1913925 (Refugee)
[2023] AATA 2414
•30 June 2023
1913925 (Refugee) [2023] AATA 2414 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Anthony Nicholas Silva (MARN 9901579)
CASE NUMBER: 1913925
COUNTRY OF REFERENCE: Fiji
MEMBER:Peter Papadopoulos
DATE:30 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 30 June 2023 at 10:02am
CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit Court remittal – political opinion – supporter and campaign worker for opposition party – expressed anti-government opinions in workplaces – association with coup plotter – interrogated, beaten and threatened by police – name placed on watch list – fear of harm from government, military and police – credibility – late claim of participation in coup – association with coup plotter exaggerated or fabricated – vague and inconsistent evidence, no documentation and cumulative effect of inconsistencies and omissions on other claims – warned but not suspended or dismissed for opinions in workplace – not a party member and minimal activity in Australia – obtained passports and departed and returned without issue – country information – change of government and anti-corruption measures – members of family unit – wife and children – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1), (5), 36(2)(a), (aa), 65, 91R, 423A, 425
Migration Regulations 1994 (Cth), Schedule 2CASES
AVQ15 v MIBP [2018] FCAFC 133
CTV16 v Minister for Immigration [2019] FCCA 686
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167Sun v MIBP [2016] FCAFC 52
Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
[The first-named applicant] is a [Age]-year-old male. He is married to [the second-named applicant], a [Age]-year-old female. [The third-named applicant], a [Age]-year-old male, and [fourth named applicant], a [Year]-year-old male ([Name]), are their children. Each applicant claims to be a national of Fiji.
The applicants arrived in Australia [in] July 2014 as the holders of Subclass 600 Visitor (Class FA) visas. They have not departed since that date. Prior to their arrival on 31 July 2014, [the first and second applicants] travelled to Australia as the holders of Subclass 600 Visitor (Class FA) visas and remained in Australia between [January] 2014 and [March] 2014. Prior to that particular visit, [the first applicant] was in Australia between [November] 2012 and [January] 2013 as the holder of a Subclass 676 Tourist (Class TR) visa.
On 14 October 2014, the applicants applied for Subclass 866 Protection (Class XA) visas (protection visa).
On 28 January 2015, a delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicants protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate refused to grant the visa on the basis that the applicants are not persons to whom Australia has protection obligations.
On 26 February 2015, the applicants sought review of the delegate’s decision at the Refugee Review Tribunal (the first Tribunal). On 5 September 2016, the first Tribunal, albeit differently constituted, affirmed the delegate’s decision to refuse to grant the applicants protection visas. The applicants sought judicial review of the first Tribunal’s decision and on 2 February 2017, the Federal Magistrates Court remitted the matter, by consent, ordering that it be reconsidered because the first Tribunal failed to have regard to a number of media articles that were provided to it on 21 June 2016.
On 20 February 2017, the Administrative Appeals Tribunal (the second Tribunal) wrote to the applicants confirming that it would reconsider their applications. On 2 August 2017, the second Tribunal, also differently constituted, affirmed the delegate’s decision to refuse to grant the applicants protection visas. The applicants sought judicial review of the second Tribunal’s decision and on 9 May 2019, the Federal Circuit Court of Australia ordered that the matter be reconsidered because the first Tribunal breached its obligation under s 425 of the Act by failing to give [the second applicant] a reasonable opportunity to give evidence and present arguments at the hearing on 13 July 2017.[1]
[1] CTV16 & Ors v Minister for Immigration & Anor [2019] FCCA 686
On 3 June 2019, this Tribunal wrote to the applicants confirming that it would reconsider their applications. This is that reconsideration.
The applicants attended a Tribunal hearing on 19 May 2023. Their representative, registered migration agent Mr Anthony Nicholas Silva (MARN 9901579), also attended the hearing.
The issue in this case is whether any applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether any applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law and mandatory considerations is set out below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act, persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). A non-exhaustive list of instances of ‘serious harm’ is provided in s 91R(2) of the Act, including:
· a threat to the person’s life or liberty;
· significant physical harassment of the person;
· significant physical ill-treatment of the person;
· significant economic hardship that threatens the person’s capacity to subsist; and
· denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant 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) of the Act. (the complementary protection criterion).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
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.
Member of the same family unit
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.
