1918510 (Refugee)

[2023] AATA 4836

1918510 (Refugee) [2023] AATA 4836 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sashimendra Singh (MARN: 9903675)

CASE NUMBER:  1918510

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Gabrielle Cullen

DATE:28 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 November 2023 at 11:01am

CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Court remittal – political opinion – Soqosoqo Duavata ni Lewenivanua (SDL) – Social Democratic Liberal Party (SODELPA) – against the former Bainimarama regime – photographed by a bodyguard of Bainimarama – fear of FijiFirst – change in political landscape since the December 2022 elections – further military coup speculative – delay in departure – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
CPE15 v Minister for Immigration [2017] FCA 591
SZQXE v MIAC [2012] FCA 1292

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who are citizens of Fiji, applied for the visas on 30 January 2014. The sixth named applicant, who was born on [date] in Australia, was taken to have made a combined application with her parents and a decision to refuse her application was subsequently made by a delegate of the Minister for Immigration on 6 July 2015.

3. Movement records indicate the first and second named applicants arrived in Australia [in] December 2013 on a visitor visa granted on 18 November 2013. The second named applicant previously visited Australia [from] December 2012 [to] January 2013 on a visitor visa. The third, fourth and fifth named applicants arrived [in] December 2013.

4. The first named applicant (the applicant) claims to fear harm by the government if he returns to Fiji on the basis of his political opinion arising from his past experiences in Fiji including: being physically abused by military soldiers in 2000 because he was wrongly associated with a group of George Speight supporters and a physical altercation he had with one of these soldiers in an incident in 2012; his father’s detention at the military camp and questioning in 2011 following the escape by Ratu Uliilakeba Mara to Tonga and his subsequent death at sea; the applicant’s role in putting forward an anti-regime motion at a meeting of the Lau Provincial Council; and his activities since his arrival in Australia with the Social Democratic Liberal Party (SODELPA) and the Fiji Democracy and Freedom Movement (the FDFM). This includes his attendance at a public rally in 2014 in Sydney, where he was photographed with prominent members of these organisations, and his attendance at a protest rally in Canberra in 2019. In his recent submission, he claims to be [office bearer] of the [City 1] Branch of SODELPA and on the NSW Executive Committee of SODELPA.

5. The second named applicant claims she fears harm by the government due to her involvement with SODELPA and FDFM in Australia, including attending protests in 2014 and 2019, and her profile as a result of photographs taken and material posted on social media in 2019, when she criticised the son of the former Prime Minister, Frank Bainimarama, for domestic abuse of her [relative]. She also relies on her membership of the family unit of the first named applicant. She indicated she did not fear harm on account of any claims or matters arising before she departed Fiji in 2013.

6. The third, fourth, fifth and sixth named applicants did not make any individual protection claims, all relying on their membership of the family unit of the first and second named applicants as their children.

7. On 10 June 2014 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

8. The delegate refused to grant the visas on 26 June 2014 on the basis that the applicant does not have a profile of interest that will cause him to be targeted by the Fijian authorities if he returns to Fiji. The delegate was of the view that there did not appear to be any urgency about the applicant’s departure from Fiji in 2013, and he failed to mention his long term and continuing government employment in his application form, which suggested he was of no interest to the military government. The delegate was also concerned at omissions and delays in advancing significant elements of his claims such as his father’s detention by the military and association with [Mr A].

9. The first and second named applicants appeared before the Tribunal (differently constituted) on 4 June 2015 and 7 September 2015 to give evidence and present arguments and, where relevant, the evidence from those hearings appears in this decision. The applicants were provided with the assistance of an interpreter in the Fijian language. The applicants were represented in relation to the review by their registered migration agent.

10. On 28 January 2016 the Tribunal (differently constituted) affirmed the decision of the Department not to grant the applicants protection visas.

11. [In] January 2019 the Federal Circuit Court dismissed the appeal of the applicants.

12. [In] May 2019 the Federal Court allowed the appeal and remitted the matter to the Tribunal for redetermination on the basis that the Tribunal fell into two jurisdictional errors, those being not considering a clearly articulated claim and not basing its decision on the most recent, up-to-date material before it. In particular, the Court found that the Tribunal did not consider what the nature and extent of any risk of “being tracked down and brought to justice” might be to a person in the husband’s position who had been photographed by the Prime Minister’s bodyguard in circumstances where the bodyguard recognised him in company with high profile members of opposition parties and opponents of the Prime Minister’s regime.  Nor did it consider what risk a person faced:

    ·who actually had a high profile; or

    ·who was in the husband’s position and could have had such a profile imputed to him by reason of his association with those opposition leaders at the rally in all of the circumstances.

13. The Court also found that the Tribunal did not have regard to the most recent, up-to-date available information being Prime Minister Bainimarama’s statement in August 2015 concerning the risk that a person with an actual or imputed high profile might face in Fiji.

14. The first and second named applicants appeared before the Tribunal on 21 August 2023 to give evidence and present arguments and, where relevant, the evidence from that hearing appears in this decision. The applicants were provided with the assistance of an interpreter in the Fijian language. The applicants’ representative did not attend the hearing. The applicants agreed that they wished to rely on each other’s responses with regard to matters raised under s 424AA and concerns raised by the Tribunal which were raised with them together.

15. The applicants were given until 28 August 2023 to provide further information requested including evidence the applicant is [office bearer] of the [City 1] Branch of SODELPA, evidence his involvement in the 2014 protest was placed in [Publication 1] and/or on [Media 1], evidence of his speeches being online, evidence of the applicants’ involvement in the 2019 protests online, including the second named applicant commenting on Bainimarama’s son abusing her [relative]. Following the Tribunal agreeing to an extension of time to respond, further documents were provided on 1 September 2023 as outlined below.

16. The issues to be considered in this case are as follows:

    ·Are the first and second named applicants credible as to their claims?

    ·Do the applicants have a well-founded fear of persecution in relation to Fiji and meet the protection obligation under the Refugees Convention?

    ·Do the applicants meet the protection obligations under the complementary protection provisions of the Act?

    RELEVANT LAW

17. The relevant criteria for a protection visa are outlined in the attachment to this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:

    ·The applicants’ protection visa applications of 30 January 2014, identity documents, and the applicants’ claims for protection, as well as the application of the sixth named applicant made later.

    ·Oral evidence of the first and second named applicants provided at the Department interview on 10 June 2014 and the Tribunal hearings on 4 June 2015, 7 September 2015 and 21 August 2023.

