1816941 (Refugee)

1816941 (Refugee) [2023] AATA 2404 (15 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1816941
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rodger Shanahan
DATE:15 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 June 2023 at 1:21pm
CATCHWORDS
REFUGEE – Protection visa – Fiji – indigenous businessman – had been victimised by the allocation of tenders – conflicting evidence– delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – credibility concerns – fabricated his claim in order to be granted a protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 22 February 2018.
The applicant appeared before the Tribunal on 7 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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.
Claims and evidence
Protection visa application
The following claims were made in the applicant’s protection visa application:
Why did the applicant leave Fiji ?
a.I was harassed and threatened by Police My business have been victimized by the allocation of Government Tenders I have been awfully discriminated by the current regime as an indigenous Businessman
Give details including who harmed you, what type of harm you experienced and why ?
a.Psychological Harm, Economical, Physical, Police Officers, Regime, Seeking the Truth from the Distribution of Government Building Tenders, Abusive verbally, and psychological harm when questions, and arrested by Police Officers.
Who did you ask for help and what help did they provide ?
a.Seek an appointment with the Ministry of Works regarding the Tender Distribution. Seeking an audience with the Director Human Rights Office for the Discrimination that was done to me and my unlawful arrest and question. I was both denied any access.
What will occur to you if you return to Fiji ?
a.They will physically and mentally harm and abuse me. Also psychologically they will harm me. And worse of all economically that will drag down the hole.
AAT Hearing
The applicant said that he knew everything that was in his protection visa and that it was true and correct. He claimed that if he returned to Fiji he would be killed by the people who did things to him. Asked to be more specific, he said that these people were still in the military and the police. He would be targeted because he had previously been tortured by them. Asked if he had reported this to anyone he said that he hadn’t as he had been told not to by the police and the army. This had occurred in 2014 and 2016. This was his only claim.
In 2014 he was working in his village and the military under Bainimarama was in power. Some military (four soldiers) came to the island. They had their own laws in the village and the soldiers came and imposed their law on the village. Asked what he meant, he said they stopped them drinking home-brew. It was put to him that Fijian law didn’t prevent people from drinking home-brew – he agreed this was the case.
If people were caught drinking home-brew they were put under arrest. He was detained and taken with others to the jetty, put in a small boat and taken out to the water, dropped in it and told to swim back to shore. It was shark-infested waters. The second day they were taken before the soldiers and put in line. The soldiers then kicked them in the back and stomped on their bellies. Nothing else occurred in 2014 but he was in fear of his life. They were told not to talk about what occurred.
Because of the fear he had from this incident he was looking for ways to leave Fiji. In 2016 he was in his house and was looking after the youth who gathered at his house. A few of them were smoking marijuana and they were reported to the police and he became involved in the investigation. He was accused of encouraging them to smoke marijuana. They had no evidence but he was still detained and questioned and badly physically assaulted.
He spent that night in the cell and was released the following morning. Because of these two incidents he was in fear of his life and knew he had to leave. In 2017 he was able to come to Australia and he told himself he would never go back to Fiji. He had relatives in Australia – a cousin. He had been working since he arrived in Australia as a labourer but was now working as a [occupation].
He agreed he left Fiji in 2017 in fear of his life. Asked if he applied for protection when he arrived, he said that he applied just after his tourist visa expired. He said he didn’t know what to do so didn’t apply earlier. It was put to him that he could have asked his cousin to take him to a migration agent or the immigration department so he didn’t have to return to Fiji given the danger he claimed to fear. Yet he had waited for more than three months before he applied. He said he was advised not to apply for protection but then later he did.
He was asked what he did to find out what his options were. He said that he sought advice and was asked whether he sought advice from a migration agent or the Immigration Department and he said that he hadn’t. He was asked if he had mentioned any of these run-ins with the army or the police in his protection visa application, he said that he didn’t put all the information there. Asked why not, he said that someone assisted him to fill out the form. It was put to him that he had previously been asked whether he knew everything in his application and that it was true and correct and he had said that he knew and it was.
He hadn’t shared this information about the marijuana and being taken out to sea because he wanted to keep this to himself. He said he was speaking the truth now. It was put to him that this was why the Tribunal asked this question so that people didn’t later claim that someone else provided the information as a way of explaining inconsistencies.
Asked if he had sought any medical help in Australia for the trauma he alleged to have suffered, he said that he hadn’t because he didn’t want to. Asked again if he knew what was in his protection visa application, he said he had written about the torture and harassment. He was also not successful as a self-employed builder because of this business. He said that he started a business building houses but it didn’t go well because of what occurred to him.
Asked what he meant by this given businesses fail because they were badly managed on occasion, he said that he meant that he suffered a lot of trauma and this put him back in doing his business. Asked again what he meant by this, he said that it affected him mentally and this set him back in running his business. It was again put to him that he had not provided any evidence of any mental health issues and he agreed.
