1827883 (Refugee)

1827883 (Refugee) [2023] AATA 3616 (11 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Sashimendra SINGH (MARN: 9903675)
CASE NUMBER:  1827883
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rodger Shanahan
DATE:11 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 August 2023 at 9:55am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – involvement with SODELPO in Australia – membership of SODELPO – active on expressing anti-government sentiment on social media – poll results manipulation – adverse political opinion – credibility concerns – fabricated his claim in order to be granted a protection visa – willingness to provide false documents to achieve an advantageous migration outcome – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 423, 424AA
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 27 August 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 24 April 2018.
The applicant appeared before the Tribunal on 13 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review.
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 applicant made the following claims in his written statement (hereafter referred to as Statement 1):
a.I left Fiji because I feared for my life. As it has been threatened several times. My life will still be in harmful danger if I return to Fiji. Not necessarily from the government but from the people who don’t want to lose their work form the current government;
b.Since Fiji is a small country and [Employer 1] conduct survey through out Fiji it is unlikely to seek safety to other parts of Fiji. There is a high risk of being harmed and mistreated if I return to Fiji from the supporters of any political party who wants to know more about how [Employer 1] manipulate the result of the poll; and
c.(The authorities could/would not protect me because) Since I lodge a complaint to the Fiji Police Force. I still continually receiving threatening calls and text messages. After being spotted several times by people I fear for my life. Fiji is a very small country. Even if I relocate to any parts of Fiji I could be easily spotted by other supporters of different political parties.
Two Subsequent Statutory Declarations
Two statutory declarations were also offered. The first was prior to the hearing and consisted of a 36 page submission whose contents won’t be replicated here but will be referred to when and where appropriate (Statement 2). The second was in response to written questions posed to the applicant prior to the hearing and will also be referred to when appropriate (Statement 3).
AAT Hearing
The applicant was advised that it had received a 36 page statutory declaration as part of his protection visa application, as well as another declaration in response to questions he had been asked prior to the hearing. Asked why his declaration was declared in Queensland, he said he was studying there but lived in Sydney. Asked when his father was born, he said he wasn’t sure but he was [age] years old (his mother raised him). He said that his mother was currently [age] years old.
The applicant claimed that if he returned to Fiji, he could be harmed or killed because he had run away from the Fijian military because they wanted him to alter the research data he had collected for [Employer 1]. They would force him to do things they had done to him previously. He was told that he would need to be more specific in what he was claiming. He said this was correct and that this was his only claim. It was put to him that in his second statutory declaration he appeared to have made a new claim about supporting SODELPO, a political party.
Asked if this was a new claim, he said that he was a member of the party but he wasn’t making a claim because of it. He was asked why he included it in his statutory declaration, and he said that he was told to make a statement regarding his political affiliation but he didn’t want to advance a claim based on it. Asked about the special media post he included, he said that this related to his claim against the military. He clarified this and then said that he would be targeted by the Fijian military because of his involvement with SODELPO in Australia.
He was worried that because he had been interviewed in Australia as a member of SODELPO this would get into the ears of the military in Fiji. He was asked why the military would target him, and he then said what he had put on social media would be tracked and he would be in trouble for this. the Fiji First government would get him in trouble for this. Asked again what serious harm he feared in Fiji because of the posts and he claimed that the military could physically assault him.
In June 2017 he claimed that about 11 in the evening after he finished work he was in [City 1] walking to the bus stop when soldiers stopped behind him. Some of them jumped out of the van and forced him inside. He was taken to the barracks and told he would be interrogated. They stripped him and locked him up in a cell. After an hour two soldiers came to the cell and he was made to run around the camp – he was told not to provide all details of his alleged assault.
He was interrogated and released around 0600. Asked what questions they asked, he said the officer wanted to know what job he did in [Employer 1] and who would be the best PM. He was told to change the result of the polling so the result favoured Bainamerama and Fiji First. He was told they would send a soldier from the camp to sit with him and would ensure the applicant changed the polling result to favour Fiji First.
