1904354 (Refugee)

[2022] AATA 4199

1904354 (Refugee) [2022] AATA 4199 (18 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Gerrit Jansen Van Rensburg (MARN: 1175375)

CASE NUMBER:  1904354

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Jessica Henderson

DATE AND TIME OF

ORAL DECISION AND REASONS:         18 August 2022 at 2:41 pm (WA time)

DATE OF WRITTEN RECORD:                14 November 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 14 November 2022 at 1:05pm

CATCHWORDS
REFUGEE – protection visa – Fiji – member of particular social group and political opinion – sportsman with anti-government opinions – potential elevated profile and media attention – may be taken advantage of as figurehead – relationship with Australian working in sensitive role – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5LA, 36(2)(a)

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2019 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 18 August 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a [Age] year-old man from Fiji, a promising [Sport] player.  He arrived in Australia [in] April 2017 on a [Specified] visa to play [Sport] and submitted an application for a protection visa in a timely fashion on 14 July 2017.

4. A delegate of the Minister refused his application for a protection on 9 February 2019.  The applicant does not appear to have been afforded an interview before that decision was made.  Notwithstanding a generic reference made by the delegate to claims, including those raised at interview, no record of interview has been provided to the Tribunal by the Department.  The material considered by the delegate does not go further than that which was included by the applicant in his written application.

5. The applicant’s current claims for protection can be summarised as follows.  He has some concerns arising because of his political opinion against the current incumbent Fijian Government and he is in an economically vulnerable situation in Fiji, which means that he would be unable to protect himself and his family, if his politics drew the attention of the authorities.

6. The applicant has raised also a more general claim about the economic conditions in Fiji but I have explained to him already my view that those are claims that would apply equally to all of the population and do not arise for a refugee nexus reason, and also that I do not consider that the economic harm in Fiji generally arises to the level of significant harm for the purpose of complimentary protection.  So the claims that I am considering before me are related to the applicant’s political opinion but his economic vulnerability is significant to that.

7. There are a few observations that I will make about things that will not be apparent on the transcript.  First of all, the applicant is far more expressive in his face and his voice than using his choice of words.  He is also more eloquent in writing than he is in person, but he does clearly give the impression of being honest and open.  I think some of his reticence has been because I invited him to try and give me his evidence in English, which was not entirely successful.  He does also strike me as being a somewhat shy person who is having some difficulty giving me his views frankly.

8. It is reasonably clear from the documentary evidence that the applicant has provided to the Tribunal to date that he does follow the media on the political and economic situation in Fiji and that is consistent with his partner’s evidence to the Tribunal today.

9. It is clear to the Tribunal from both the written and the oral evidence that the applicant is frustrated by the economic mismanagement in his country.  Once he understood the need to speak frankly and fearlessly he gave the Tribunal some indication that he had heard first hand reports of assault and intimidation even from his current location in Australia and he clearly found it very difficult to speak about the government’s problem enforcing the rule of law in Fiji.

10. I found his evidence, albeit limited, compelling and I am persuaded that he is politically opposed to the incumbent party and a strong supporter of really any opposition that might displace that party.

11. The applicant has provided three references from prominent people in his life and he has brought his partner and friend to give evidence to the Tribunal.  Collectively they have persuaded the Tribunal that the applicant is a talented [Sport] player who has at least the real potential to play professionally.  Two things of significance flow from that.  The first is that the Tribunal accepts that the applicant’s profile in Fiji is elevated by his skill and his reputation as a [Sport] player in Australia and in Fiji.  I note that the Tribunal has conducted a cursory Internet search of the applicant’s name on today’s date, which demonstrated that the applicant has an Internet presence as an emerging [Sport] player.

12. The second thing that flows from that is that the applicant is particularly vulnerable to oppression in Fiji because if he speaks frankly, which I understand from the evidence given to me today he may well be invited to do by the popular media, then frank speech may end his [Sport] career.

13. The Tribunal accepts the applicant’s evidence that he will be forthright, if he is asked by the media to express his political opinion, and that that opinion will be critical of the incumbent government.  The Tribunal accepts that his profile may make those views of interest to the government.