It was put to him that in his protection visa application he claimed that he had been victimised by the allocation of tenders and that he had sought a meeting with the Ministry of Public Works. He hadn’t mentioned either of these but simply said that he had managed it badly. He said that he was heading towards mentioning this.
Asked how he had been discriminated as an indigenous businessman, he said that he lived in [a city] but had work on the islands. In 2017 he had secured a job with a [contract]. He should have finished the job in nine months but some of the people involved in his case in the island they tried to stop him from doing something. He was told this didn’t make any sense. He said the soldiers belonged to the government and what they say, goes.
The government was mainly ruled by the military and they were some of the people who tortured him. They knew if he had sought a loan they would then stop him from getting it. He said he was applying for the contract and they stopped him. He was asked and said he had no evidence of this.
It was put to him that the government had now changed so why would there be a problem for him. He said he liked living in Australia. He was asked why he thought the current government would do anything to him and he said that he didn’t know. Asked again why he thought that he would face serious harm from the current government, he said that he didn’t have anything to say about this question.
It was put to him that the Tribunal found it hard to accept the truthfulness of his claim. What he had said today was different to what he wrote in his protection claim, and he had delayed for three months before he applied for protection despite having relatives in Australia who could have assisted him. He said he could not explain any further.
CONSIDERATION OF Claims and evidence
The applicant first arrived in Australia on [date] November 2017 on a visitor visa and applied for protection on 22 February 2018. I have seen a copy of his passport and I am satisfied that he is a Fijian national.
The applicant is a [age] year-old male. He claimed that if he returned to Fiji he would be killed by members of the military and police who had previously tortured him. He had no other claims.
In considering an applicant’s account, undue weight should not be placed on some omission or confusion to conclude that a person is not telling the truth. Nor can significant embellishments or inconsistencies be lightly dismissed. The Tribunal is not required to uncritically accept any or all of the claims made by an applicant.
I found the applicant’s claims to be vague and to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claim in order to be granted a protection visa.
Torture Claims
I do not accept that the applicant was ever stopped from drinking home-brew, taken out by boat to shark-infested waters by soldiers and told to swim back to shore, that he was lined up and kicked and had his stomach stomped on by soldiers, or that he was detained and beaten by the police and accused of helping youth smoke marijuana in his house.
There was no reference to any of these incidents in his written protection visa application and, given their seriousness it is entirely reasonable that they should have been. I do not accept that their absence is because someone else had filled out the form. He was asked at the start of the hearing and agreed that he knew everything that was in his application and that it was true and correct.
In addition, although he claimed that he was in fear of his life because of these two incidents and sought to come to Australia never to return to Fiji, he did not apply for a protection visa for over three months. This is not the action of someone who came to Australia in fear of their life. I do not accept that he took advice which was the reason for the delay. He was vague regarding this advice and, given he had relatives here he could easily have sought their assistance to approach a migration agent or the Australian government about what he could do to avoid having to return to Fiji if indeed he feared for his life.
I also note that, despite claiming to have experienced a range of traumatic events in Fiji, there is no evidence that he has approached a doctor or been treated for any trauma-related medical conditions.
Economic Issues
I also do not accept that the applicant has been discriminated against because he was an indigenous businessman, that he was stopped from getting a loan or securing any government tenders/contracts. His claims in this regard were inconsistent. During the hearing he claimed that his business in Fiji did not do well because of the mental impact of the trauma that he had suffered. The Tribunal has not accepted that the events he described ever occurred and he has provided no medical evidence that he had suffered any psychological issues because of the alleged trauma.
Although he claimed that he had been stopped from bidding for government contracts/tenders or applying for a bank loan, he could provide no evidence in support of such a claim. I do not accept that he was ever stopped from either. The Tribunal also notes that initially he did not claim at hearing that he had been denied government tenders/contracts. I do not accept that he was ‘heading towards mentioning this’. There was no indication that he had more to say on the issue at hearing, and his claim to have been building towards it relies entirely on his oral evidence, which I have found lacks credibility.
Other Issues
Since the applicant made his claim that the military and government were together and to blame for the actions taken against him, a new government has been elected. He could not say why he thought the current government would target him he didn’t know. When pressed on the issue he said that he had no more to add. Given I have not accepted that the applicant never experienced the issues he claimed under the previous government, it follows that they will not be carried on by a new government.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
I do not accept that the applicant has been subject to ill-treatment by the Fijian army or detained and assaulted by the Fijian police, that he has been denied any government tenders/contracts or business loans due to pressure from the government. Because of this, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, that there is a real risk that the applicants will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2404

15 June 2023

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