They then let him go and he got a bus from the main road. He took a Panadol and rang his father. Asked if he told [Employer 1], he said he told nobody until he resigned. It was put to him that the company surely should have known, particularly if the military was going to try to infiltrate a soldier into the company. He claimed the military told him not to say anything or he would be punished. It was put to him that [Employer 1] was an Australian company and he could have told them to tell head office who could have arranged for him to come to Australia and therefore preclude him from having to carry out the job the military gave him. This was an outrageous act from the military and the Australian company would have wanted to protect him and could have gone to the Australian media and exposed the plot.
He said he didn’t think about coming to Australia – he only thought about the threats they made to him. It was put to him that he said his mother brought him up so it was strange he rang his dad. He said that he occasionally spoke to his father. He was in [an] island group. It was put to him that he had previously said that he couldn’t contact his father because there was no internet in the village. Yet he had also said that his father lives in [Town 1], which was a town of [population]. On 4 July he said he lived in [Town 1], yet on 12 July he claimed that he lived in a village without internet. He said that [Town 1] was an area as well as a town.
Three weeks after the incident [Employer 1] recruited three new people, one of whom the applicant could tell was a soldier. Asked if the applicant told [Employer 1] that they had just recruited a soldier who was spying on them, he claimed that he had no proof but could tell by looking at him he was a soldier. He then said he didn’t know but then the person showed him his military ID.
The applicant was asked why the person would show him his ID and he said that the person told him he was sent to ensure they changed the polling data. Asked what the applicant’s job at [Employer 1] was, he said that he was a [occupation] and he had a [qualification]. He also translated from Fijian (and conducted telephone interviews) to English which was what the data was entered in. The soldier was there to ensure the applicant did what he was told to do.
Asked if anybody mentioned to the applicant on Monday morning the injuries he had received during his torture. He said that when he returned home after being in the military camp, he rested and used hot water fermentation to deal with the swelling. On Monday there were no marks. It was put to him that after swelling there was normally significant bruising and this would have been quite obvious. He said that using the hot water on Saturday and Sunday dealt with the injuries and on Monday it had pretty well all gone. The member said that this was hard to believe given the injuries he had described. The applicant noted that he understood what the Tribunal said and that while this may be hard to believe but that was what was done in Fiji – it was lukewarm not hot water.
Back at work, he asked his supervisor if he could be taken away from political polling and put on [another task]. He was moved until July at which point he was taken back to the military camp on a Friday about 10 pm. He was hit and made to do degrading tasks (these were contained in his statutory declaration and weren’t examined at hearing) and questioned. They wanted to know why he had been transferred within [Employer 1] and he realised the soldier working at [Employer 1] had told them.
He was told to go back and get transferred back to the Fiji politics research desk. This was agreed that he would then commence t the start of the next research project on Fiji at [Employer 1]. He was assaulted while he was at the camp and asked about the injuries he received, he stated that he was punched by a couple of soldiers. He went back to the office but remained fearful until he was taken by the military in early January 2018.
When he was there they threatened to shoot him because he still hadn’t changed the data entry to favour Fiji First. Asked again when they took him the third time he said it was the first week of January 2018. Asked if it was February as he had said this in his statutory declaration he said that it could be. He was taken to the barracks and then interviewed by Bainemarama’s bodyguard. He left the camp about 10 or 11 pm. He went to work the following day.
He was fearful and he didn’t want to get anyone else involved and didn’t want to tell anyone at work. The soldier was still working at [Employer 1] but he still didn’t tell anyone at work about this as he didn’t know what to do. His father advised him to leave the country and go to somewhere like Australia and seek protection. He was asked and agreed his purpose for coming here ws to seek protection.
He used a travel agent to get a visitor’s visa. Asked the name of the agent he said he couldn’t remember. He agreed the agent was in [City 1] and they filled out his visitor’s visa application. Asked what documents he gave them in support of his visa application, he said they wanted a letter from a sponsor here and why he wanted to come. He provided these to the agency. He didn’t provide anything from his employer. When he arrived in Australia he asked the company for a separation letter.
Asked who his sponsor was, he said it was [name]. Asked if he was a friend of the applicant, he said that this person was a friend of his friend in Fiji. When he intended to come to Australia he gave his travel agent the letter from the sponsor. Asked what the letter said, he said he couldn’t remember. He was told the Tribunal would return to this issue.