CLAIMS AND EVIDENCE
Claims and evidence provided to the Department
Protection visa application
According to information contained in the protection visa application, the applicants are Fijian nationals. [The first applicant] is a [Age]-year-old Fijian male who was born in Rewa in Fiji. He is the only applicant who has raised claims for protection. Based upon information in the protection visa application form that was completed by [the first applicant] on 13 October 2014, he:
· speaks, reads and writes Fijian and English;
· is ethnically Fijian and a [Church member];
· married [the second applicant] on [Date] in Suva, Fiji;
· last resided in Fiji at [Address], Suva, Fiji;
· completed Diplomas in [Subject 1] ([Year]) and [Subject 2] ([Year]) in Fiji;
· was employed in Fiji by:
o [Employer 1] as [an Occupation 1] from [Year] to [Year];
o [Employer 2] as [an Occupation 2] from [Year] to [Year];
o [Employer 3] as [an Occupation 3] from [Year] to July 2014;
· has the following family members in Fiji:
o his sister, [Ms A], and his brothers [Mr B] and [Mr C];
o his daughters [Ms D] (born [Date]) and [Ms E] (born [Date]), and his son [Mr F] (born [Date]);
o his step-sons, [Mr G] (born [Date]), [Mr H] (born [Date]) and [Mr I] (born [Date]), and his step-daughter, [Ms J] (born [Date]);
· has the following family members in Australia:
o the other three applicants; and
o his sister [Ms K], and niece [Ms L].
Based upon information in the protection visa application form:
· [The second applicant] speaks, reads and writes Fijian and English. She is ethnically Fijian and a [Church member]. She attended [Public School] in [Town] from [Year] to [Year], [College] in [Town] from [Year] to [Year] and [Secondary School] in Suva from [Year] to [Year]. She had been employed as [an Occupation 4] in Fiji.
· [The third applicant] speaks English and Fijian and can read English. He is ethnically Fijian and a [Church member]. He attended kindergarten and primary school in Suva until arriving in Australia in July 2014. Similarly, [the fourth applicant] speaks English and Fijian, is ethnically Fijian and a [Church member], and attended kindergarten in Suva until arriving in Australia in July 2014.
In relation to his claims for protection, [the first applicant] provided the following information in his application form:
· He left Fiji for fear of ‘cruel and inhuman treatment and punishment’ because of his political affiliation with the Social Democratic Liberal Party (SODELPA). SODELPA opposes the regime’s breaches of human rights and restrictions upon freedom of speech. He condemns the regime for its policies and dictatorship style of leadership.
· He brought his family to Australia because he does not want them to ‘face or experience the type of torture that has been experienced’ by his friends and party supporters of democracy. He said that he has ‘gone through the ordeal the fear of being inflicted with injuries due to my vocal opinion on Democracy had haunted me for the past eight years from 2006 to 2014’.
· He does not want to return to Fiji unless a democratic government is elected, having been chosen by people who are free to vote and not ‘forced to vote through threats of the regime’.
· He fears that if he returns to Fiji there is sufficient evidence the regime would hold him in custody and would fabricate a charge that would result in a custodial sentence. He believes the regime would do this due to his affiliation with the only democratic party that has continuously opposed coup culture and dictatorship in Fiji.
· He believes the military, with the assistance of the police, would cause him harm and mistreat him and his family if he returned. He says other families have experienced the same mistreatment when they expressed similar views. He stated that the military, the Fijian government, and the police are linked together. He says they seek to silence anyone wishing to voice their concerns about ‘the illegal Fiji government (2006-2014)’. He added that he present government has been in power for 8 years without an election. He fears there may be further coups in Fiji and says that the ‘greedy leaders’ would do anything now, including use force, to remain in government.
· Six days after arriving in Australia, he received an email from a colleague informing him that his name was on a ‘Watch List’. He says this was done in spite of his employer, [Employer 3], retaining his seven months of leave pay and three weeks’ pay. He knew the military regime would find a way of putting his name on the Watch List.
Supporting documents
The following documents were lodged with the Department in support of the protection visa application:
· Department forms 866B, 866C and 866D completed by [the first applicant] on 13 October 2014 and received by the Department on 15 October 2014.
· A copy of the biodata page of a Fijian passport ([Reference 1]) issued to [the first applicant] [in] 2006 and which expired [in] 2016.
· A copy of the biodata page of a Fijian passport ([Reference 2]) issued to [the second applicant] [in] 2012 and which expired [in] 2022.
· A copy of the biodata page of a Fijian passport ([Reference 3]) issued to [the third applicant] [in] 2013 and which expired [in] 2023.
· A copy of the biodata page of a Fijian passport ([Reference 4]) issued to [the fourth applicant] [in] 2013 and which expired [in] 2023.
· A Fijian marriage certificate specifying that [the first applicant] and [the second applicant], both divorcees when they married each other, were married in Fiji on [Date].
