nature, he would have mentioned this in his written visa application and his failure to do this cast significant doubt on the claim.
100. The Tribunal notes the applicant has also claimed that he was taken to the camp because he was [office bearer] of the SDL [Branch 1]. However for reasons given below the Tribunal is not satisfied the applicant was a branch [office bearer] of the SDL.
101. The Tribunal has taken into account the oral evidence of the third named applicant who claims that when he was [age] he witnessed his father being manhandled and thrown in a vehicle. It happened while they were at home. The Tribunal accepts that he may have a recollection of his father being manhandled and thrown in a vehicle. However it is not satisfied this evidence overcomes the anomalies in the applicant’s own evidence on this issue, or the applicant’s decision to voluntarily return to Fiji from [Country 2] and Australia, as discussed in more detail below.
Protection application in [Country 2]
102. The Tribunal also notes the applicant’s evidence regarding a protection visa application in [Country 2] is inconsistent. In his protection visa application, in response to the question as to whether he had applied to any other country for protection, he indicated he had not. He told the previously constituted Tribunal that he was told by [Country 2]’s immigration department that he was not allowed to apply and would have to go back to Fiji. However he told this Tribunal that he did make a protection visa application in [Country 2] in 2009 but it was not approved. The Tribunal raised its concern about the inconsistency in his evidence but it has formed the view he has not provided a satisfactory explanation regarding these inconsistencies. It is of the view the applicant’s inconsistencies on this issue raised concerns about the reliability of his evidence. It is not satisfied the applicant did make a protection visa application in [Country 2]. It finds he has manufactured this claim.
Voluntarily returning to Fiji from [Country 2] and Australia
103. The Tribunal also notes the applicant visited Australia twice and voluntarily returned to Fiji before travelling to Australia in September 2013 and finally making his protection visa application in January 2014. It is of the view his willingness to return to Fiji in September 2011 and January 2013 cast significant doubt on his claims to be fearful of returning to Fiji. It is of the view this casts significant doubt on his claim to have been harmed by the military in November 2011 and it does not accept he would have returned to Fiji in September 2011 and January 2013 if he had suffered the harm he has described. It has taken into account his various explanations; that he wanted to wait until his family could come to Australia with him. However it is of the view that if he was genuinely fearful of persecution he would not have returned to Fiji, three times from [Country 2] and twice from Australia. It has also taken into account his claim that he did not make a protection visa application in Australia at an earlier date because did not know how to. However it finds this claim unreliable given he had several family members in Australia, connection with PISAI and the anecdotal evidence that the Fijian community is very familiar with the protection program.
104. The Tribunal has considered the applicant’s evidence that he did not apply for protection earlier in Australia because friends told him he had to go back to Fiji to do this. There is no rationale for this advice. The Tribunal is of the view the applicant has manufactured this claim.
[Office bearer] of the SDL [Branch 1]
105. After making his visa application the applicant claimed during the interview with the delegate that he was [office bearer] of the SDL [Branch 1]. The Tribunal has considered the evidence regarding this claim, which was not included in written application. It finds his evidence about timing and duration of the purported [political office] to be inconsistent. When asked by the previously constituted Tribunal why he did not include this claim is written application, he indicated he forgot. He told this Tribunal that his lawyer must have left it out. Yet he has claimed that it is one of the reasons why he was of interest to the authorities and why they took him to military camp. The Tribunal is of the view that, if that was the case, the applicant would not have left it out of his original claims. It is not satisfied he has adequately explained the failure to include it in his written claim and the inconsistencies in his evidence about his purported [political office]. The Tribunal is of the view he manufactured this claim.
The second named applicant’s claimed to have been taken to the military camp
106. While the second named applicant completed Part D of the protection visa application, indicating she did not have claims of her own but rather was applying as a member of the applicant’s family unit, it has been claimed that she was harmed in Fiji when she was taken to a military camp in 2007 where she was subjected to inhuman treatment and assaulted. The Tribunal notes the second named applicant did not attend the first hearing. However she did attend the hearing on 18 November 2020.