He told the regional manager of [Employer 1] prior to leaving about what had occurred to him. He was asked if this person had relayed this news to the Australian HQ given their data may have been compromised, there was a spy inside and one of their data inputers had been detained three times – he said that he told the manager. It was put to him this was a massive scandal and the manager would have told the company so the absence of any media coverage of this major diplomatic incident was strange.
It was also strange that the applicant hadn’t reported this to the media through a church group which could have given him some protection. Further, [Employer 1] was based in Queensland and they would have been very keen to know about what had happened to one of their employees and to their company and could have asked the government to assist the applicant. Yet he had not done this, nor had he approached them and provided a statutory declaration from them prior to the hearing as requested by the Tribunal. The Tribunal was concerned that the reason none of this had occurred was because the incidents as described by him had never occurred and the claim had been fabricated.
He claimed that when he decided to leave Fiji he didn’t have time to tell anyone when he left Fiji and he didn’t want anyone to know the reason why he was leaving as he was still afraid of the military. He was told about s 424AA and it was put to him that the Tribunal had a copy of the applicant’s tourist visa application and there was no evidence of it having been filled out by a travel agency – no mention in the application was made regarding the involvement of a travel agent and it had been signed by the applicant. The contact email was for him and the sponsor’s letter said the applicant was staying with them [and] an employment letter from [Employer 1] saying he had been employed as a [occupation] as well as a letter from the [Church 1] saying he would return after three months as he would serve as a church volunteer worker.
The concern was that he had given the Australian government documents that he knew to be false and that he had not intended to return so the letter from the [Church 1] indicated that he would return which he claimed he wasn’t intending to. The work letter did not mention his claimed role as a [occupation]. These could all go to issues of his credibility and his other claim regarding being targeted by the Fijian military could also have been fabricated.
He said that he didn’t know the sponsors before he came – a friend gave them the names of his sponsors. It was put to him that the letter said they knew him which meant regardless of where it came from he knew that it contained false statements. He said that he was just looking to get away from Fiji and come to Australia. He admitted that he didn’t know his sponsors and that he falsified the documents. He was willing to do anything to get away.
It was put to him that the best way to ensure he did not return to Fiji was to ensure that his claim was publicised and hence to go to [Employer 1] and explain to them that he had arrived in Australia and had been harmed in Fiji because he worked for them. Yet he had never approached the company and the Tribunal’s concern was because his story wasn’t true and the regional manager would not support the claim. He said that he still had family in Fiji and was afraid for them so didn’t want to advertise what happened to him.
His father was in Fiji and, after the applicant’s social media interview his father was taken away. It was put to him that he could have asked [Employer 1] not to publicise it but to support him in his claim in Australia. He claimed that even if he went to [Employer 1] he couldn’t know what information would get out in Fiji. Asked if anything had happened to his mother and sister in Fiji he said nothing had occurred.
Asked why he waited for two and a half months to apply for protection in Australia given he claimed to have come here to seek protection. His father had advised him to come to Australia for protection, he spoke English and had provided false documents in order to come here so his delay seemed inconsistent with his claimed purpose for coming here. He said that he still had the fear of the Fijian military when he came here – he still had those memories of what the military did to him.
Asked if he had seen any psychologist/psychiatrist or if he had any other medical evidence that he had sought help for these intrusive thoughts about his torture that he claimed to have had that stopped him from acting to gain protection. He said he kept it to himself and didn’t want to tell anyone. He still had the fear though.

It was put to him that on his protection visa application, Question 78 asked whether he had experienced harm in Fiji and he had ticked no. He only claimed that he received threatening calls and reported it to the police. There was no mention of ever being taken by the military, or having been assaulted, or that there was a spy placed in [Employer 1]. His subsequent claim was completely different and he was told about s 423 of the Act and why the Tribunal may draw an adverse inference from the late claim regarding his targeting by the Fijian military.
He said that he was told by members of the Fijian community when he filled out his application that he would be brought into a hearing and he could tell his story then. It was put to him that the question was quite clear when he answered it and the only evidence that someone in the community told him this was his oral evidence. He was asked if he had experienced harm and said ‘no’ – it made no sense that he would not indicate that he had been if what he had later claimed was true.
He said that when he lodged the application he hadn’t sought the help of a migration agent. He just wanted to fill out the form and then explain at the interview. It was put to him that answering ‘no’ didn’t make sense – he didn’t need a lawyer or community members to tell him that he was harmed or not. He could have indicated that he had been harmed and then expanded later. He said that perhaps his mind wasn’t functioning properly when he filled out the form.
