1913925 (Refugee)

Case [2023] AATA 2414

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 affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5J(1), (5), 36(2)(a), (aa), 65, 91R, 423A, 425
Migration Regulations 1994 (Cth), Schedule 2

CASES
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 220

MIEA 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 437

Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167

Sun v MIBP [2016] FCAFC 52

Sundararaj v MIMA [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. [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.

  2. 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…

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Details
AGLC
1913925 (Refugee) [2023] AATA 2414
Case
[2023] AATA 2414
Decision Date

CaseChat Overview and Summary

This matter concerned a protection visa application made by Fijian nationals. The first applicant claimed to fear harm from the Fijian government, military, and police due to his political affiliation with the Social Democratic Liberal Party (SODELPA), which opposed the ruling regime. He alleged he had expressed anti-government opinions in his workplaces, was associated with a coup plotter, and had been interrogated, beaten, and threatened by police, resulting in his name being placed on a watch list. The other applicants were family members of the first applicant. The court was required to determine whether the first applicant had established a real chance of suffering significant harm if returned to Fiji, and consequently, whether the other applicants, as members of his family unit, were entitled to protection visas.

The court considered the credibility of the first applicant's claims, noting inconsistencies and omissions in his evidence. Specifically, the claim of late participation in a coup and the extent of his association with a coup plotter were questioned. The court found that the applicant's evidence regarding his political activities in Fiji was vague and inconsistent, and he had not provided any supporting documentation. Furthermore, his ability to obtain passports and depart and return from Fiji without issue, and the fact that he was warned but not suspended or dismissed from his employment for his workplace opinions, weighed against his claims of a real risk of harm. The court also took into account country information indicating changes in government and anti-corruption measures in Fiji.

The court affirmed the decision under review. It found that the cumulative effect of the inconsistencies and omissions in the first applicant's evidence, particularly concerning his political activities and alleged persecution, undermined his credibility. The court concluded that the first applicant had not demonstrated a real chance of suffering significant harm if returned to Fiji, and therefore, the claims for protection by the other applicants, who were members of his family unit, also failed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEClaims and evidence provided to the DepartmentProtection 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; ando 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 EVIDENCEClaims and evidence provided to the DepartmentProtection 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; ando his sister [Ms K], and niece [Ms L].