1821737 (Refugee)

[2023] AATA 1810

1821737 (Refugee) [2023] AATA 1810 (7 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1821737

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Rodger Shanahan

DATE:7 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 07 June 2023 at 9:22am

CATCHWORDS
REFUGEE – protection visa – Fiji – fear of harm from military – beaten after making anti-government comment in conversation – credibility – inconsistent claims and evidence – voluntary return – change of government – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa on 3 April 2018.

3. The applicant appeared before the Tribunal on 18 May 2023 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

10. Claims and evidence

    Protection Visa Application

11. I left my country because of some abuse received from some military men who took power into their own hands. It started as a conversation between me and a stranger just passing the road. I offered him a drink which he warmly appreciated. A normal conversation with him was interfered by a military man across the road. Our conversation was a matter of government status that was totally taking the country to a different direction. Not for the people but away from the people.

12. The military interference warned us which I responded in my own right as a freedom of speech/comment. Turns out he reported me to the people above. I was taken to somewhere at night on [date]/10/2016 and was abused with physically (punched in the face and body). I respond to defend myself but couldn’t because there were three of them. I attempted to report the matter but was threatened not to. Every week this military man would stop by to check on me.

13. As I happen to report the matter to the police, the three military men found out and I was advised by my parents to leave the country to save my life. They are still looking for me. I think if I return I will be tortured or worse killed. There was nothing filed in the report because the police did not advise me of the status of my report.

14. I received a bruise to my body right to my left underneath my armpit or my top left rib. Injury to my right wrist hit by a piece of timber. I went to stay with a priest in church but it turned out that they knew where I was.

    AAT Hearing

15. He claimed that if he returned to Fiji his life would be in danger. Asked who would kill him he claimed that the military would. Asked to be more specific, he said that it was a guy – a non-law abiding military soldier who had threatened him. Asked if the military or this person was going to harm him, he said he thought it would be both. Asked to be more specific, he said it was a person working in the military.

16. He would kill him because of something he said before about how the military was running people’s lives. He first had this fear since he returned to Fiji in 2018. He heard rumours that they were going to find him. Asked again to be more specific, he said he heard a rumour that they would take him, drive him to a place and beat him up. This would be done by the person who was in the military. He heard the rumour from his family. He confirmed that he heard it when he went back – asked if he could be more specific, he said that it was in 2018 around October (he later said it was at the end of 2017). He confirmed that prior to this he had his fear of serious harm around October 2017. Asked if he went to Fiji after this, he said he left Fiji in 2018 and hadn’t returned. 

17. Asked why he was being targeted, he said that he had spread a rumour about them beating up people. Asked what he meant by ‘spreading a rumour’, he said that he was telling youth to stand up for what they believe in and should stand up for a democratic country. Asked who specifically he was talking to and the circumstances, he said he spoke to his friends in Fiji in 2017 (March-July) and saying how dangerous the government was and they would hurt people. There was no freedom and the government was using the military to beat up people for not supporting it.

18. He based this on his belief that the country should have free speech for all people. Asked what occurred, he said he came to Australia and got taken to one of their bases. Asked to clarify, he said that before he came to Australia he was taken to one of their bases and he was harmed badly. He couldn’t walk because of the beating and his leg and head were injured. Asked if he had any medical reports that would support this, he said that he didn’t.   

19. He came to Australia and when he went back to Fiji he was staying in different places as he was afraid he would be taken and beaten up again. This military person had a group of round 10 people in uniform – it was just like in a movie.

20. Asked how long it took him to recover from not walking, he said that he was beaten and he fell down on the hard stone and hurt his knee. He came to Australia and returned to Fiji but didn’t stay at home. Asked why he didn’t apply for protection in 2017 in Australia after he’d been beaten up, he said he didn’t know and wasn’t educated enough. He was asked what he did to find out such as approaching other Fijians or a migration agent or the like he said he wasn’t educated. He said he found out how to do this from a friend who came and stayed with them in [Town].

21. Asked if there was a migration agent in [Town], he said he had no idea and didn’t look for one. It was put to him that it was hard to believe that he would be detained and beaten by a group of Fijian soldiers then come to Australia and return to Fiji. Asked why he returned, he said his visa required him to return. He was asked why he didn’t go to the police or a church group to ask for help and he said the member was right.

22. In Fiji he stayed in a friend’s house. Asked if he said this in his application, he said that he didn’t remember. He was asked if he had any other injuries besides his knee and head he said he didn’t.

23. Asked why he feared the government now that it had changed, he said that hopefully things would change. The government had changed this year. Asked if he reported his beating to the police, he said they never take things seriously. Asked about reporting it now given the change of government, he said he would have to try. 