· Each applicant’s Fijian birth certificate.
· A copy of an email from [Email address] to [the first applicant’s email address] dated [August] 2014 which read: ‘A very Good Morning to STO (6) Attached please find for your information. [M] has said that u r on watch list now because u are still holding onto a external hard drive which belong to the Government of Fiji…… lol’. Attached to the email was a pdf document with file name ‘[the first applicant] Resignation.pdf’.
Protection visa application interview
The applicants were invited to attend an interview with the Department in connection with their protection visa application on 27 January 2015. The applicants did not attend the interview and the delegate proceeded to a decision on 28 January 2015.
Summary of the delegate’s decision
The delegate’s reasoning in support of their decision to refuse to grant the visa is summarised as follows:
· The delegate accepted the identities of the applicants as claimed.
· The delegate found that [the first applicant] did not have statutory protection available to him in a third country as set out in s 36(3) of the Act.
· The delegate was unable to determine the credibility of [the first applicant]’s claims due to his failure to attend his Department interview.
· Whilst the delegate was satisfied that [the first applicant] claimed protection for a protection reason (political opinion) and that the harm he claimed to fear was serious harm amounting to persecution, the delegate was not satisfied there was a real chance of [the first applicant] being persecuted for a protection reason. The delegate reached this conclusion as [the first applicant] had failed to attend the interview and she was thereby unable to verify any of his written claims. Therefore, the delegate rejected the entirety of [the first applicant]’s claims and found that Australia did not owe him protection obligations.
· As [the first applicant] was not owed protection obligations, it followed that the remaining applicants were not members of the family unit of a person who was owed protection obligations. On this basis, [the second, third and fourth applicants] were also refused protection visas.
Claims and evidence provided to the first Tribunal
On 26 February 2015, the applicants lodged an application for review of the delegate’s decision with the first Tribunal.
On 21 January 2016, the first Tribunal received notification that [the first applicant] was represented in connection with the review application by a migration agent, namely Mr Anthony Nicholas Silva (MARN 9901579) (the representative).
Pre-hearing submissions and evidence
On 7 June 2016, the representative provided the first Tribunal with two documents. The first document, entitled ‘AAT Submissions – 1502814 – [the first applicant]’ and signed by [the first applicant] on 6 June 2016, contained, among others things, a summary of the claims and a request for [the second applicant] to give oral evidence at the hearing. The second document is an unsigned statutory declaration of [the first applicant] detailing his claims as follows:
· When he applied for the protection visa, he was living with his sister and provided her address. Shortly afterwards, he moved to a new address but went to his sister’s address on a fortnightly basis to check if the Department had sent him any correspondence.
· Having not heard from the Department for some time, he went to the Department one day and was informed that a refusal letter had already been sent and that day was the final day he could lodge an appeal. He lodged the appeal straight away. He later determined that his sister had in fact received the interview invitation but had put it somewhere and forgotten about it.
· He did not mention certain events in his application because when he applied for protection he did not have any professional help. His sister helped him but she was short on time. She told him not to mention all of his claims in case the Department checked with Fijian authorities whether or not those claims were true. Her advice was that he could provide the details of his claims at the interview stage.
· [In] November 2013, he said he was taken to the [Location 1] Police Station where he was interrogated and threatened. He explained that at 9pm, he was at home asleep. His wife [the second applicant] and their two sons, [the third and fourth applicants], were also at home.
· There was a knock at the door. His wife opened the door and saw two police officers. One at the door and another in a double cabin vehicle. The police rudely asked for [the first applicant].
· His wife then woke him up. He went downstairs and the police asked him to accompany them to the police station. He and his wife noticed a third police officer on the left side of their house. His wife went around the house and said there was a fourth police officer at the house’s back entrance.
· He asked the police officer if he had a search warrant and was told to ‘just come to the police station’. He was frightened and complied. His wife cried and protested and his eldest son ‘got scared and was screaming’.
· Once inside the double cabin vehicle, he sat in the middle with two soldiers on either side and two further officers in the front seat. He said neither the solders nor officers spoke but they looked at him with anger.
· When they arrived at the police station, he was taken to a room to see a senior officer while two others guarded the door. The senior officer asked him about his involvement with coup plotters and stated that they (the police) had information which suggested he was one of the people actively behind a coup plot. At that time in Fiji, there were rumours in military circles concerning a possible coup and previous coup plotters were in jail.
· He was questioned for approximately one and a half hours. During this time, two people struck him with batons. He was then placed against a wall whilst another person punched him. He slumped to the floor at which time someone put their boot onto his shoulder. He was then locked up for one hour, before being questioned and threatened again for a further thirty minutes. Following this, he was again locked up for some time before being left on a road around 3.30am.