    ·Statutory declarations and statement from the applicant dated 28 July 2014, 28 May 2015 and 14 August 2023.

    ·Statutory declaration from the second name applicant dated 20 June 2015 clarifying the inconsistencies at hearing.

    ·Photos of the applicant and his wife attending a protest rally in 2014 against the Bainimarama Government when Prime Minister Frank Bainimarama visited Australia.

    ·Submissions from the applicants’ representative dated 28 May 2015, 8 July 2015, 30 August 2015 and 11 November 2015, including all country information submitted.

    ·Letter from [Company 1] regarding the applicant’s father’s employment there from June 2009 to [date] July 2011, serving [in the workplace] as [Position 1] and stating that he passed away [in the workplace] on [date] July 2011.

    ·Letter from [Mr B], Former National President, FDFM Australia, dated [in] Setepmber 2014, with photogrpahs of the protest attached noting the first and second named applicants are members, and belong to the sub chapter in [City 1]. The letter notes the applicant and his family attended the FDFM organised protest rally on 17 August 2014 in Sydney vocally protesting the inhumane acts of the illegal regime, and he notes the following:

    On Saturday 23rd August 2014 I met [the first named applicant] in Sydney to protest against Mr. Frank Bainimarama’s visit. He has been known by the Regime\Security Forces that he and his family took part in the protest against Mr. Frank Bainimarama’s visit.

    …

    He and his family have endured great pain following the daeth of his father in 2011. His father [Mr C] was a [Position 1] for [Mr D] who was an Army officer the the Fiji military until he defected in 2011 and now lives in exile in the kingdom of Tonga.  [Mr D] was part of Bainimarama’s elite group of officers and was part of the 2006 coup d'état. [Mr C] was a [Position 1] and worked for [Mr D]’s [company] at the time he defected. Following this event [Mr C] was taken to the army barracks and interogated by military personell and as anadotal suggests no interogation is conducted without being abused both physically and mentally, [Mr C] would have suffered the same fate. Shortly after this ordeal he passed away.

    The unfolding of these events has placed [the first named applicant] and his family in a predicament of absolute uncertainty and distrust in the system, the fear that they have had to live in because of their name association alone has taken away their basic human right of living in a safe envronment. He fears for the safety of he and his young family should he have stayed in Fiji and should he have to return. Hi father was earning an honest living for his family and was robbed of having the opportunity of watching his grandchildren grow up.

    ·Letter submitted by the applicant from [Mr E], ousted Minister of State Agriculture, dated [in] December 2013.

    ·Letter from [Mr E] received [in] August 2014, providing a brief analysis of the political situation in Fiji, to show why persons of interest to the regime such as the applicant need to stay away from Fiji.

    ·Submissions from the applicant’s representative received 1 September 2023, as outlined below:

    oEvidence the applicant is [office bearer] of the [City 1] Branch of SODELPA, and met with Fijian leaders of SODELPA when they visited Australia, including minutes and photographic evidence of a meeting with high ranking Fijian SODELPA officials.

    oEvidence of the applicants’ involvement in the 2019 protest when former Prime Minister Frank Bainimarama visited Australia.

    oPhotographic evidence of the applicant at the protest held on 24 August 2014.

    oTranscript and recording on the [social media] account of [Mr B] from 2019 of the second named applicant accusing the son of Former Prime Minister Bainimarama, Meli Bainimarama, of assaulting his former partner, her [relative], and that her [relative], who is in Australia, is scared of returning to Fiji because of what happened.

    oArticle dated 23 August 2023 by fijities.com, “Coup threat to Fiji”, which notes that the biggest danger to Fiji’s security and stability is the possibility of another coup when the circumstances are right. It quotes University of Canterbury director and Fijian academic, Steven Ratuva, noting that elections don’t solve problems and in the case of Fiji, coups start after the elections.

    ·Department of Foreign Affairs and Trade (DFAT) Country Information Report Fiji, 20 May 2022 (referred to as the DFAT Report).

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

19. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Are the applicants credible as to their country of citizenship?

20. On the basis of the applicants’ identity documents and evidence provided at hearing, the Tribunal accepts that the applicants are nationals of Fiji. Therefore, for the purposes of s 36(2)(a) the Tribunal accepts that Fiji is the country of nationality and for the purposes of s 36(2)(aa) the Tribunal accepts that Fiji is the receiving country.

    Do they have a right to enter and reside in any other country?

21. There is no evidence before the Tribunal that the applicants currently have a right to enter and reside in any other country in terms of s 36(3)-(5) of the Act, other than Fiji.

    The applicants’ claims

    Protection visa application

22. The applicant claimed he left Fiji because his life was in danger as the army physically and verbally harmed him. He fears that Bainimarama and the military would harm him if he returned and take him to the army camp for interrogation and torture as he was a Soqosoqo Duavata ni Lewenivanua (SDL) party supporter and driver during Mr Qarase’s campaign and elections as well as during Mr Qarase’s court case, and he physically harmed one of the military intelligence officers on the day that Mr Qarase was jailed. He claimed that he would be harmed on return as during the Lau Provincial meeting he voiced his opinion that the Bainimarama government should be jailed because they were running illegally, so they could pay for killing innocent people.

    Interview with the delegate held on 10 June 2014

23. The Tribunal has listened to a recording of the hearing and the outline below summarised by the previous Tribunal member accurately records the evidence provided at the interview with the delegate.

24. The applicant stated that he was a driver in Fiji. His father owned the vehicle and the applicant drove it. He looked for jobs. He usually helped people who were shopping at the supermarket.

25. He said he had supported the SDL since September 2000 when he was driving his father’s vehicle. The SDL was formed after George Speight was apprehended. He supported the SDL because of what had happened [in] 2000, his birthday. He was on his way to collect a passenger opposite [a] school, when he was stopped by a group of six Speight supporters who forced him to take them shopping. He agreed to transport them because one of them grabbed him by the neck and told the others to get into the [vehicle].

26. When the Speight supporters were getting into the vehicle in [Town 1], soldiers arrived. The Speight supporters were not armed. The soldiers took them to the police station, eight miles from Suva. They were held from 7.30am until about midnight. He was questioned, hit and punched by the soldiers. He explained he was a driver and not connected with the others. They did not believe him and said he was part of the group.

27. They were all kept together at the station. He wanted to be separated but he was not. He was just blended in as a George Speight supporter. He did not know why he was released, probably because his knees were injured. He had been pushed onto the fence when he was arrested. He had been mistreated at the station. He did not go to the hospital. His mother said they would try to fix him up at home. Three of them were released at the same time. There were no conditions on his release. He was told that he would be killed if they saw him again at the station.