It was also put to him that the Tribunal found it hard to understand how his father had been in the CRW, dishonourably discharged and then re-enlisted into the Fijian military. He said that he didn’t really follow the case and didn’t really know what happened.
He was again advised about s 424AA and it was put to him that it didn’t appear to political at all – there was family material and some religious material. Him making posts about Fiji First after his application had been rejected and prior to the hearing was suspicious and was not indicative of someone with a real political conviction but more an effort to provide some evidence that he was political when he actually wasn’t.
He said that much of his material was part of the SODELPO Australia branch site rather than on his own website. He was asked to show the Tribunal where his comments were on the SODELPO site. He was also advised that the Tribunal had concerns about the legitimacy of the letter he had provided from the Fiji police – it could have been produced on any home computer. It wasn’t addressed to anyone specifically and that he had been threatened for his role in [Employer 1] where he was a casual employee and it was strange that he had been targeted or how the person was able to get his particular number.
He said that it was from the military and his father was still in the military and they used him and tried to influence his father to get the applicant to change his ways. They would use any means. Asked about the social media posts he said there was a post from the Fiji First website on 19 April 2023. He was asked why he began doing this in the current year. It was put to him that his comment didn’t go back to his page. He said it was a screenshot and was asked if it still existed. He said most had been removed. He was asked how the Tribunal knew that he didn’t post it then immediately delete it. He said that the comment had been removed from Fiji First by them because it was an insensitive comment.
Asked why he commented on 19 April 2023 when he had been here for five years and hadn’t commented previously. He said he had kept a low profile because Fiji First was still in power and he only began this year after they were voted out. He said in his statement that he had been active on social media, particularly on Fiji First’s page – he was asked when he had become active on social media and he said that when he came to Australia he began to contribute from 2019.
He was told the Tribunal was confused. Fiji First was out of government since December 2022. He then said that he had previously said he had been very active on the Fiji First party yet he had only commented from April 2023. He said that from 2018 he followed the site but never contributed and only began contributing from late last year (2022). It was put to him that there would be a lot of people opposed to Fiji First given they were voted out, and he was asked why it would be an issue if one person (him) had made three random anti-Fiji First comments.
He claimed that a lot of people use fake accounts and not their real accounts. It was put to him that a lot of people use their own accounts. His own [social media] account didn’t appear to be political. The applicant had no profile as an influencer so it was strange that he would think Fiji First or their allies would be interested in what he wrote. He claimed that he couldn’t put everything that he wanted to on [social media] because what the military had done to him meant that he self-censored.
What worries about him all the time is what the military did to his father because of the interview he gave and what they might do to his mother and sister if he did anything else. Asked what they did to his father, he claimed that at the start of 2020 they forced him to resign. He was asked what he meant, and he said that Fijian intelligence spoke to his father after they listened to the interview he gave. The person he gave the interview to was famous on social mkedia for his anti-government stance and the government keeps tabs on this.
Asked why he was interviewed, he said that he protested against Bainimarama when he visited Canberra in 2019. Asked why he gave his name to the interviewer – he had claimed that he self-censored his social media for fear of repercussions for his family in Fiji. It was strange that he would give his name if he feared repercussions. He said that they approached his father after the interview. He was again asked why he used his name if he was scared, given there was no need for him to use his own name.
The Tribunal had concerns that his father wasn’t forced to resign and could simply have retired, that was if he was actually in the army at the time he gave the interview. He said he regretted now using his own name but was concerned at what they did to his father. It was put to him that he had previously said he self-censored social media because he was afraid of repercussions and this would be taken into account by the Tribunal.
Asked when he joined SODELPO he said that it was in 2018 – it was put to him that there was a letter he provided saying that he joined in February 2020. He said that he became a financial member from them. Asked if he had any evidence prior to this he said that he didn’t. It was put to him that the only evidence of his claim then was the note about him joining 2020. He said he used to live in [Suburb 1] NSW but moved around and was currently studying in Queensland. It was put to him that his home address was [Suburb 2] and he agreed. Asked if he had any evidence of being involved with SODELPO in Queensland or Sydney and he said that he attended meetings in Queensland but was not as active as he was in [Suburb 1]. It was put to him and he agreed that being a member of SODELPO did not form a separate claim and he agreed.
