1822260 (Refugee)

[2023] AATA 2515

1822260 (Refugee) [2023] AATA 2515 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822260

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Rodger Shanahan

DATE:30 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 May 2023 at 4:00pm

CATCHWORDS
REFUGEE – protection visa – Fiji – mental health – fear of harm from authorities – government agency’s plans to build structure on applicant’s family’s land – indigenous rights – mental health – credibility – plans announced after application for protection made – no supporting evidence provided – no mental health treatment sought – work record while on bridging visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 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 24 April 2018.

3. The applicant appeared before the Tribunal on 18 May 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

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.

   Claims and evidence

   Protection Visa Application

10. The applicant made the following claims:

11. I left Fiji because I needed to get out of the country as I needed a break. My family decided to send me overseas because they saw my condition was going from bad to worse. I was quick to anger and becoming very aggressive, so a break and a holiday was what my family thought was a solution to my change of behaviour. I was affected by the human right suppression that the government had in place for Fijians.

12. If I return to Fiji I would continue to face and suffer the psychological stress that I had been through. I was depressed and mentally stressed because freedom of expression was restricted. I could not criticise the government and what it is doing to the indigenous people. I could not even discuss what I did not like about the government. This has psychologically depressed me and made me aggressive and angry too quickly and too often…If I go back to Fiji things would be worse off and can result in me getting mental illness.

13. As soon as I return to Fiji the psychological and mental stress and depression will continue. As my right as an indigenous person is deprived I will continue to suffer as an individual. I have  a family and my family is suffering as a consequence. I cannot express myself because there is no freedom of expression in Fiji. I do not want to suffer again and make my family suffer when I am depressed.

    AAT Hearing

14. The applicant was asked what serious harm he feared if he were to return to Fiji, he said he was from a smaller island and he believed the police and army would take him to court or put him in jail. They would do this because they wanted to build a jetty on his land and he didn’t want this to happen.

15. Asked if he had mentioned this previously, he said that he had mentioned it in his application. It was put to him that there was no mention of the jetty and he stated that he had mentioned ‘indigenous rights’. He was asked if he had previously mentioned that the police or army were going to arrest him over a jetty. He said that he couldn’t recall why he didn’t do this as he thought ‘indigenous rights’ would cover it.

16. He was asked why he made such a specific claim here today that was different to what he wrote in his protection claim (he agreed that he wrote it) and he said that he didn’t know why. It was put to him that he had claimed that he also suffered from psychological depression in Fiji – asked if he had had any medical treatment for this since he had been in Australia or Fiji. He said that he hadn’t.

17. Asked why he said that he suffered from this condition he said that he couldn’t afford it. Asked if he had access to Medicare he said that he did. He said he didn’t have money in Fiji. Asked why he hadn’t seen a doctor in Australia, he said that he didn’t feel bad in Australia. Asked why he said that suffered from depression, he said he had a lot of stress in Fiji and then agreed that he just wrote it down. He agreed that he was fine to attend the hearing and had no diagnosed mental health conditions.

18. He said that the previous government took a lot of their rights. Asked how it impacted on him, he said that this was his forefathers’ land and they wanted to build a jetty. He was the eldest in the family and he had to sign the agreement. Asked, he said that he had no copy of the agreement. Asked if he had anybody send him a copy over the last five years since he had been in Australia, he said that he hadn’t. He said he didn’t want to know anything about it. It was put to him that he was trying to convince the Australian government that he was at risk of serious harm, so it was strange that he hadn’t done anything to try to provide documents such as the alleged agreement he claimed that he was being forced to sign.

19. Asked when he was given the document he said it was around December 2018 – he came to Australia in April 2018 and applied for protection in May 2018. It was put to him that the agreement came after he applied for protection. He was asked why he didn’t mention this previously when he was asked why he didn’t mention the agreement. He said he understood but gave no answer.

20. His siblings called to tell him about the agreement. He believed that the Environment Agency gave it to them – he thought it was a development thing but had no idea. They wanted the land to build a jetty and a ship came to offload supplies and it normally docked offshore but they wanted to build a jetty. It was put to him that this sounded reasonable. He said that they never followed the procedures. He agreed that this was the previous government and when asked about the current government he said that they hadn’t signed anything. They had only been in for a few months but nobody had come to them yet.

21. Asked if the police had done anything to the siblings he said that they hadn’t as he was the one who had to sign the papers as he was the oldest. Asked who owned the land he said it was family land – asked to confirm that they held it freehold, he said that it wasn’t freehold but it was family land. In Fiji the clan owned the land and as the oldest he had the authority to say yes or no.

22. Asked if he delegated the authority once he came to Australia, he said that he hadn’t. Asked how this could work given he had been in Australia for five years and nothing could be done in his absence if he was the only one who could sign things. He was asked who was looking after the clan given he was in Australia – he said he never appointed anyone. It was put to him that this seemed strange as nobody could then make a decision – he said he would delegate in the village but he was in the town and there weren’t really clans in the town.