28. After this incident he became a supporter of the SDL because the Prime Minister at the time was well known in the area because he was brought up there. He was a supporter of the SDL, not a member. Whenever there were SDL functions, his father would tell him to pick up the old people to take them to the meetings. Sometimes he stayed and listened to the meetings.

29. He had also been mistreated by the army on 3 August 2012. He was still involved with the SDL until he left Fiji. During the trial of Mr Qarase, when he was driving for the government, he was seen in the vicinity of the SDL supporters. He did not work that day. He went to listen to the court case. It was the day that the judgment was to be delivered. One of the soldiers there recognised him from the incident in 2000. He swore at him and said to him that if he couldn’t stand the heat he should leave or they would take him back to the camp. The applicant said back to him to forget the past. The soldier threw a punch at the applicant. The applicant retaliated and there was a scuffle and they fought, but then the applicant said it was enough. He was worried about the other soldiers in the truck. The applicant left straight away. After that he did not have any more trouble with the soldier; he kept his distance.

30. He had been mistreated by the army in 2000 and 2012 and not on any other occasions. He used to drive past the army training group in his [vehicle]. He could not say anything because he had to go past to pick up a fare and they would warn him to be careful. He did not know what they were warning him about.

31. The applicant’s father was a supporter of the SDL. At one stage there were many differences between Bainimarama and [Mr A], the leader of the SDL. [Mr A]’s son [Mr D] had a boat. The applicant’s father was the [Position 1] of that boat.

32. His father was also taken to the camp. His father was not involved in [Mr A]’s son’s escape from Fiji, he was just the [Position 1] of his boat. His father was probably taken to the camp due to the differences between [Mr D] and Bainimarama. His father was taken an hour before the ship sailed. When he left the wharf, he called the applicant and said to go and look after the family. The applicant asked what happened but his father did not tell him. The applicant’s father passed away on [date] July 2009. He was taken to the camp four days before he passed away. The cause of his father’s death was stated to be asthma. He had high blood pressure. He asked them to return his body and they said no.

1. Asked whether this association between the applicant’s father and [Mr A] put the applicant at risk, the applicant stated yes because he had been taken in 2000 and his father was taken and his father was closely linked with [Mr D] and the applicant would be next.

2. The applicant stated that they had never harmed him but every time they met he was verbally warned. He said he had not mentioned the link between his father and [Mr A] in the protection visa application because he did not think about it.

3. The applicant stated that he still supported the SDL Party. He was against the current military government. The SDL was now called by another name, SODELPA, because the interim government did not accept the names of old parties.

4. He claimed that in October 2013, he had suggested to the members of the Lau provincial council to make a statement not to support the current government. During the meeting, held in Suva, only the representative speaks. The applicant made the suggestion and it was put forward at the meeting.

5. The delegate noted that the applicant had not applied for a visa to Australia until November 2013 and his stable life might indicate that he did not have any fear of harm in Fiji. The applicant stated he had applied to come to Australia many times before but it was not approved. He had applied in 2011 and 2012, but only his wife was permitted to come.

6. The delegate noted that the applicant had waited for a month before leaving Fiji after his visa had been granted. He said his wife’s leave was delayed until December. His wife was a [Occupation 1] for [Employer 1]. If she had left before her leave was granted she would not be entitled to the paid leave. They were held up for about 10 minutes while they were coming through the airport. If he returned to Fiji now, the applicant feared that they would fulfil their threats to harm him. He feared they would harm him because they had harmed him before.

7. The delegate asked why he had not been sacked from his government job if the military was so hostile. The applicant stated that his department was part of [Department 1] and then became part of [Department 2], under the military. Previously they had warned him, but when his department merged with [Department 2] in 2013, he was sacked.

8. The delegate noted that the applicant had previously stated that he had quit, not that he was sacked. The applicant stated he left because of his treatment. He was made to work odd hours, he had to leave home early and they cut off his subsistence allowance. Not all [Department 1] employees were subject to a deterioration in pay and conditions and he did not know why he was singled out.

   Applicant’s statutory declaration dated 15 August 2014

9. On 15 August 2014, the applicant submitted to the Tribunal a statutory declaration reiterating his claims and responding to matters raised in the delegate’s decision. He submitted that he has now become involved with the SDL and attends meetings every Saturday and has not yet become involved in the FDFM. He noted that he has not done any other political things.

   Representative’s submission dated 28 May 2015

10. On 28 May 2015, in a written submission, the applicant’s representative referred to the applicant’s political activities with SODELPA and his attendance at a protest in 2014 when former Prime Minister Bainimarama came to Australia, noting he was photographed with well known anti-Bainimarama activists and would be associated with them. She also referred to the 2000 incident and the applicant’s attendance at the trial of Laisenai Qarase in 2012, his participation in transporting SDL supporters to meetings and his father’s association with [Mr D], and claimed that because of these activities, he was recognisable by the military.

11. She also referred to and attached country information as to the difficulties faced by those who oppose the Bainimarama regime and a statutory declaration from the applicant noting the submission has been read to him and accurately and completely represents his claims for protection.

    Evidence at the Tribunal’s hearing (differently constituted) held on 4 June 2015

12. The Tribunal has listened to a recording of the hearing and the outline below summarised by the previous member accurately records the evidence provided at the hearing.

13. The Tribunal confirmed with the applicants that all members of the family unit were relying on the first applicant’s claims for protection. In respect of the sixth named applicant, it was clarified that she was born prior to the delegate’s decision, however, as at the date of the first hearing, a decision in respect of her application had not been made by a delegate of the Minister. The representative undertook to follow this up following the hearing.

14. The Tribunal took the following evidence from the applicant. He has not previously travelled to Australia, whereas his wife has on two occasions. He lived in Suva his entire life, in the same house. He worked for [Department 1], as a [Occupation 2] and then as a driver. He stopped working in December 2013 when he left Fiji for Australia. At the time of his departure, he took leave without pay, and resigned in January 2014, after coming to Australia.

15. He changed his job from being a [Occupation 2] to a driver in 2009. He worked for about 17 years as a [Occupation 2]. He made this change because there was no driver in the department so he decided to go for that post. He was the oldest sibling and his mum got sick, so he stopped being a [Occupation 2] to be available to look after her. He was also working as a driver at the same time as he was a [Occupation 2], in the family owned van, which he drove as a taxi for the family. The Tribunal asked why he didn’t mention his job with [Department 1] in his application form. He said he completely forgot. When asked how he could forget something like that, he said the van belongs to the family and he had been driving the van when he [not working as an Occupation 2]. He filled out the forms himself.