He was asked to provide a copy of the interview he gave and he said that he would. The person interviewed a number of people at the protest and his interview went for a couple of minutes. It was hosted on his social media page. He could not tell how many followers this person had but he thought about 1500. Asked how many protests he attended, he said that the one in Canberra was the only one. It was after his protection visa had been refused. He was told about s 5J(6) and the Tribunal’s concern was that he attended the protest and made sure his name was used in the interview with the sole purpose of establishing a refugee profile. Even if the Fijian authorities knew about it, given his lack of profile they would not be interested in him because of this.
He said that what they had done to him at the military camps had never left him and if they could do this then it didn’t matter what government was in power then he was still at risk. He said that what happened to him came to him in his dreams but he didn’t believe that he needed any professional advice.
His father was a [rank] in the Fijian Training Group which was based in [City 1]. It was put to him that he was a low-ranking soldier and he agreed. Asked how he was able to leave Fiji if he was of such interest to the Fijian military, he said that his father told him that he would check if the applicant was on a black list but told him that he wasn’t yet but had to leave. It was put to him that it seemed unlikely that a low-ranking soldier would have access to such sensitive information and he said that he didn’t know but that everyone in the army knew each other. It was put to him that the army was not that small and everyone didn’t know each other – the Tribunal found it hard to believe that a [low-ranking soldier] in the Fiji Training group would have access to such sensitive information, he said that he didn’t know how he got this information.
He stated that the things were still the same in Fiji even though the government had changed. He was given additional time to provide the transcript of the interview he gave.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on [date] February 2018 on a tourist visa and applied for protection on 24 April 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 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.
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.
Knowingly Providing False Documents
In determining the applicant’s credibility or otherwise, the Tribunal has placed significant weight on his willingness to provide false documents to achieve an advantageous migration outcome – in this case his tourist visa application. As part of his application he provided the following fraudulent documents:
a.A letter from [a named couple] (along with copies of their citizenship certificates) saying they knew the applicant, given [the husband] had been the applicant’s lay preacher from 2001-07 and that he would stay at their house and attend [an event]. The applicant admitted that he didn’t know these people and the latter was a fake; and
b.A letter from the [Church 1] saying that the applicant would be returning after three months to fulfil his role as a church volunteer worker. He indicated that he never intended to return to Fiji once he arrived in Australia.
The applicant also claimed that the visitor visa application was filled out by a travel agent in [City 1]. He was unable to name the travel agency and the applicant states that it was not prepared with the help of anyone else. I am therefore satisfied that the applicant completed the application and knowingly included the documents listed above to improve the chances that he would be issued a visa. He claimed in Statement 3 that he was provided the [name] letter by a friend – regardless, he knew it was fake when he submitted and therefore whether he wrote it or someone else did is immaterial to what its submission means for his credibility.
Employment with [Employer 1]
I accept that the applicant was employed by [Employer 1] as a casual [staff] from [year] until [year] as evidenced by the employment letters from [Employer 1] and the account from the Fijian National Provident Fund he provided.
Attention from Fijian Military
I do not accept that the applicant was ever targeted by the Fijian military in an effort to change the data inputted into the [Employer 1] polling database so it favoured Fiji First, was detained by them, assaulted or tortured by them and told that a person from the military would be inserted into [Employer 1] as an employee in order to ensure the applicant was manipulating the data as directed.
To begin with, this relies entirely on the applicant’s oral testimony which lacks credibility. Next, the applicant not only failed to mention any of this in his protection visa application (Statement 1) in which he also indicated that he had not experienced serious harm while he was in Fiji. I do not accept that he did this because he took advice from members of the Fijian community that he would have a hearing and could explain what happened then. He actually ticked the box saying that he hadn’t experienced serious harm – if he was going to explain later it is reasonable to believe that could have just ticked the box indicating that he had, and then explained in the space given that he would provide further details later.
There are other issues that make the Tribunal disbelieve the claim. The applicant was a casual [staff] so would have little control over the outcome of the polling given he was just one casual [staff] doing shift work. There is nothing to indicate that he alone had the ability to shift the official results of [Employer 1] polling, nor why he had been singled out by the Fijian military as the person they sought to target given his low position in the company.