14. I will make the observation that the applicant looks like a natural figurehead.  He is tall, he is powerfully built, he is handsome, and he has charming features.  I say this not to flatter but because I am persuaded that he is someone who may be taken advantage of as a figurehead against the government given his incumbent views.

15. I have looked at the country information for Fiji, including the DFAT country information report published on 20 May 2022.  There is nothing in it precisely on point about sportspeople or popular leaders of that general nature in Fiji.  But the information about online protestors indicates that the environment in Fiji strongly promotes self-censorship and that publication of anti-government remarks may well lead to questioning, short term arrest, detention, and that the risk is much higher for high profile individuals.

16. When high profile individuals express their views about the government on popular media it can lead to questioning by the police, lengthy court cases, prosecution under the Public Order Act, and that in turn can give rise to unreasonable levels of violence.  There have been concerns expressed by Amnesty International about police engagement with people suspected of being anti-government.

17. The situation does also seem to be deteriorating, so the risk of harm in the future to the applicant is likely to be, if anything, slightly greater than that which is reported in the most recent DFAT report.

18. The Tribunal finds that the applicant is a member of the social group Fijians who are opposed to the government who have an elevated profile as a sportsperson and a likely future increase in that profile as a professional sportsperson.

19. The applicant is also a member of the social group Fijians who are opposed to the government who have an elevated profile as a sportsperson and a likely future increase in that profile as a professional sportsperson and also a person who is in a relationship with an [Australian] who holds a role that could reasonably be described as a sensitive role.  The applicant’s partner has given evidence about her work, which I will not repeat in these reasons, but which has persuaded me that her relationship with the applicant is something that they do not mention because it might draw attention to him in Fiji.

20. The Tribunal’s view is that the applicant is not himself really interested in taking on a strongly political role, meaning that he is not measuring his words carefully.  His views about the government are expressed in an all or nothing sense.  He either does not speak about it or he speaks very frankly and very critically and that is something that puts him at risk, if he is invited to give his views when he is perhaps not expecting to be so invited.

21. The Tribunal finds that the applicant is genuinely afraid of serious harm in the form of violent intervention to silence his criticism of the government, if he returns to Fiji, and in the Tribunal’s view that fear is well-founded.  In the context of the applicant’s sporting ambitions there is a real risk that the level of harm may rise to the level of serious harm.

22. For the purposes of section 5LA of the Act the Tribunal finds that effective measures are not available to the applicant because of his membership of the social groups that I have identified. 

23. On the country information the threat that is posed to the applicant may well be from supporters of the government rather than the government itself but even if that is the case the Tribunal finds that there is a real risk that the government will not protect the applicant against its supporters because prejudice in favour of the latter will outweigh the need to investigate their behaviour and it is likely to interfere with investigation or enforcement proceedings.

24. I am of the view that asking the applicant to suppress his opinion of the incumbent government and its economic policy is not a reasonable modification of behaviour for him to make for the purpose of section 5J(3), particularly in the context of his view being actively sought by the media in the event that his [Sport] profile continues to be elevated and potentially sought by the media at times that he is not expecting to be asked his opinion.  With the best will in the world he may express a frank view before he has had a chance to really consider the potential of it.

25. I note also a previous decision of this Tribunal, which is a published decision, in which evidence was given and accepted that sportspeople in Fiji have been penalised even for responding to the media with the words “No comment”. 

26. The Tribunal has no information to suggest that the applicant has a right to enter and reside in any other country and the Tribunal, therefore, finds that the applicant does not have a right to enter and reside in any other country other than Fiji.  Accordingly, section 36(3) of the Act does not apply to him.

27. Referring to the DFAT report of May 2022 with respect to internal relocation, it is to the effect that Fiji is geographically small and is held tightly in kin groups and internal relocation is practically limited.  In any event the Tribunal notes that the applicant is in an economically weak position in Fiji at least for the foreseeable future and has never lived away from his family home in Fiji.  The Tribunal therefore considers that relocation within Fiji would not solve the applicant’s risk of harm.

28. So for these for these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).

    DECISION

29. The Tribunal remits the decision under review with the direction that that the applicant satisfies section 36(2)(a) of the Migration Act.

    Jessica Henderson
    Member