16. The applicant was asked if he had any involvement in politics before he left Fiji. He said he was involved with the former Prime Minister’s government, driving people to and fro. He did that on his breaks from [Occupation 2], at his father’s request. His father was a Qarase supporter. He would drive members and supporters of Qarase to meetings. He can’t remember the years he did this. He was not actively involved in the meetings, but sometimes stayed and listened. The applicant confirmed that he was never a member of the SDL party, just a supporter.

17. The applicant came to Australia in December 2013. He confirmed that he did not vote in the September 2014 elections because the ballot paper was not sent.

18. When asked why he came to Australia he said he had thought about coming long before that but because of his father he did not. The Tribunal asked why, given his father passed away in 2011, he didn’t come until December 2013. He explained that by the time he applied it was taking a year or so to provide his passport. When the Tribunal pointed out the passport was issued in August 2012, he explained he was trying to save some money because he didn’t want to come by himself.

19. The Tribunal asked why he didn’t want to return to Fiji. He said if he goes now, he fears that what happened in the past will happen again, or worse. When asked why he thinks it will happen again now, he said before, when he was hurt, he was just a driver. Since he has been here, he has been involved in SDL and FDFM and there is proof he has been involved in those things, so if he returns he will be persecuted or treated worse than before.

20. The Tribunal asked the applicant about his activities in Australia with SDL. He said they hold meetings and fundraising to support the party in Fiji. He does whatever he is told to do, bringing food and refreshments to the meetings. He attends the meetings and serves the food. Before the Fiji election, the meetings were sometimes weekly and fortnightly and sometimes monthly. He started going not long after he arrived. He began attending because of his involvement in Fiji with SDL. When he arrived in Australia he found out there was a group in [City 1] and decided to continue. He strongly supported them because he could not agree with the military government in Fiji. He is now an SDL member, he has the receipt at home. The Tribunal asked him why, given he didn’t join in Fiji, he decided to join the party in Australia. He explained that in Fiji his father was a member of the SDL, so he is following in his father’s footsteps.

21. The applicant was aware that the party is now known as SODELPA. When asked if he knows why it had to change its name, he said the group in [City 1] told him it was because they wanted to change the party into an English name rather than a Fijian. When asked what SODELPA’s political agenda is, he responded that they want to restore the standing of indigenous Fijians. He knew the name of the leader in Fiji, Teimumu Kepa.

22. When asked why he is afraid of returning as a SODELPA party member, the applicant said that at the protest they had in Australia, there were bodyguards from Fiji who saw him and took photos, and that’s why he’s afraid to return.

23. When asked who organised the protest, the applicant said he was told to come by the FDFM. He was asked if the FDFM is linked with SODELPA in [City 1]. He said when the FDFM want something to be done they contact SODELPA in [City 1] and discuss what they want. When asked if they hold their meetings at the same time, he said FDFM do not have separate meetings in [City 1] yet. He referred to going to Canberra once to have a combined meeting. He did not indicate that he had joined FDFM. He said at times FDFM send reports of what they are doing to SODELPA in [City 1]. The applicant indicated he paid $42 to be a member, and understood that it was a combined subscription for FDFM. He joined to strengthen his opposition to the military government. He was told to join the FDFM as well to strengthen the two organisations opposition to the government.

24. When asked by the Tribunal if he had already applied for a protection visa at the time that he joined, he said attended a meeting once before he applied. The Tribunal asked how he found out about applying for a protection visa. He said he was asking around because he didn’t want to return, and a guy who was a member of the SDL told him about applying for protection.

25. The Tribunal asked the applicant if he joined SDL to strengthen his claims for a protection visa. He said he didn’t. He joined them because he hated the military government and it hurt him and it hurt his father.

26. The Tribunal asked the applicant about the photos he submitted. He said a lady was taking the photos. She is the wife of the FDFM president, [Mr B]. He obtained copies from the people who run the SDL in [City 1]. The Tribunal asked if he knew if the photos were published in the paper or on a website. He said he saw the photos in [Publication 1] a few days after the meeting, but he has no copies of this. He said his friend saw the photo on  [Media 1]. The applicant then clarified that it was not [Publication 1], but [Media 1] he meant. The friend, in Fiji, rang him when he saw him on [Media 1]. The applicant did not see that broadcast, so he does not know for sure whether the photos were published.

27. The Tribunal asked the applicant why he participated in the rally in Sydney. He said it was because of what happened to him and to his father, and also the SDL told people to come for it.

28. The Tribunal asked the applicant about his connection with [Mr B]. He said he first came to know him when he joined SDL and he went to his residence in Canberra. [Mr B] came to [City 1] and the applicant had a talk with him early last year. The Tribunal asked if this was before the interview with the delegate. He said it was. When asked why he didn’t mention it with the delegate, he said it was because he had only met him once at the SDL meeting. When asked when they went to his house, the applicant said it was after the Sydney protest. When asked by the Tribunal why he would go to Canberra from Sydney, the applicant said he may be confused, it was another day. He has forgotten.

29. The applicant said he has met [Mr B] 5 or 6 times. When asked why he is worried about returning to Fiji on this basis, he said [Mr B] is well known in Fiji as the man maintaining the fight against Bainimarama and his association with him contributes to his fear of being persecuted. The Tribunal put to the applicant that [Mr B] would be associated with many people in Australia, most of the people in the rally had some connection with him too. The applicant said Bainimarama’s brother was there and saw the applicant because the applicant was a block away. When asked wouldn’t he have been in the hall, the applicant said they were standing outside. The applicant confirmed his wife was present there also.

30. The Tribunal asked the applicant, why given that there had been valid elections, he would be of interest to the authorities now. He said one of his friends told him an MP was suspended just weeks ago because of what he said about the speaker. When asked who this was, he responded, Ratu Nanqama. The Tribunal asked how this affects his fear of returning given that he is not an MP. The applicant said that before he came to Australia there was a provincial meeting for his province and they had a motion that Bainimarama should be divorced from the government. He said he put forward the motion, because of what had happened to him and his father. The provincial council allowed them to bring motions and then they take the motion to the Council of Chiefs – which would bring it to the government.

31. The Tribunal asked the applicant when he suggested this motion at the Lau Provincial Council meeting. He said it was in 2012 but is not sure of the month. The Tribunal pointed out previously he said this was in 2013.