23. Asked if he had any other claims he said that he didn’t. It was put to him that this alleged incident occurred in December 2018 yet he applied for protection in April 2018. He was asked why he applied for protection eight months before the event allegedly occurred as it didn’t make sense. He was asked why he only had one claim and yet he applied for protection eight months before the event occurred. The Tribunal was concerned that he wasn’t telling the truth. He then said there were rumours that they were going to take their land before this. It was put to him that he hadn’t previously mentioned these rumours in his application – he merely said that he came overseas as he needed a break. This didn’t appear to be the profile of a clan leader and the Tribunal was concerned that he wasn’t a clan leader.

24. He was working in Australia for [specified work sector] with [Employer 1]. He applied for protection and then got given his work rights and bridging visa. The Tribunal was concerned that he had perhaps just come to Australia in order to work and applied for protection so he could gain work rights. He said he was being truthful. It was put to him that he had provided no evidence, his claim was different from his written application and the alleged event that prompted him to apply for protection occurred after he applied for protection. It was put to him that the Tribunal was concerned that he had never criticised the government regarding indigenous rights.

25. He claimed that when he was in Fiji the government had begun telling him that they would have to build a jetty on his land. It was put to him that he had previously said these were rumours and now he was saying that the government was telling him. He then clarified it and said they were rumours. Asked if he had ever criticised the Fijian government as he had claimed in his application that there was no freedom of speech and if there was evidence, he said there was no evidence. Asked if these was evidence of criticising the government since he had been in Australia, he said that he went to a march in 2019 but had no evidence. He had no social media evidence that he criticised the government. Asked why there was a problem with the new government, he said that he had a problem with the past government, not the present one.

26. Asked why there was a problem now, he said there was no problem with the current government. Asked why his protection visa was still valid, he said that he enjoyed life in Australia and there was harm to him from the present government. Asked why he was applying for protection, he said this was the only visa that he knew to apply for. It was put to him that he did not appear to have been truthful to the Tribunal during the hearing. He said that he did not have anything further to say.

    CONSIDERATION OF Claims and evidence

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

28. The applicant is a [age] year-old male. He claimed that if he returned to Fiji he could be arrested and/or taken to court by the police or the army because the government wanted to build a jetty on his land.

29. 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.

30. 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.

    Medical Issues

31. In his written claim the applicant claimed to have suffered from psychological depression in Fiji. I do not accept this to be the case. He had never seen a doctor there or since being in Australia so there is no medical evidence to support his claim. I do not accept that his failure to consult a doctor was because he had no money in Fiji. He has been in Australia for five years and has had access to Medicare and still has not seen a doctor and has been working during that time. 

    Building a Jetty

32. I do not accept that the Fijian government tried to build a jetty on the applicant’s traditional land, that he refused to sign the relevant documents and that he would be arrested or jailed as a result. To begin with, he never mentioned this in his written protection visa application even though it was his sole claim. I do not accept that he believed that it was covered in his claim that he was deprived of his indigenous rights. That claim was itself vague and the Tribunal does not accept that a reasonable person would have believed that his specific jetty claim was, in fact, really his broad indigenous rights claim.  

33. The timing of the events is also inconsistent with his claim. He stated at hearing that the government wishing to build a jetty (and which is the basis of his protection claim) was an issue that began in December 2018, yet he applied for protection April 2018 some eight months prior to the alleged event. I do not accept that there were rumours earlier than December 2018 – he only raised this claim when the inconsistency with the dates was pointed out.

34. He could provide no copy of the document that he was allegedly expected to sign, and has had five years to produce it from his relatives (who he says were given it in Fiji). I also note that there has been a change of government in Fiji and that he has not heard whether the alleged issue is being pursued by the current government.

    Criticism of Government

35. I do not accept that the applicant has or is likely to publicly criticise the Fijian government, or that he has ever been stopped from doing so or that he has been denied freedom of expression. He had no evidence that he had ever criticised the former government while he was in Fiji, nor in the five years he has been in Australia. I do not accept that the applicant joined a protest in Australia in 2019. There was no corroboration for this claim and it relies entirely on his credibility as a witness, which I have found to be lacking. I also note that he stated that he had no problem with the present government so I am not satisfied that there is a real chance that he will seek to criticise the sitting government in the reasonably foreseeable future.

    Other Issues

36. I do not accept that the applicant has or will be denied his indigenous rights. He was very vague regarding this claim, and the only specific element of it that he articulated was the alleged plan to build a jetty on land owned by the applicant’s family. I have not accepted that such a plan was in existence as he claimed – this leaves no other instances where he has claimed that his indigenous rights have been deprived.

37. 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

38. Because I do not accept that the Fijian government ever sought to build a jetty on his family land, that he has or would ever publicly criticise the Fijian government, or that he has ever been deprived of his indigenous rights, 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.

39. 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

40. 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).

41. 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).

42. 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

43. 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.

    …