Regarding the actual assault, despite claiming that when he returned home on Saturday morning after having been beaten and noting that he had a swollen face and pain from where he was beaten (Statement 2, para 60), he appeared at work on Monday morning with no visible marks, swelling or bruising. I don’t accept that he was able to achieve this simply by applying a hot water treatment to his face over the weekend.
The idea that he did not inform his work when this allegedly occurred, particularly as he could have prevented the attempted intrusion of a military ‘spy’ trying to be recruited into the company (and therefore relieve himself of the distress of having someone reporting on him to the Fijian military), lacks credibility. It also lacks credibility that, if he had told the regional manager at the time that he was discharged, that the manager did not immediately report this to the company’s headquarters in Australia. The type of actions taken by the Fijian military against [Employer 1] were so abhorrent that it is completely implausible that a regional manager would not have told the company in Australia. Particularly so when he noted in his Statement 2 that his employed ([Employer 1]) realised that ‘…their entire operation was being compromised because of the military’s insistence on trying to disrupt the survey’ (para 142).
The applicant was given the opportunity to provide a statutory declaration from a senior [Employer 1] official in Australia attesting to the harassment of one of their employees and the opportunity for them to appear as a witness on his behalf at the hearing. He responded (Statement 3) that as a casual employee he had no contact with the company HQ, did not know what the regional manager told them and that he couldn’t provide any statutory declaration from them or have someone from the company appear as a witness. If the claim regarding the Fijian military targeting the company were true, the Tribunal is satisfied that an official would not have hesitated to support the claims of an employee who had been targeted in the manner in which he claimed.
The Tribunal also notes that the applicant did not apply for protection in Australia for more than two months after arriving, despite claiming that he was told to come here with the express purpose of seeking protection (see Statement 2 para 104). I do not accept that he failed to do so because he still carried the fear of what the Fijian military had done to him – he provided no corroborating evidence such as medical reports that could have given weight to such a claim. As a result it relies entirely on his oral evidence, the credibility of which is lacking.
Political Activism in Australia
The applicant claims that he is a member of SODELPO in Australia, took part in an interview where he was critical of the government and his father was forced to resign as a result, and he has been active on expressing anti-government sentiment on social media.
I accept that the applicant has joined SODELPO in [Suburb 1] in February 2020 however I do not accept that this indicates that he has been active in advancing their cause as he was unable to provide any evidence that he was active in Brisbane (where he studies) or Sydney (where he lives).
I do not accept that he will be targeted by the Fijian military because of his activities with SODELPO in Australia. To begin with he was inconsistent regarding this claim, initially saying that he didn’t fear serious harm because of his activities in Australia and then saying he did. I do not accept that he would be targeted by the Fijian military because of his activities with SODELPO in Australia. To begin with, those activities are minimal and he doesn’t appear to have a profile as a consequence of any activities nor is he publicly associated with the group via social media or the like. And, given SODELPO is part of the current ruling coalition, it makes no sense that he would be targeted by the Fijian military for any real or perceived support for SODELPO while in Australia.
I also accept that the applicant took part in a demonstration in Canberra during Bainimarama’s visit or that his presence (if known) at the protest is of interest to the Fijian authorities. The only evidence he provided were some photocopies of photos that appear to be from an iPhone equivalent. The writing on the placard he was holding was indistinct and there is nothing to identify him in the photo. I do not accept that he attended protests in Sydney as he claimed in Statement 2 (para 149), given this was inconsistent with his claim at hearing when asked whether he attended protests other than the one in Canberra and he replied in the negative.
I accept that he took part in an interview in 2019 that was published on a person’s social media page however I do not accept that it was listened to by the Fijian military and that his father was punished as a result. This aspect relies entirely on his oral evidence which I have found lacks credibility.
It is possible that he could have been identified as a result of the interview if sufficient effort and resources had been put into the search. He introduced himself as [name] and later that he worked at [Employer 1]. His willingness to use his name and workplace is inconsistent with a subsequent claim regarding his lack of anti-government social media presence was because he self-censored himself out of fear for the repercussions that could be felt by his family back in Fiji. I am therefore satisfied that his willingness to voluntarily use information that could be used to identify him by the Fijian authorities was because he was unafraid of being identified because what he was saying was of little import and he was of no interest to Fijian authorities.