32. The Tribunal asked the applicant when the Council of Chiefs was disbanded. He said he was not sure. When the Tribunal put to him that it was March 2012, he agreed. It asked him why the representative would put forward his suggestion. He said whatever you dislike you can bring it up to the provincial council to raise before the council of chiefs. He was the mover of the motion but lots of people supported it. The representative took it up with the council of chiefs, but he is not sure whether it was taken to the Council of Chiefs.

33. The Tribunal asked the applicant how anyone would know that he made that suggestion. He said his name was mentioned when the provincial council asked who brought it up. The applicant agreed that this must have happened before the Council of Chiefs disbanded in March 2012. The Tribunal noted that he then stayed in Fiji for about 2 years in Fiji and nothing adverse happened in that time. The applicant agreed, explaining at that time they had their passports but not the children. At the same time he was trying to find a way to leave.

34. The Tribunal asked the applicant to tell it about the incident when he was taken and hurt by the military. In 2000 he was driving the family [vehicle] when the soldiers stopped him. He had a group of Mr Speight’s supporters in the [vehicle] and the soldiers thought that the applicant was with them. They pulled him out of the [vehicle] with the other guys. They took them all in the army truck and at the station threw him out of the truck, kicking them. He sustained a knee injury and scars on his face and was detained for hours, before being released and walking home.

35. He didn’t have any more trouble after that but did get threats. They said if they found him again near there they would put a stick up his arse. They would make this threat when he was operating the [vehicle], as he would go close to the training centre. He knows their faces and they know him.

36. The Tribunal pointed out that he stayed in the same house and the same area for another 13 years without anything bad happening. The Tribunal noted that a lot of people were arrested around the time of the 2000 coup, but in the end only a few were convicted. Since then there has been another coup and an election and a lot has changed since then so what is the chance of harm of this basis if he returns now.

37. The applicant said that when [Department 1] merged with [Department 2], [Department 2] learned that he was assaulted and the injuries were caused. He used to drive the [vehicle] to the army barracks in Suva, a lot of the jobs that he did he had to drive to the barracks and some of the soldiers recognised him from then.

38. The applicant confirmed that [Department 1] merged with [Department 2] around 2009 or 2010. The Tribunal put to the applicant he told the delegate that he changed his job because he didn’t see enough of his family as a [Occupation 2]. He said he worked early mornings and late nights and he was the only driver. He also said they merged just before he left Australia and his pay and conditions deteriorated. The applicant confirmed that he gave this evidence. The Tribunal put to him that now he is saying they merged in 2009 or 2010 when he was driving for them. It pointed out that he gave evidence earlier in the hearing that he took leave from his job when he came to Australia and quit later from Australia. It put to him that this suggests he didn’t have a problem with his job.

39. The applicant clarified that he saw the soldiers all the time, even when he was driving the family van past the training centre, and they were continuously threating him, even before he started driving to the barracks for [Department 1] when they merged. The Tribunal confirmed with the applicant that in those 13 years there were no other consequences apart from the threats? He agreed. They threatened him by saying ‘be careful that you don’t come back inside.’ The Tribunal put to him that it seems strange that they would continue to threaten him over 13 years but not do anything about it. He said he is afraid because he hadn’t done anything wrong and there was no reason to take him to the camp.

40. The Tribunal asked the applicant about his father’s death. He confirmed that he passed away in 2011. He was just about to leave with the boat as he was the [Position 1] and they took his father for questioning. That day they took him to the camp and he rang the family to tell them what had happened and that was the last time they heard his voice. He didn’t tell them what happened he said he would tell them when he got home. Three days later the call came to say that he was dead. The Tribunal put to the applicant that the cause of death did not appear to be related to injuries suffered. The applicant said his father suffered from respiratory problems.

41. After his father died the applicant looked for an option to leave Fiji. He applied for the passport and his and his wife were approved and the children were approved in July 2013. Then he applied for the visa. He wanted to leave after what had happened in 2000 but he had always supported his father and mother. He loved being a [Occupation 2] and wanted to be [promoted in that position]. His mother’s sickness pulled him back and he quit being a [Occupation 2] when his mother was sick. His mother died in 2009. He told his dad that he wanted to leave and dad was always asking him to stay because he was the only one who was close to them. He saw what happened to his father was similar to what had happened to him. They didn’t allow him to see his father’s body and so he did not know what happened at the camp. He applied to go to Australia not just by himself, he wanted his children to come with him also. That’s why they were delayed and the visa was approved in mid-2013.

42. The Tribunal asked the applicant about the incident with the soldier in 2012. He was walking to the court to listen what happened at the trial of Qarase. The guy who used to warn him was in an army truck there. He swore at him and the applicant swore back. He jumped out and they threw some punches against each other, he was stopped by some of his friends and he let him go. The Tribunal asked why they fought. He said it was because the applicant swore back. This occurred around August 2012. The Tribunal asked the applicant why there is a real chance he would be harmed for this reason now. He said he fears the same thing could happen again or worse, he’s worried about his family.

1. The Tribunal asked the applicant if there is anything else he would like to say. He said he doesn’t want to go back to Fiji. They might want to harm him, more than they already did, or more than his dad. He is afraid this time they’ll do it because of what he’s done here. He has a family and doesn’t know what will happen to them.

2. The second named applicant gave evidence regarding the involvement with groups in [City 1], that are anti-Bainimarama. They fear being harmed if they are returned because they have been photographed with the most wanted people associated with the anti-Bainimarama movement, including [Mr B] and SODELPA. They have also been part of the social networks; they send messages and are involved in [social media] and their pictures are there. She submitted that Fiji is small and people know you wherever they are and they are scared that they will be identified as long as they are there.

3. The Tribunal put to the second named applicant DFAT information suggests it is only high-profile people who are of interest to the government and ordinary members of SODELPA are not at risk. The second named applicant said in response, referring to a recent incident when Bainimarama threatened with violence a fellow parliamentarian, he can say anything and she is scared what could happen to them given what he has said and done even to high profile people. She also referred to the recent two year suspension of the speaker of the house who said something Bainimarama didn’t agree with.

4. The Tribunal asked her whether she believes that elections, widely recognised as free and fair, held have made a difference. It was put to her that the situation appears to have improved since then. In response, she said it would have improved if someone other than him was in power. She gave the example of a man who wrote a song after the election, he was taken by soldiers. Bainimarama is like Hitler, he negotiates with high people, he looks down on the people. People with grievances are still scared they might get harmed. When they come out of their country they say a lot of things that they cannot say there.