· Because of his experiences [in] November 2013, he decided to travel to Australia, arriving [in] January 2014. He considered remaining in Australia but was asked to return to Fiji by Teimumu Kepa to assist her with elections. His wife was opposed to him returning but he felt that SODELPA would win the September 2014 elections, and therefore, he would be safe. Just in case, however, he and his wife applied for Australian visas so that they could leave Fiji if SODELPA lost the election.
· He belongs to a clan committed to serving Teimumu Kepa. He visited her place many times and assisted with her election planning.
· On Thursday [Day 1] July 2014, he was working at [Employer 3]. Around 10am that day, he received a call from a policewoman instructing him to immediately go and see another policewoman in the [Building]. He did as instructed. When he arrived at the [Building] he met Police Officer [N] who explained that he had been requested to present because of his connection with a coup plotter, Mr Metuisela Mua (Mr Mua).
· He explained to Officer [N] that Mr Mua was a close friend who [did a job task] part-time. He acknowledged that Mr Mua had been a main conspirator in a coup plot. He denied speaking with Mr Mua about a plot to conduct a coup. However, Officer [N] accused him of lying and claimed that he had been involved with the coup for several years. A male police officer, who was in the room, then tried to ‘throttle’ him by squeezing his neck. He was then threatened by Police Cell Officer [O] to own up to his mischief. He was kept at the [Building] for nearly 8 hours between 10.30am and 6.30pm.
In other evidence before the Tribunal, it has been claimed that the second incident of harm at [Building], described above, occurred on [Day 2] July 2014 which was a Sunday. The Tribunal draws no adverse inference from this inconsistency and accepts the claimed date of this second incident is [Day 1] July 2014 as this was the date given by [the first applicant] when the claim was first raised by him. It is also a Thursday which accords with his narrative that this event occurred on a day when he was working at [Employer 3]. Accordingly, so as to avoid confusion, all references in this decision to the second indent of harm claimed have been described as having occurred on [Day 1] July 2014.
The hearing: supporting documents and oral evidence
[The first applicant] and [the second applicant] appeared before the first Tribunal on 17 June 2016 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The Tribunal has listened to a copy of the hearing recording and refers to it, where relevant, in the findings and reasons below.
Post-hearing submissions and evidence
Following the hearing, the representative wrote to the first Tribunal and provided the following documents:
· A signed copy of the [the first applicant]’s statutory declaration previously provided on 7 June 2016 which had been sworn on 21 June 2016 ([the first applicant]’s statutory declaration of 21 June 2016).
· A signed by undated resignation letter from [the first applicant] addressed to the Director, [Work section], Fiji specifying that he wished to resign from his role effective [August] 2014.
· A letter dated [September] 2014 from [Mr P], [Job title], Fiji addressed to [the first applicant] acknowledging receipt of his notice of resignation, confirming that it had been accepted with effect from [August] 2014 and specifying the following:
In lieu of the aforesaid notice we will recover the amount of money that you are supposed to pay to Government with reference to clause 11 of your contract. This will be done through recovery from your salary and leave and the balance will then be paid to you. By a copy of this letter the Finance Unit is advised to adjust your salary accordingly.
· Various web-based media articles as follows:
o article dated 3 June 2016 entitled ‘Suspension of indigenous MP in Fiji underlines government’s stranglehold on freedom of expression’;
o The Fiji Times Online article dated 4 October 2014 entitled ‘Silence no more’;
o Radio New Zealand article (undated) entitled ‘Rule of law abused in Fiji – Winston Peters’;
o Radio New Zealand article dated 5 November 2015 entitled ‘Call to end Fiji police brutality’;
o ABC News article dated 11 November 2015 entitled ‘Australia and New Zealand urged to voice ‘concern’ over resignation of Fiji’s police commissioner’.
· A hard drive belonging to [the first applicant].
The first Tribunal asked the representative to identify which of the many documents on the hard drive the applicants would like the Tribunal to consider. [The second applicant] then collected the hard drive from the first Tribunal and the representative submitted that the hard drive was not relevant to the case.
On 5 September 2016, the first Tribunal affirmed the delegate’s decision to refuse to grant the applicants protection visas.
Claims and evidence provided to the second Tribunal
The applicants sought judicial review of the first Tribunal’s decision and, on 2 February 2017, the Federal Magistrates Court remitted the matter, by consent, ordering that it be reconsidered because the first Tribunal failed to have regard to a number of media articles that had been provided to it on 21 June 2016.
On 20 February 2017, the second Tribunal wrote to the applicants confirming that it would reconsider their applications.
Pre-hearing submissions and evidence
On 6 July 2017, the representative provided the second Tribunal with two documents. The first document, entitled ‘AAT Submissions – 1702867 – [the first applicant]’ and signed by [the first applicant] and the representative on 6 July 2017, contained, among others things, a summary of the claims and a request for [the second applicant] to give oral evidence at the hearing. The second document is [the first applicant]’s statutory declaration of 6 July 2017 ([the first applicant]’s statutory declaration of 6 July 2017) detailing the following claims:
· His relative [Q], who is also related to Sitiveni Rabuka and Mr Mua, was currently in Australia. [Q] told him that Mr Mua:
o had tried to leave Fiji twice but had not been permitted to exit the country;
o is being constantly monitored and followed;
o believes that his associates are ‘also in trouble’ and that [the first applicant] should not return to Fiji.
On 10 July 2017, the representative provided the second Tribunal with the following web-based blog and media articles:
· article dated 4 December 2016 entitled ‘Fiji: A darker side of paradise’;
· The Fiji Times Online article dated 27 June 2017 entitled ‘Youth leader quizzed’;
· Blog post from the SODELPA website dated 4 May 2017 entitled ‘SODELPA Youth President Koroisavu tells Khaiyum stop budgeting consultations electioneering’;
· Fiji Sun article dated 26 June 2017 entitled ‘SODELPA Youth Leader Being Questioned By Police’;
· The Fiji Times Online article dated 3 January 2017 entitled ‘Wife claims men beaten by police’;
· Radio New Zealand article dated 18 February 2017 entitled ‘Man dies in Fiji police cell; Mother claims he was beaten’.
The hearing: supporting documents and oral evidence
[The first applicant] and [the second applicant] appeared before the second Tribunal on 13 July 2017 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The Tribunal has listened to a copy of the hearing recording and refers to it, where relevant, in the findings and reasons below.
Post-hearing submissions and evidence
The second Tribunal did not receive any post-hearing submissions or evidence.
On 2 August 2017, the second Tribunal affirmed the delegate’s decision to refuse to grant the applicants protection visas.
Claims and evidence provided to this Tribunal
The applicants sought judicial review of the second Tribunal’s decision and, on 9 May 2019, the Federal Circuit Court of Australia ordered that the matter be reconsidered because the first Tribunal breached its obligation under s 425 of the Act by failing to give [the second applicant] a reasonable opportunity to give evidence and present arguments at the hearing on 13 July 2017.[2]
[2] Ibid.
On 3 June 2019, this Tribunal wrote to the applicants confirming that it would reconsider their applications. This is that reconsideration.
Pre-hearing submissions and evidence
On 11 May 2023, the representative provided this Tribunal with a document, entitled ‘AAT Submissions – 1913925 – [the first applicant]’ that had been signed by [the first applicant] and the representative on 11 May 2023. The document, contained, among others things, a summary of the claims and a request for the Tribunal to take oral evidence at hearing from [the second applicant] in relation to her husband’s claims, and [the third applicant] in relation to ‘truthfulness of the [November] 2013 incident’.
The hearing: supporting documents and oral evidence
The applicants appeared before the Tribunal on 19 May 2023. The representative also attended the hearing. [The first applicant], [the second applicant] and [the third applicant] were sworn in to give evidence. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages. Where relevant, the oral evidence of each of these three applicants is discussed in the Tribunal’s findings and reasons below.
At the outset of the hearing, a Tribunal officer was given, and made photocopies of, each applicant’s Fijian passport including [the second applicant]’s new Fijian passport (issued [in] 2022 and due to expire [in] 2032). The Tribunal officer returned the passports to [the first applicant] and [the second applicant] during the hearing.
Taking into account the nature of the claims raised, and in an effort to encourage the applicants to be forthcoming in their evidence, the Tribunal assured the applicants during the making of its preliminary remarks that the hearing was confidential and that nothing said in the hearing would lead to them or their family members being identified outside the Tribunal.