24. It was put to him that in his statement he claimed that he was talking to a stranger and offered him a drink and was interrupted by a military man yet he said today that he was talking to a range of friends about the issue. These scenarios were different. He said that to him they were the same thing.

25. It was also put to him that his statement said that he was taken at night on 10 October 2016 yet here he said it was in 2017. He said that it should be 2016. Asked if he returned to Fiji after he was beaten up, he said that he did. He went back on three occasions. It was put to him that it was four times. He was asked why he would return four times even though he claimed he would be seriously harmed if he did so. This made it hard to believe his claim. He could not provide a response.

26. Asked if he had previously been refused a visa to Australia, he initially said he hadn’t, then that he didn’t know and that he hadn’t. It was put to him that today he claimed to have been injured in his head and he couldn’t walk because of his knee. This was different to the injuries he described in his statement which could call into question the truthfulness of his claim. He said the injuries had faded away and he just had a scar on his head.

27. He had also claimed in his statement that he had said he stayed in a priest’s house but never mentioned staying with friends. He said he stayed with a priest and then would stay with friends going around.

28. He was told about s 424AA and it was put to him that he had a tourist visa refused in February 2016 because it was believed that he would seek to stay in Australia. The Tribunal was concerned that he had attempted to come to Australia just to work and was refused a visa. He then applied for a protection visa just before his tourist visa ran out. The Tribunal was concerned that he had fabricated a story and that nothing had occurred to him in Fiji because he was here top work and was safe to return which he had one on several occasions already. He said he came to Australia to better himself and what happened to him in Fiji was real.

    CONSIDERATION OF Claims and evidence

29. The applicant first arrived in Australia in April 2017 on a tourist visa and applied for protection in April 2018. I have seen a copy of his passport and I am satisfied that he is a Fijian national.

30. The applicant is a [Age] year-old male. He claimed that if he returned to Fiji he could be killed by a person in the army because he had told people how bad the government was and that they were beating people.

31. 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.

32. 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.

    Mistreatment by Member(s) of the Military

33. I do not accept that the applicant ever spread rumours that were opposed to the government or that he accused the military of beating up people. To begin with he was inconsistent in his description of the circumstances in which he claimed that he made such claims and how they were overheard.

34. In his written statement he said that he was expressing such an opinion to a stranger who he met on the street and that this conversation was overheard by a military person. At hearing however, he claimed that he had been making such claims to the youth and to his friends in Fiji in 2017. I do not accept that these two accounts were the same thing as the applicant claimed as they are patently different.

35. There are other aspects of the account that show significant inconsistencies. The most important is the timing of the alleged incident where he was taken away and beaten by the military. At hearing he said it was around October 2017 – he was asked to confirm that this was the date and he did. This is inconsistent with his written claim where he stated that he was taken away and assaulted [in] October 2016. He then agreed that it was 2016.

36. Yet if he had been abducted and then assaulted in October 2016, it makes no sense that he would then have returned willingly to Fiji on at least four occasions subsequent to this despite claiming that he would suffer serious harm if he were to return. And also that he failed to seek protection on the occasions when he returned to Australia the same number of times.

37. I do not accept that he failed to seek protection because he was not educated enough or didn’t know about it. He made no effort to seek any information from any Fijian friend, a church group, or migration agent about what his options were once he was in Australia. One does not need to be educated to know that they need to seek advice about avoiding serious harm in their home country, and therefore the Tribunal is satisfied that his failure to apply for protection in Australia and his willingness to return to Fiji on multiple occasions was because he had never been beaten up by a military person in Fiji and he had never publicly criticised the government.

38. He has also given differing accounts of the injuries he suffered. In his written statement he suffered bruising to his top left rib and his wrist, while in his hearing he claimed that he received an injury to his knee that did not allow him to walk for a week and an injury to his head. I do not accept that this inconsistency could be explained because the injuries had just ‘faded away’.

39. As I have noted, his willingness to return to Fiji on several occasions despite claiming to fear persecution from Fijian military personnel fatally undermines his claim to fear serious harm in Fiji. I do not accept that he was able to do so because he stayed at different friends’ houses. This was never mentioned in his protection visa application. Indeed, in his application he only claimed that he stayed at a priest’s house but the Fijian military personnel knew where he was. I do not accept that he then stayed at friends’ places given it was never mentioned in his statement and he only offered this explanation in response to the Tribunal’s concerns that he had only mentioned staying at a priest’s house.

40. 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

41. I do not accept that the applicant ever criticised the Fijian government or military and was overheard by Fijian military personnel, that he was ever detained and beaten by Fijian military personnel or that he ahs had to hide from them while in Fiji. 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.

42. 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

43. 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).

44. 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).

45. 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

46. 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.

    …