107. It has been submitted that because she was an SDL supporter, actively opposed to the regime and a staunch member of the church the second named applicant was arrested, detained and assaulted by the military in 2007. She did not expand on these claims at the hearing except to say that she was harmed at the time she was in the Methodist Church ladies choir while Qarase was in office. She indicated that other ladies were taken to the camp on the same day but for different reasons although she was not sure why they were there. The Tribunal did not find her oral evidence on this issue particularly persuasive. Having regard to DFAT’s Country Report- Fiji September 2017 the Tribunal accepts that historically the Methodist Church had been closely linked to the SDL. Under the interim government’s reforms directed at the de-radicalisation of the political system the Church was pressured to distance itself from politics. In 2009 and 2010 the church was not permitted to hold its annual conference but the ban was lifted in December 2010. The military regime held a negative attitude towards Methodist Church, particularly outspoken senior members who had political agendas however in July 2010, it was unlikely lower-level members of the Church were being subjected to harm although they could be subject to monitoring.[2]
[2] Country Advice, Fiji – FJI37288, Refugee Review Tribunal, 20 September 2010
108. The Tribunal is not satisfied that the applicant has demonstrated the second named applicant had been of interest to the authorities. It is not satisfied she was outspoken or held any senior position, or was a leader. It accepts that as an ordinary member of the church she may have been monitored but it is not satisfied she had a profile such that she would have been considered a senior member of the church with a political agenda. It is not satisfied she will be harmed in the future, even if she is a member of the Methodist Church and participates in activities such as membership of the ladies choir.
The applicant’s association with PISAI and claims he will not receive a fair trial
109. The Tribunal notes Ms Kirwin attended the applicant hearing January 2016. Accordingly the Tribunal is satisfied the applicant became involved in the organisation prior to that hearing. However, on the evidence before, it is not satisfied the applicant did anything more than attend four meetings. The Tribunal notes his own evidence is that the main focus of PISAI is to help Fijians get protection in Australia. It notes his evidence he became involved only weeks before his hearing in January 2016. There is no evidence to indicate he is currently involved in PISAI or has been since his hearing in January 2016. The Tribunal has taken into account his assertions in his statutory declaration to this Tribunal in November 2020 that he joined not just to further his own interests in claiming protection, but also because he believed in the cause. However it is not satisfied the applicant does believe in the cause. It notes at his first hearing when asked about the purpose of the organisation he stated the main focus was “to help us. They’re here to help us get what we are trying to achieve, that is our protection here in Australia. They are mainly here to help us”. He referred to it as “Ms Kirwin’s organisation”, not by its name. Having considered the evidence before it, the Tribunal has concluded that the applicant joined PISAI, and attended four PISAI meetings, solely for the purpose of strengthening his claims to be a refugee. Accordingly it disregards this conduct pursuant to s.91R(3) of the Act.
110. While it has disregarded the applicant’s conduct for the purposes of s.36(2)(a) it has considered the evidence provided about the prosecution of secessionists in Fiji. It is not satisfied the applicant will have a profile as a secessionist. Accordingly, with respect to his claim that he will not be given a fair trial, the Tribunal does not accept the applicant will be charged with being a secessionist. It is not satisfied there is any other reason for the applicant to be charged and prosecuted. It does not accept the applicant will not be afforded a fair trial in Fiji.
General claims to fear harm in Fiji
111. The Tribunal has considered the country information provided by the applicant regarding human rights abuses in Fiji and the Buturaki or torture culture which persists within the military and police. Having regard to the information it accepts there are human rights abuses in Fiji. It notes DFAT reports that high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.[3]
[3] DAFT Country Information Report Fiji 27 September 2017, page 16
112. With respect to opposition political opinion, DFAT reports:
Overall, DFAT assesses that senior members of opposition political parties (those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.[4]
[4] Ibid, page 18
113. The Tribunal is not satisfied that the applicant is a high-profile public figure, an organisation leader, or a senior member of an opposition political party. It is not satisfied he has any profile in Fiji such that he will come to the adverse attention of the authorities and suffer human rights abuses. It does not accept there is a real chance he will be harmed by the authorities even taking into account the country information about Buturaki culture. It is not satisfied that he genuinely fears abuse in Fiji because of political opinion, or religion, or business association, or for any other reason.
The applicant’s credibility
114. The Tribunal is of the view there are significant concerns with the applicant’s evidence. It finds his voluntary return to Fiji on several occasions, from [Country 2] and Australia, casts significant doubt on his claims to have been harmed in the ways described in his evidence, and to have a profile in Fiji. It finds his delay in making a protection visa application until January 2014 has not been adequately explained. It is also not satisfied the applicant has demonstrated that he changed his name because he had an adverse profile, and this allowed him to depart Fiji at least five times without coming to the attention of the authorities or military. It finds his evidence regarding harm he suffered in Fiji to be inconsistent and unreliable. It also has serious doubt that the applicant established the business arrangement for former military officers to work in [Country 1] which it notes was not listed on his visa application as former employment.
115. Overall the Tribunal has formed the view the applicant is not a credible witness. It also has serious doubt that the second named applicant’s evidence is reliable, given her evidence about the name change in 2010, which is inconsistent with the applicant’s evidence.
116. Having found that the applicant’s evidence is not reliable in relation to significant issues the Tribunal is not satisfied it can rely on any of his claims. It is not satisfied the applicant came to the adverse attention of the authorities because as a [Occupation 3] he was a vocal and active supporter of the SDL party and an opponent of the regime or of the Prime Minister, the President or anyone else in Fiji. It does not accept that he and his wife were active opponents of the military regime or outspoken criticis of it. Nor does it accept that he and his wife were taken to a military camp, harmed and subjected to inhumane treatment. It does not accept that he was politically active including as a member of the Methodist Church. Nor is it satisfied he was the [office bearer] of the SDL [Branch 1]. It does not accept his former business involvement resulted in him being of adverse interest to the military. It has formed the view the applicant joined and participated in PISAI in Australia solely for the purpose of strengthening his claim to be a refugee. It finds the delay in making his protection visa application casts significant doubt on his claims to fear harm in Fiji. Nor does it accept he fears he will be blackballed in Fiji and unable to secure some form of employment because of his past businesses, political views, religion or for any other reason.
Conclusion on the applicant’s refugee claims
117. The Tribunal does not accept that the applicant genuinely fears he will be harmed by the military, the police or anyone else if he returns to Fiji, owing to his political opinion, his religion or his former business involvement. Nor does it accept the claims that his wife genuinely fears harm in Fiji for those reasons, or because of her involvement in the Methodist Church. It has taken into account the evidence that she did not return to Fiji after her parents passed away but it is of the view this does not overcome the other significant concerns arising from the applicant’s evidence.
118. The Tribunal is not satisfied the applicant will be engaged politically if he returns to Fiji or that his involvement in the Methodist Church would lead to him being harmed in any way. It does not accept there is a real chance the applicant will face serious harm, or harm of any kind, due to past political activity, religion or former business or employment, if he returns to Fiji in the foreseeable future. It is not satisfied he will be involved in any political, religious or business activity that will draw the adverse attention of the authorities. On the evidence before it, the Tribunal does not accept there is a real chance the applicant will suffer serious harm by the Fijian authorities or its military or anyone else if he returns to Fiji now or in the reasonably foreseeable future.
119. Nor does the Tribunal accept there is a real chance the second named applicant will face serious harm, or harm of any kind, due to her political opinion or involvement in the Methodist Church or business, if she returns to Fiji now or in the reasonably foreseeable future.
120. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Does the applicant meet the complementary protection provisions?
121. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered whether he meets the complementary protection criterion in s.36(2)(aa). This criterion is met if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
122. The Tribunal is not satisfied the applicant has suffered harm in the past, or that he will suffer it in the future, because of his political opinion, religion or business involvements. It accepts he has been a [Occupation 3] and [Occupation 4] in the past as claimed in his visa application. It also accepts he has secured employment as a [Occupation 5] as a FIFO worker for the mines in Australia. However it is not persuaded he has previously run a business contracting ex-military personnel to work in [Country 1] and so it is not satisfied he will be a person of interest to the authorities or military because of that claim.
123. The Tribunal has considered whether there is a real risk the applicant will suffer significant harm because he has previously been involved with PISAI in Australia. It notes the country information indicates PISAI does not have a reported presence in Fiji but is based in Australia. It notes Fijian applicants for protection visas have raised association with the organisation as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Ms Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody. Overall, DFAT assesses that individuals associated with PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.”[5] The Tribunal is not satisfied the applicant, or his wife, will participate in any Christian separatist activities, or have a profile as secessionists, if either return to Fiji now, or in the reasonably foreseeable future.
[5] DFAT Country Information Report on Fiji, 27 September 2017, pages 19-20.
124. The applicant has indicated that he fears he will not be able to secure employment if he returns to Fiji and he will be ‘blackballed’. The Tribunal is not satisfied the applicant has a profile such that he would be ‘blackballed’. It notes he has experience as a [Occupation 4] and [Occupation 3] and that he has secured employment in Australia as a [Occupation 5] for a mine, indicating he has skills and experience. The Tribunal also notes his evidence that he has family in Fiji including a brother who works as a [Occupation 1]. Accordingly the Tribunal is satisfied the applicant will be able to secure some form of employment and/or family support such that he will be able to subsist in Fiji.
125. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the above findings, the Tribunal is 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. The Tribunal is not satisfied that there is a real risk that he will suffer significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.
126. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
127. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
128. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.
129. As the applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not hold a Protection visa, the second, third and fourth named applicants are unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the second, third and fourth named applicants do not satisfy the criterion in s.36(2) of the Act.
DECISION
130. The Tribunal affirms the decision not to grant the applicants Protection visas.
Denise Connolly
Member
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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