The Tribunal has taken into account [the first applicant]’s somewhat limited familiarity with the Tribunal setting, noting that he had previously appeared before the first Tribunal and the second Tribunal. With this in mind, the Tribunal asked straightforward questions during the hearing, and paraphrased and checked his responses where necessary. The Tribunal has also taken into account [the first applicant]’s degree of familiarity with the English language as evinced through his completion of the relevant protection visa application forms, his testimony before the first Tribunal and the second Tribunal, his tertiary level education in the English language medium and his presence in Australia for the past nine years where he has worked in professional contexts. While acknowledging the representative’s oral submission at hearing that [the first applicant] had requested the use of the interpreter throughout the hearing, it transpired that [the first applicant] was capable of understanding the Tribunal and, for the most part, comfortable communicating with it during the hearing without the use of an interpreter. That said, the Tribunal encouraged [the first applicant] to rely upon the interpreter if at any point he did not understand the Tribunal’s questions or wished to convey his responses through the interpreter using the Fijian language rather than speaking with the Tribunal directly in the English language. [The first applicant] understood this and, at times, availed himself of the services of the interpreter during the hearing. At times, the Tribunal elected to direct some questions to [the first applicant] through the interpreter and requested that he use the interpreter to provide evidence on some issues that required specific detail or traversed more complex concepts. At other times, such as where [the first applicant]’s responses appeared to be insufficient or otherwise required clarification, communication was facilitated through the interpreter to ensure that meaning was properly conveyed between the Tribunal and [the first applicant].
The Tribunal took a similar approach with [the second applicant] when communicating with during the hearing. Mindful that [the second applicant] be fully afforded an opportunity to give evidence and corroborate relevant aspects of her husband’s claims and, where appropriate, address concerns the Tribunal had in relation to those claims, the Tribunal asked many open questions. Given her limited familiarity with the Tribunal setting, the Tribunal asked straightforward questions of [the second applicant], and paraphrased and checked her responses where necessary. In doing so, the Tribunal was cognisant of [the second applicant]’s level of familiarity with the English language as evinced through her testimony before the first Tribunal, her education in the English language medium and her presence in Australia for the past nine years. While acknowledging the representative’s oral submission at hearing that an interpreter be present during the hearing to assist with communication, it transpired that the Tribunal was satisfied that [the second applicant] was, for the most part, capable of understanding the Tribunal and comfortable communicating with it during the hearing without the use of an interpreter. That said, the Tribunal encouraged her to rely upon the interpreter if at any point she did not understand the Tribunal’s questions or wished to convey her responses through the interpreter. [The second applicant] understood this and, at times, availed herself of the services of the interpreter during the hearing. At times, the Tribunal elected to direct some questions to [the second applicant] through the interpreter and requested that she use the interpreter to provide evidence on some issues that required specific detail or traversed more complex concepts. At other times, such as where her responses appeared to be insufficient or otherwise required clarification, communication was facilitated through the interpreter to ensure that meaning was properly conveyed.
[The third applicant] is [Age] years old. Having had regard to the AAT Migration and Refugee Division Guidelines on Vulnerable Persons,[3] one or both of [the third applicant]’s parents sat next to him during his appearance before the Tribunal. Given his age and lack of familiarity with the Tribunal setting, the Tribunal asked him straightforward questions, and paraphrased and checked his responses where necessary. At the outset of the hearing, [the third applicant] confirmed that he was comfortable communicating with the Tribunal in English and did not require assistance from the interpreter. The Tribunal considered this information, along with [the third applicant]’s primary and secondary school level education in the English language medium in Australia and his presence in Australia for the preceding nine years, and proceeded to communicate with him without the use an interpreter. The Tribunal was satisfied that [the third applicant] was capable of understanding the Tribunal and effectively communicating with it during the hearing.
Post-hearing submissions and evidence
[3] Administrative Appeals Tribunal, Migration and Refugee Division Guidelines on Vulnerable Persons (November 2018)
The Tribunal did not receive any post-hearing submissions or evidence.
CONSIDERATION OF Claims and evidence
Nationality: Country of reference/receiving country
The applicants claim to be citizens of Fiji and provided the Department copies of their Fijian passports. The delegate was satisfied that the applicants were using their own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of Fiji. The Tribunal accepts that Fiji is their receiving country for the purpose of assessing their claims for protection.
Credibility
Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[4] Fox v Percy (2003) 214 CLR 118
As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[5] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.
[5] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25]
[7] Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines)
[8] UNHCR Handbook, re-issued February 2019 at [203]–[204]
In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[9] The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions[10] and that one study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[11]
[9] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9
[11] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, trauma and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[12] As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[13] such factors have been taken into consideration both in the conduct of the hearing and in evaluating the evidence.
[12] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[13] Ibid
Having outlined the Tribunal’s approach to fact-finding, in determining whether an applicant is entitled to protection in Australia, it remains necessary to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[14] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[15]
[14] MIMA v Rajalingam (1999) 93 FCR 220
[15] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The mere fact that a person claims fear from harm for a particular reason does not establish the genuineness of the fear or that it is ‘well-founded’ or felt for the reason claimed. Likewise, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[16] Section 5AAA of the Act makes clear that it is an applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does it have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to adequately advance.[17]
[16] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 91, Prasad v MIEA (1985) 6 FCR 155 at 169-170
[17] Sun v MIBP [2016] FCAFC 52 at [69]
The Tribunal does not consider things like minor changes in dates, minor details omitted from claims in the written application, or minor mistakes and omissions from an applicant’s personal history would, on their own, undermine an applicant’s credibility. However, when the evidence set out here, some of it on critical matters, is considered cumulatively, the Tribunal finds that these minor errors, inconsistencies and omissions together take on more significance and so have been given weight.
Independent information
The Tribunal has had regard to a range of country information, including the Department of Foreign Affairs and Trade (DFAT) Country Information Report – Fiji, issued on 20 May 2022.
Mistreatment of activists and opposition party supporters prior to the December 2022 elections
In May 2022, DFAT reported that that politics in Fiji was no longer characterised by the unrest of the past.[18] At that time, Prime Minister Josaia Voreqe ‘Frank’ Bainimarama’s Fiji First Party held power and while DFAT was aware of allegations of police harassing members of opposition parties, such incidents were likely the result of orders from senior people in police, military or government and there had been instances where the Public Order Act had been used to prevent opposition meetings, protests, or even shoot down debate. These events had been directed at high-profile people within the opposition and DFAT understood that ‘rank and file and low-profile opposition party members would be much less likely to experience interference’.[19]
[18] DFAT Report - Fiji (20 May 2022), para. 3.32
[19] Ibid., paras. 3.32, 3.36 and 3.38
A Department of Home Affairs report released on 23 March 2022[20] revealed that the Country of Origin Information Services Section did not locate any information of the former Fijian government’s mistreatment of anti-government activists and SODELPA members who return to Fiji.
Key political developments following the December 2022 elections
[20] Department of Home Affairs, Standard Q & A Report, “Fiji-20220302123710 – SODELPA members overseas – Anti-Fijian government activists overseas – SODELPA (NSW)” (23 March 2022)
Since publication of the DFAT Report in May 2022, significant changes have taken place in Fiji. Power dynamics have shifted since the December 2022 elections when Prime Minister Bainimarama’s Fiji First Party failed to win a majority, ending his 16 years of power in Fiji.[21] The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three-party coalition government that includes SODELPA and the PA's political ally, the National Federation Party (NFP).[22]
[21] 'Fiji’s new politics', Interpreter(Lowy Institute for International Policy), 17 January 2023, 20230619092820; 'Fiji: A chance to stop political history repeating', Interpreter (Lowy Institute for International Policy), 14 February 2023, 20230317105123
[22] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023, 20230619093756
It has been only six months since the new government came into power, while former Prime Minister Bainimarama was in power for almost 16 years and ‘wielded extraordinary power over Fiji’.[23] The new Fijian government under Prime Minister Rabuka has committed itself to democratic government and governance including appropriate standards of conduct for Ministers and listening to a wide range of political views. The government has also made a specific commitment to media freedom and the part it plays in Fiji’s democracy.[24]
[23] 'History’s Shadow Looms Over Fiji', The Diplomat, 2 February 2023, 20230605132913
[24] (accessed 15 February 2023); (accessed 15 February 2023)
The new government has a very narrow parliamentary majority, although this has not prevented it from embarking on sweeping changes.[25] It has pursued domestic reforms aimed at dispensing with many vestiges of Bainimarama’s Fiji, in which loyalists were positioned throughout the government and its agencies and laws sharply curtailed fundamental freedoms. A range of investigations, suspensions, and retirements ensued at such a pace in the first two weeks of 2023 that, on 17 January 2023, the commander of the RFMF, Major General Jone Kalouniwai, issued a statement criticising the new government’s ‘ambition’ and ‘sweeping changes’, reminding it of the RFMF’s constitutional obligation to ensure the ‘well-being’ of all Fijians. In particular, Major General Kalouniwai warned against undermining the 2013 Constitution, which declares the military to be a ‘guardian’ of Fiji democracy and gives ‘overall responsibility’ to the military ‘to ensure at all times the security, defence and wellbeing of Fiji and all Fijians’.[26] Major General Kalouniwai was promptly rebuked and has since publicly demonstrated loyalty to the new government.[27]
[25] 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, 28 February 2023, 20230605132703; 'History’s Shadow Looms Over Fiji', Diplomat, 02 2023, 20230605132913
[26] ‘Fiji’s government may have changed, but the military is making it clear it will not go quietly’, Guardian, 19 January 2023
[27] Ibid.; ‘RFMF Commander Concerned About Sweeping ‘Shortcuts’ Made by Government’, Fiji Sun, 17 January 2023
Since Major General Kalouniwai’s statement was issued in January 2023, there have been a number of key public service position changes[28], including the suspension of Fiji's Police Commissioner Sitiveni Qiliho, the Commissioner of the Fiji Corrections Service Francis Kean[29] and the Director of Public Prosecutions Christopher Pryde.[30]
[28] ‘History’s Shadow Looms Over Fiji', Diplomat , 2 February 2023, 20230605132913
[29] 'Fijian women's rights activists welcome suspension of police chief, prison boss', Australian Broadcasting Corporation (ABC): Pacific Beat, 30 January 2023, 20230619092514
[30] 'Fiji's top prosecutor suspended for alleged misconduct', Radio New Zealand (RNZ), 14 April 2023, 20230417131125
In February 2023, former Prime Minister Bainimarama was suspended from parliament after giving a divisive speech in which he called for the military to intervene.[31] In March 2023, he resigned from parliament (but remains leader of the Fiji First Party).[32] One day later he was arrested and charged with abuse of office and is currently awaiting trial with a date set as 17-28 July 2023.[33]
[31] 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, 28 February 2023, 20230605132703. And 'Fiji's former prime minister Frank Bainimarama thrown out of parliament, suspended for three years after divisive speech', Australian Broadcasting Corporation (ABC) (News), 17 February 2023, 20230619094939
[32] 'Fiji's former prime minister Frank Bainimarama resigns from parliament, will not quit politics', Australian Broadcasting Corporation (ABC) (News), 08 March 2023, 20230619095356
[33] 'Fiji’s former leader Frank Bainimarama released on bail', Associated Press (AP), 10 March 2023, 20230317103633; 'Fiji's Bainimarama granted bail, ordered to remain in country', Radio New Zealand (RNZ), 10 March 2023, 20230320114536; 'Trial date set for ex-Fiji PM Bainimarama and suspended police chief Qiliho', Radio New Zealand (RNZ), 11 May 2023, 20230524141428
In early May 2023, former Attorney General, Aiyaz Sayed-Khaiyum, was also arrested and charged with abuse of office.[34] In mid-May 2023, 24 politicians from Fiji First were suspended from parliament for breaching political party auditing requirements, leaving Fiji without an opposition for a short time until the suspension was lifted after the party submitted account records.[35]
[34] 'Fiji's former attorney-general released on bail', Radio New Zealand (RNZ), 2 May 2023, 20230619100309
[35] 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023, 20230524141939; 'Fiji First angry over suspension by Acting Registrar of Political Parties', Radio New Zealand (RNZ), 19 May 2023, 20230524140903; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023, 20230619094006; 'Fiji First party complies with Act', Fiji Times, 10 June 2023, 20230619103505 31 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023, 20230619093756
In March 2023, the Australian Institute of International Affairs (AIIA) reported that ‘[p]eople who were deported, threatened, or forced to leave Fiji for speaking out against the previous government are being granted permission to return, and they are doing so.’[36] The AIIA also stated that ‘Fijian officials, business leaders, citizens, foreign diplomats, and observers are cautiously optimistic that Rabuka’s coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji’s democratic institutions.’[37]
Fiji’s Immigration Watch List
[36] 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244
[37] Ibid.
A DFAT Report issued in 2017[38] outlined the following information on Fiji’s exit and entry procedures:
5.31 For Fijian citizens returning on their Fijian passport, the border official checks and registers the passport number, name and date of birth of the bearer.
5.32 All inbound and outbound passengers (including Fijians) are checked against the Oracle system, which includes a ‘Stop Watch’ List (including, for example, entries based on court orders to stop departure, or alerts from Customs if the passenger has outstanding tax debts).
5.33 In addition to the Oracle system, Fiji immigration services and border security have installed an Integrated Border Management System (IBMS). IBMS integrates with digital and biometric passport systems compatible with International Civil Aviation Organisation (ICAO) standards to enhance the level of security at the border. It is also compatible with the Australian Advanced Passenger Information System and Advanced Passenger Processing applications that advance passenger lists to airlines while conducting watch list processing.
[38] DFAT Country Information Report – Fiji (27 September 2017)
162. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the first applicant] being removed from Australia to Fiji, there is a real risk that he will suffer significant harm: s 36(2)(aa).
Conclusion
163. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
164. The Tribunal affirms the decision not to grant the applicants Protection visas.
Peter Papadopoulos
Member
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