The applicant’s interview centred on his objection to the government reducing the retirement age from 60 to 55 and the impact that this would have on people. At one point he claimed that he could not renew his work contract because of the retirement age change. Although he did state that he was speaking out because of the lack of freedom pf speech in Fiji, the focus of the interview was his disagreement with the retirement age policy in Fiji. Regardless, given the government has now changed and the applicant’s supported party is part of the governing coalition, the applicant’s 2019 comments would be of no interest to either party.

I do not accept that he has been politically active on [social media] especially on Fiji First’s page (Statement 3 para 19). There is nothing on the applicant’s own [social media] page that indicates political affiliations, let alone activism. He claimed that much of the material was on the SODELPO Australia branch site however he never provided any evidence of this and therefore the Tribunal does not consider that any such evidence exists.
I do not accept that he has criticised the Fiji First party ‘time and time again’ on their [social media] page (Statement 3 para 19). I accept that he has posted three derogatory comments on their page from December 2022 but that these had been removed because of their content and now no longer existed. What he had provided to the Tribunal were screenshots taken previously. I note that he never posted on the site prior to the negative protection visa decision being received.
The Tribunal also questions why someone would take screenshots of their posts in the first place, and is concerned that he has done this for the sole reason of trying to establish a refugee profile. Regardless, the fact that they were removed means that there is no longer a record of what he wrote and, given the limited number of responses he would not have a profile as a consequence. I also note that Fiji First is no longer the government following its defeat at the December 2022 elections.
Other Issues
Because I do not accept that the applicant is or was of any interest to the Fijian military it follows that he was never on a travel black list nor would he be on return, that his father was asked when the applicant was due to return or what documents he took with him or who he had been seeing in Australia or whether he had been on any media (Statement 2 para 187). I also do not accept the claim he made that Fiji is ready to explode and that a military coup may take at any place (Statement 2 para 182). He has not provided any evidence in support of this claim nor is the Tribunal aware of any that would support such a claim.
I also do not accept that he had been threatened several times, that he would be harmed by people who didn’t want to lose their work from the current government, from supporters of any political party who want to know more about how [Employer 1] manipulate the result of the poll, or that he had continually received threatening calls and texts.
These were made in his initial protection visa application and not pressed during his subsequent statements or at hearing. He offered no evidence such as examples of the texts or calls or of any other political parties interested in [Employer 1] manipulation – indeed it is inconsistent with his subsequent claims that only the Fijian military/Fiji First were interested in his company’s polling. I have taken into account what he claims is a letter from [a] Police Station in Fiji saying the applicant had lodged a report saying he had received threatening calls and messages regarding the work of [Employer 1], however I lend it no weight. It could have been produced on any home computer and the applicant has already admitted a willingness to provide false documents to Australian authorities to secure a positive migration outcome.
The applicant was given until 20 July 2023 to provide additional information however none was forthcoming. On 10 August the Tribunal received a copy of a statutory declaration and a copy of a document from the applicant purportedly showing that his father had been jailed for two years without charge over the coup. He also asked for additional time to provide additional documentation to support his claim about his father’s military service and incarceration.
Although he never requested an extension of time to provide information, I will take into account the document he provided on 10 August. I do not however lend it any weight – it is not an original document, the applicant has already indicated his willingness to provide false documentation in order to achieve a positive migration outcome (his original tourist visa) and the document, although purportedly coming from the Directorate of Legal Services has a significant number of spelling and grammatical errors in it. The applicant also asked for more time to provide other documentation – the Tribunal has not allowed this given he has already had years to provide evidence in support of his claim, and the Tribunal has no confidence in the probity of many of the documents that he has provided to the Australian authorities as is.
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 there is not a real chance that the applicant will face serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
I do not accept that the applicant was ever of interest to the Fijian military because of his polling work for [Employer 1], that he was detained, tortured or required to manipulate polling data, that he has an anti-government profile because of his membership of SODELPO, attendance at a protest in Australia, social media interview or [social media] comments. Because of this, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant 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 applicant being removed from Australia to Fiji, that there is a real risk that the applicant 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 3616

11 August 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice