Evidence
Evidence Before The Court
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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Claims The applicant in his visa application referred to his ‘Statement of claims of Protection’ which was titled ‘Personal Statement’ as outlining his claims. This document was received by the Department on 19 September 2018 and in part and as relevant stated that:… I was born in [Town 1 in] Australia when my father came to study back in [specified year]. We were fortunate enough that we weren’t in Fiji when the first military coup occurred in May 1987. Many of my relatives and family friend suffered tremendously from that first two, leaving many unemployed, distraught and an impending struggle over the following years after the coup. As, also well-known, Fiji had undergone another two coup since then, in 2000 and the latest in 2006 taking Fiji back decades in its economy and development.Following the 2006 military takeover, my life and future plans had taken a downturn in life, beginning with my studies where I had to pull out from tertiary studies as I was a recipient of a government scholarship at the time which became dissolved following the takeover including certain government departments that underwent drastic changes to its system. Following my release from university, it took me two years before I could find another opportunity in life as Fiji was facing hard times with international sanctions under an undemocratic government in which the economy was being greatly affected and obvious with little to no opportunities for personal development, especially to the younger generation. Following the 2006 military takeover, I had personal differences against the military government because of the struggles I had to face emanating from that coup and those views I have carried on with me till this day which is a struggle under this government as persecution of individuals that speak out against the government is a common occurrence even at the Parliament level, with opposition members facing disciplinary measures, penalties and taken to task by government forces.Over the past 10 years, I have been emotionally drained from the struggles I have been facing over the years. I was forced to resign from my government job as I saw little to no opportunity for development and promotion, even due to the fact that I accumulated nearly 10 years of experience but any difference of view against the current government would force anyone to be a victim of mistreatment especially under the government administration which I believe played a big role in my stagnant nature of employment. It came to a point where I just couldn’t find the energy to attend work as I was constantly depressed and frustrated and this would be evident at home where my parents would witness, on a daily basis, the state of emotion that I would be in. I couldn’t continue to put myself in such a situation which was taking a toll on me as I felt discriminated and treated as an outcast in my work environment and especially being young, it wasn’t worth putting myself through such situations…… Of all the concerns expressed on the current government leadership, one stands out above everything else and that is the presence of China in the Fiji Islands, let alone, in the Pacific. With the current government’s “Looking North” policy, Australia and New Zealand have been left out and the strong presence of China has stepped in, aggressively taking over development projects and infrastructural developments all over the country including loaning financial assistance to the Fiji government… I don’t see a safe and steady future for me in Fiji as I have undergone emotional stress and depression following the effects the 2006 military coup had on me and my family over the following years, I have felt threatened to keep my views on the government to myself including the Chinese influence that is occurring throughout Fiji. My work involved me working with communities around Fiji and I have been treated as an outcast in many communities and work environment, hence, the reason why I had to resign and find a safe and stable environment here in Australia and also considering that I also already have family here.I have no intentions of returning or setting up my life in Fiji as I have faced discrimination from my views and beliefs and been through too many emotional stress and depression modes where I struggled a lot, especially feeling threatened from communities and personnel’s that shared contrary views and I would not be able to find employment in Fiji any more to be able to survive. Personal contradictions to the government is harmful to my livelihood and this filters down to community levels where government sympathisers will outcast, discriminate or worse, in many cases, being physical and emotional harm to you and this is happened and will continue to happen to me under this current government system if I decide to return to Fiji and I do not want to face that risk…… Seeking help in an environment that is concurrently excuse exuding an atmosphere or condition of discrimination against me and my family is oppressively challenging and emotionally exhausting hence seeking help outside of the environment of Fiji is the only logical option that would warrant a free, open and safe environment to be able to acquire the needed help and assistance and would allow a much relaxing and healing process for me. There have been several cases of people being criminally charged for voicing their concerns and opinions on their contrary political beliefs and views with individuals being targeted in and outside of the political arena, so I feel it is much safer for me to get out of the country especially during this election is where tensions are flaring, and cautiousness needs to be adhered to so as not to be victimised. I cannot find solitude in Fiji as a discriminative environment is a driving factor of the suffering and depression my family and I had to endure over the years. I cannot go to my village as that is where my whole family unit is and originates and I cannot put them in a risky position of being targeted or harmed, hence, the only option I see as safe is to flee the country and Australia plays a big part in my life as this is where I was born and lived the first five years of my life and also having family here helps a lot in terms of support. I do not see any other country I could go to. Since the 2006 military takeover, government officials that were removed had also family and relations that got affected also, discriminated and suffered tremendously and even till now, any opposition against the government would have families also targeted.… I don’t see a possible safe future for myself after every explanation I have just stated in this document. I’m not seeking for much but just a chance to build a free, healthy, safe and new life in Australia.
Decision
Reasons for decision
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Fiji.DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.David JamesSenior MemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Claims The applicant in his visa application referred to his ‘Statement of claims of Protection’ which was titled ‘Personal Statement’ as outlining his claims. This document was received by the Department on 19 September 2018 and in part and as relevant stated that:… I was born in [Town 1 in] Australia when my father came to study back in [specified year]. We were fortunate enough that we weren’t in Fiji when the first military coup occurred in May 1987. Many of my relatives and family friend suffered tremendously from that first two, leaving many unemployed, distraught and an impending struggle over the following years after the coup. As, also well-known, Fiji had undergone another two coup since then, in 2000 and the latest in 2006 taking Fiji back decades in its economy and development.Following the 2006 military takeover, my life and future plans had taken a downturn in life, beginning with my studies where I had to pull out from tertiary studies as I was a recipient of a government scholarship at the time which became dissolved following the takeover including certain government departments that underwent drastic changes to its system. Following my release from university, it took me two years before I could find another opportunity in life as Fiji was facing hard times with international sanctions under an undemocratic government in which the economy was being greatly affected and obvious with little to no opportunities for personal development, especially to the younger generation. Following the 2006 military takeover, I had personal differences against the military government because of the struggles I had to face emanating from that coup and those views I have carried on with me till this day which is a struggle under this government as persecution of individuals that speak out against the government is a common occurrence even at the Parliament level, with opposition members facing disciplinary measures, penalties and taken to task by government forces.Over the past 10 years, I have been emotionally drained from the struggles I have been facing over the years. I was forced to resign from my government job as I saw little to no opportunity for development and promotion, even due to the fact that I accumulated nearly 10 years of experience but any difference of view against the current government would force anyone to be a victim of mistreatment especially under the government administration which I believe played a big role in my stagnant nature of employment. It came to a point where I just couldn’t find the energy to attend work as I was constantly depressed and frustrated and this would be evident at home where my parents would witness, on a daily basis, the state of emotion that I would be in. I couldn’t continue to put myself in such a situation which was taking a toll on me as I felt discriminated and treated as an outcast in my work environment and especially being young, it wasn’t worth putting myself through such situations…… Of all the concerns expressed on the current government leadership, one stands out above everything else and that is the presence of China in the Fiji Islands, let alone, in the Pacific. With the current government’s “Looking North” policy, Australia and New Zealand have been left out and the strong presence of China has stepped in, aggressively taking over development projects and infrastructural developments all over the country including loaning financial assistance to the Fiji government… I don’t see a safe and steady future for me in Fiji as I have undergone emotional stress and depression following the effects the 2006 military coup had on me and my family over the following years, I have felt threatened to keep my views on the government to myself including the Chinese influence that is occurring throughout Fiji. My work involved me working with communities around Fiji and I have been treated as an outcast in many communities and work environment, hence, the reason why I had to resign and find a safe and stable environment here in Australia and also considering that I also already have family here.I have no intentions of returning or setting up my life in Fiji as I have faced discrimination from my views and beliefs and been through too many emotional stress and depression modes where I struggled a lot, especially feeling threatened from communities and personnel’s that shared contrary views and I would not be able to find employment in Fiji any more to be able to survive. Personal contradictions to the government is harmful to my livelihood and this filters down to community levels where government sympathisers will outcast, discriminate or worse, in many cases, being physical and emotional harm to you and this is happened and will continue to happen to me under this current government system if I decide to return to Fiji and I do not want to face that risk…… Seeking help in an environment that is concurrently excuse exuding an atmosphere or condition of discrimination against me and my family is oppressively challenging and emotionally exhausting hence seeking help outside of the environment of Fiji is the only logical option that would warrant a free, open and safe environment to be able to acquire the needed help and assistance and would allow a much relaxing and healing process for me. There have been several cases of people being criminally charged for voicing their concerns and opinions on their contrary political beliefs and views with individuals being targeted in and outside of the political arena, so I feel it is much safer for me to get out of the country especially during this election is where tensions are flaring, and cautiousness needs to be adhered to so as not to be victimised. I cannot find solitude in Fiji as a discriminative environment is a driving factor of the suffering and depression my family and I had to endure over the years. I cannot go to my village as that is where my whole family unit is and originates and I cannot put them in a risky position of being targeted or harmed, hence, the only option I see as safe is to flee the country and Australia plays a big part in my life as this is where I was born and lived the first five years of my life and also having family here helps a lot in terms of support. I do not see any other country I could go to. Since the 2006 military takeover, government officials that were removed had also family and relations that got affected also, discriminated and suffered tremendously and even till now, any opposition against the government would have families also targeted.… I don’t see a possible safe future for myself after every explanation I have just stated in this document. I’m not seeking for much but just a chance to build a free, healthy, safe and new life in Australia.