5. The second named applicant confirmed that they did not vote in the September 2014 elections because they were registered to vote in the Suva area so when they tried to vote it kept bouncing back. They asked one of the SODLELPA supporters to confirm they were in Australia. They tried to vote by faxing the form from [City 1] library but it bounced back.

6. The Tribunal asked the second named applicant about the Lau Provincial Council meeting. She stated that this is a meeting that only the men go to. She confirmed the meeting was in 2013 before they came, maybe three months before but she is not sure. It was a few months before they applied for the visas in September. That was the only meeting her husband went to.

7. The Tribunal asked the second named applicant why they applied for their visas for Australia. She said they came to Australia for a holiday. They decided to stay in January. They knew they were all here, and they had to apply here; they don’t want to apply there because if they voiced their opinion there it was a different story.

8. At the conclusion of the hearing, the representative made oral submissions addressing different perceptions about the situation in Fiji since the elections and the Fijian government’s desire to appear democratic.

   Submission from the applicant’s representative dated 8 July 2015

9. The applicant’s representative referred to the 2014 protest attended by the applicant and noted the photos of the applicant submitted show him attending the protest side by side with [Mr F], a close friend of the applicant and current [office bearer] of the SODELPA political party’s [City 1] NSW chapter, [Mr B], a prominent Fijian political activist opposed to Bainimarama, Kenneth Zinck, a known political opponent of Bainimarama, and Rajendra Chaudhry, also a long term figure of opposition and son of former Prime Minister Mahendra Chaudhry. It was submitted that the poses in the photos, particularly the applicant being embraced by [Mr B], imputes the applicant with a political opinion opposed to Bainimarama and aligns him and suggests a close relationship with the high profile political opponents in the photographs.

10. The representative reiterated previous submissions that the applicant’s appearance alongside such high profile individuals, together with his past history with the Fijian military, would tend to impute him with a political opinion opposed to Bainimarama and suggest a close relationship with those high profile political opponents of Bainimarama. The representative made further submissions about current circumstances in Fiji since the elections, and noted that the Public Order Amendment Decree 2012 remained in force, which gave police untempered power to use force to disperse meetings, or assemblies, and that the failure to repeal this decree suggests a lack of good faith on the part of the government, and indicates that the election has not resulted in a return to democracy or the rule of law in Fiji. In addition to further country information in support of these submissions, a statutory declaration from the second named applicant clarifying her evidence about the reasons why the family left Fiji was also submitted.

    Representative’s submission dated 30 August 2015

11. This includes an article from the [Publication 1] newspaper dated 30 August 2015 referring to a warning by former Prime Minister Bainimarama that Fijians living abroad who were plotting against the State will be tracked down and brought to justice.

    Tribunal hearing (differently constituted) held on 7 September 2015

12. The Tribunal (differently constituted) held another hearing upon reconstitution of the matter, as the previous member was no longer available to conclude the review. The Tribunal has listened to a recording of the hearing and the outline below summarised by the previous member accurately records the evidence provided at the hearing.

13. The Tribunal summarised the claims it understood the applicant to be making, and asked if there were any others he wanted to make. He did not indicate any new claims.

14. Regarding his employment with [Department 1], the applicant confirmed that his omission to mention his 22 years of government employment in his application was because he forgot. He worked for them from [year]. He applied for the position as a [Position 2]. His father also worked for the same department for 30 years, retiring in 2007 at the age of [age]. His father then [acted as Position 1 on] a boat owned by [Mr G]. None of the applicant’s other four siblings worked at [Department 1]. One brother is currently unemployed, another recently started work with [specified employer], another is a [Occupation 3] and the youngest is studying [Discipline 1] at university.

15. The applicant shifted from working [as an Occupation 2] to being a driver in 2009, because his mother was ill and he wanted to be closer to her and have a day job. She passed away in June 2009, and he shifted work several months beforehand. [Department 1] merged with [Department 2] in 2010 and he worked there until 2013; after that they parted again, when he came to Australia. When he started as a driver he was the only driver. He took directors and employees to meetings and did mail runs. His job didn’t change after [Department 2] took over. The only difference was that he was required to go to the barracks more often to get documents signed. Sometimes there were military personnel who recognised him and made comments to him such as “you better be careful”. One such officer was a man named [Mr H]; he made such comments to the applicant every time he saw him. The applicant was never harmed by this man or anyone, other than the incident in 2000 and the fight that broke out at the Qarase trial in 2012.

16. The Tribunal asked the applicant how his employment at [Department 1] ended. He said after he came to Australia he wrote them a letter in December 2013. Initially he asked for leave without pay for two months. He received no response. Then he wrote a resignation letter. This was around January 2014. The Tribunal put to the applicant that he said at the interview with the delegate he was sacked in December 2013. In response, he said he was told by someone on the phone that he was sacked and that is why he decided to write the resignation letter. He wrote this letter because he wanted a clean record regarding the end of his employment in case he needed a reference in future.

17. The Tribunal asked the applicant if he had any issues with his employment before leaving Fiji. He said everything was normal, except for a few issues such as pay cuts and overtime pay. He was not paid overtime in the last few years of his employment. When he complained, he was told he just had to put up with it. When he talked to other drivers they said they were paid for what they worked. The applicant believed he was being targeted because the director wanted to give his job to someone else, but that other person was sacked before the applicant left. He was sacked for stealing petrol. The applicant said ever since he took the job as a driver he was never paid properly.

18. Regarding his claim of bring a driver for SDL party members, the applicant confirmed he drove his family vehicle as a taxi. He did this on his days off from his other job as a [Occupation 2]. He did this from around 1998 or 1999 until they sold the van, before he became a driver for [Department 1]. He drove people to SDL meetings at private homes or at offices. He did this about 10 to 15 times in a year. He was not a member of the party, just a supporter. Sometimes he stayed and observed the proceedings. The applicant confirmed that his brothers also did this ferrying around of members. Only his father was a member of the party. He never insisted that the applicant or his brothers join up or encouraged them to do so.

19. The Tribunal asked the applicant about his involvement with the Lau Provincial Council. He said he belonged to this Council on the basis of where he is from. There are small representatives in Suva that feed back to the Council. He put forward his opinion to the representative to mention at the Provincial Council meeting that they were not in agreement with the government at that time. There were many others who held the same view. The Tribunal put to the applicant that he previously said he put this to the meeting in 2013 but the Great Council of Chiefs was disbanded in 2012. The applicant said that despite this, the meetings were still happening in 2013. The Tribunal put to the applicant that independent information indicates the Lau Provincial Council has long been known to have engaged in activities and held views in opposition to the Bainimarama government and had adverse interest from the regime. It put to him that this may suggest that such a motion is unlikely to bring attention to him specifically, even if his claim about his role in putting forward the motion was accepted. In response, the applicant said that he was just voicing his opinion and was also feeling the loss of his father at that time.

20. The Tribunal asked the applicant why he believes he would be harmed now because of this incident. He said it is possible someone from the meeting could expose him. He has no knowledge of anyone in particular who could do this, it is just a possibility that his identity could be revealed. Other than this one occasion, the applicant confirmed he voiced no other opinions in this forum.

21. Regarding the incident in 2000, the applicant said there were about 10 soldiers present when they brought them in. The applicant knew [Mr H]’s name from his tag. He is the only officer the applicant has seen since the 2000 incident again. He was also the one involved in the 2012 incident. The Tribunal put to the applicant that given he has lived at the same address and worked in the same department in the period between 2000 and 2013 and, apart from the incident in 2012, he had no other contact from any of these individuals, it would appear the chance he would face harm from them now is remote at best. The applicant said that since that incident he has lived in fear, and had no freedom of movement because he was always aware of what might happen to him.

22. The Tribunal discussed with the applicant his activities in Australia. He started attending SDL meetings two months after he arrived here. There is a close Fijian community in [City 1] and he started attending meetings. He attends meetings of the democratic movement, SDL and church meetings. At the first meeting he attended, there was a discussion about the visit of former PM Qarase. The applicant attends branch meetings of the SDL in [City 1]. They discuss the situation in Fiji and how they can help. The assistance provided is mostly financial support. The applicant’s role is as an ordinary member or supporter.

23. The Tribunal explained to the applicant that if he has engaged in conduct in Australia solely for the purposes of strengthening a refugee claim, the Tribunal is required to disregard any such conduct by him for the purposes of considering his claims under the refugee criterion. In response, the applicant explained that he was invited to attend these activities after he came here and he has done so because he supports what they are doing and what the party stands for and not just to strengthen his refugee claim. When asked to explain what the party stands for, he said it stands for the rights of individuals and freedom of speech. Under the current regime only one person rules. The Tribunal asked the applicant what the difference is between SODELPA and SDL. He said it is the same party. SODELPA is the English name for the party. He did not know when SODELPA formed. He knows SDL was formed when Qarese stood for election but he cannot recall the year. When asked if he knew any more about SODELPA’s policies, he said the main thing he knows is that they stand for individual rights and protection of land rights. Regarding the elections, he confirmed that their forms were rejected so they didn’t vote.

24. The Tribunal asked if he has voiced any opinions at the meetings he attends. He said he hasn’t in [City 1], only in Sydney, at the arrival of Bainimarama. He attended a rally in August 2014. He hasn’t attended any other rallies or events.

25. The Tribunal asked the applicant about FDFM and the difference between SODELPA and FDFM. He said he understands SODELPA comes under FDFM. When asked what the role and purpose of FDFM is, he said it is fighting for individual rights of indigenous Fijians and passing information to SODELPA.

100.   The Tribunal asked the applicant if he wished to say anything more about the situation in Fiji since the election. He said the information coming out of the country is not a true reflection of what is happening there. The leaders will say what they want people to hear but it is not all good.

101.   The Tribunal put to the applicant that it may find that he does not face a real chance of harm on the basis of the photo of him at the rally because there were many people there and he is not otherwise active or vocal so is unlikely to have a high profile to put him at risk. He said that photos were being taken by Bainimarama’s bodyguard that day and he was being very vocal. Since that day, Bainimarama has made a public statement that he will come after overseas Fijians who have expressed antigovernment views. The Tribunal asked the applicant if he has encouraged sedition or violence. He said he is afraid that they have photos of people at the rally and he can be identified.

102.   The Tribunal asked the applicant about his father’s arrest at the time of [Mr D]’s escape from Fiji. He confirmed that his father had been a [Position 1] of [Mr D]’s boat since 2008. He was not involved in taking [Mr D] out of Fiji. With regard to his father’s questioning, he doesn’t know any more about it, only that he was taken in for questioning. After he was released he called and said to the applicant to look after his brothers and that he will talk to him when he gets back, but he never came back. The cause of his death, according to the death certificate, was asthma. The applicant confirmed that his father had no knowledge of what was happening with [Mr D] at that time. He was a strong supporter of Qarase but other than that he was not politically active.

103.   The applicant confirmed that he decided to leave Fiji after his father’s death in 2011. He had always had an intention of coming overseas, but he stayed in Fiji for the sake of his parents. After his father died, he wanted to get away from the whole situation, the sorrow of his experiences to start a new life. The Tribunal put to him that given he waited over two years to depart the country, this does not appear to be consistent with him being fearful for his safety. In response he said he was struggling financially in this period and trying to save money for the applications and airfares. He could not consider coming alone, he needed to bring the whole family with him. He had never previously applied for a visa. His wife has travelled once or twice, but he cannot recall exactly when.

104.   At the request of the representative, the Tribunal asked the applicant if he wished to say anything more about the appointment of [Mr I] as Commander of [Department 2] when [Department 1] was merged with [Department 2]. The applicant said he had dealings with this individual when he was a driver. He had to take things to him for signature and [Mr I] would often swear at him and verbally abuse him. He is not a very nice person, having been imprisoned for murder at one stage. He was released from prison and given back his position as Commander of [Department 2]. After the review applicant left Fiji he heard he was transferred to the Ministry of Works and that is when he also heard [Department 1] was moved back away from [Department 2]. The representative submitted that this individual is clearly a powerful person and close to Bainimarama.

105.   The Tribunal also took evidence from the second named applicant. She confirmed that her main fear of return is because of their involvement with SODELPA and FDFM in Australia. She is afraid their involvement has become known in Fiji and they may be in danger because of it. When asked if she has been personally involved she confirmed she attends meetings and has been to the Canberra residence of the leader of FDFM, [Mr B]. She has voiced her opinions and fears about being identified at the meetings. She has posted material on [social media] indicating her support of SODEPLA. She is also in photos taken with members of SODELPA and visiting MPs.

106.   The second named applicant confirmed that she previously visited Australia for one month in December 2012. She came by herself to visit relatives here. Her husband did not come because he was waiting for the passports for the children. The Tribunal asked her why he would not have applied to come at this time if he was fearful for his life. She responded that he wanted to wait for the children’s passports to be issued.

107.   The Tribunal put to the first named applicant that his wife’s evidence about her visit to Australia in 2012 does not appear to be consistent with his evidence about the reason it took two and a half years for him to come to Australia after he formed his original plan. He told the Tribunal that they needed to save enough money. In response, the first named applicant agreed with his wife’s explanation that he preferred to travel with the children and it took time to save the money for that trip. He added that her relatives helped to pay for her to come over at that time and he did not want to be a burden to them.

108.   At the conclusion of the hearing, the applicants’ representative made oral submissions. In summary, she argued that there are two matters that cause the applicant to face risk upon return, which are the Law Provincial Council incident and the sur place claims, in particular his attendance at the 2014 rally, at which he was photographed. The other claims may cumulatively add to the risk he faces, but are generally submitted in support of why these two matters occurred. She argued, in relation to the s 91R(3) issue, that the background incidents, including the 2000 incident, the threats, the 2012 scuffle and the death of his father, were all impetus to the applicant engaging in the conduct he has engaged in since coming to Australia. He was angry with what they did to his father, and he went to the Council meeting with a very specific suggestion that Bainimarama be jailed. This, in combination with his appearance in the photo with prominent people, places him at risk. It is also claimed that he is a long-time friend of the president of SODELPA in [City 1].

·He did not subsequently see this soldier and there were no further repercussions from this incident prior to his departure.

·The incident occurred over 10 years ago.

·His behaviour in living at his home and working up until his departure and the delay in departure, in the manner described above, undermines his claim he departed in fear for this reason.

·He gave evidence at the recent hearing that he does not fear return and will not face difficulties under the current regime since the elections in December 2022 because of what happened to him, his activities or because of any association in Fiji.

·On the basis of the above country information as to the treatment of those who were in political opposition to the former regime and military. In particular, DFAT notes it is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022. DFAT notes that it is not aware of any reports of the RFMF pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.[39]

[39] Particularly see COISS, DFAT Cable 20230621135833, 3 August 2023.

183.   In making its finding and those below, the Tribunal has, as outlined above, considered but not accepted the applicant’s claims that a change in circumstances may readily be foreseen. It therefore does not accept that matters that occurred before his departure would be dug up, including this incident in 2012 as he will be questioned on return due to his political activities since his arrival in Australia.

184.   Therefore, on the evidence before it, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm now or in the reasonably foreseeable future or a real risk of significant harm on return to Fiji on the basis of this altercation with a soldier in 2012 in the manner claimed.

His father’s association with [Mr A], detention and questioning in 2011

185.   The applicant claims that he fears harm on return to Fiji due to his father’s association with [Mr A] and his son [Mr D]. He claims that after [Mr A] fled Fiji, his father was questioned by the military. He claims that while the official cause of death on his father’s death certificate, which was provided to the Tribunal, was “respiratory failure, severe bronchial asthma”, the applicant believes his father’s treatment by the military may have precipitated his early death.

186.   Information indicates that the applicant’s father died in July 2011 while he was serving as [Position 1] on a ship owned by [Company 1] and his father was [Position 1] of [Mr A]’s son’s boat. The Tribunal accepts his father may have been questioned by the military around the time that [Mr A] departed from Fiji. The Tribunal accepts that at that time the former regime was interested in [Mr A]’s departure from Fiji and that family members and associates of [Mr A] were subject to adverse attention and questioned around this time.[40]

[40]  Cabenatabua, L, “Mara probe continues”, Fiji Sun, 30 May 2011, and “Army chief travel ban lift considered”, New Zealand Press Association, 23 May 2011, The New Zealand Herald,  On the evidence before it, the Tribunal does not accept the applicant’s suspicion that the applicant’s father’s death was in fact caused by the military as this is based on suggestion.

188.   For the reasons that follow, the Tribunal is not satisfied that the applicant would face a real chance of serious harm were he to return to Fiji now or in the reasonably foreseeable future or a real risk of significant harm were he to return to Fiji on the basis of his father’s association with [Mr A] or his son [Mr D] in the manner claimed, and his father’s detention detention and questioning in 2011:

·The incident occurred over 12 years ago.

·His behaviour in living at his home and working up until his departure and the delay in departure, in the manner described above, undermines his claim he departed in fear for this reason.

·There is no evidence the Tribunal accepts that he attracted adverse attention from the authorities following the questioning and subsequent death by his father in 2011.

·He gave evidence at the recent hearing that he does not fear return and will not face difficulties under the current regime since the elections in December 2022 because of what happened to him, his activities or any association in Fiji.

·On the basis of the above country information as to the treatment of those who were in political opposition to the former regime and military. In particular, DFAT notes it is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022. DFAT notes that it is not aware of any reports of the RFMF pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.[41]

[41] Particularly see COISS, DFAT Cable 20230621135833, 3 August 2023.

189.   In making its finding and those below, the Tribunal has, as outlined above, considered but not accepted the applicant’s claims that a change in circumstances may readily be foreseen. It therefore does not accept that matters that occurred before his departure would be dug up, including his father’s relationship with [Mr A] and his son, his detention and questioning as the applicant will be questioned on return due to his political activities since his arrival in Australia.

190.   Therefore, on the evidence before it, the Tribunal is not satisfied that the applicant will face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm on return to Fiji for reasons relating to his father’s association with [Mr A] and his son, [Mr D], the departure of [Mr A] from Fiji in 2011 or the detention and questioning of his father in relation to this matter, or his father’s death in 2011.

Lau Provincial Council

191.   The applicant claims he participated in meetings of the Lau Provincial Council and, in or around September or October 2013, he put forward a motion to the Council critical of the Bainimarama regime, which was forwarded to the Great Council of Chiefs by the Council. While there are a number of inconsistencies, including independent information indicating the Council of Chiefs was disbanded in March 2012 and the applicant’s change in evidence claiming he may have done this in 2012 when this information was raised at the hearing in 2015, it accepts he may have been confused and therefore accepts that sometime in 2012 or 2013 he may have been among those who voiced opinions in this forum and put forward a motion. However, for the reasons that follow, it does not accept that his attendance at the Lau Provincial Council, putting forward a motion to the Council alone or with others, which was forwarded to the Great Council of Chiefs by the Council, would result in him facing a real chance of serious harm were he to return now or in the reasonably foreseeable future or a real risk of significant harm:

·The incident occurred over 10 years ago.

·His behaviour in living at his home and working up until his departure and the delay in departure, in the manner described above, undermines his claim he departed in fear for this reason.

·There is no evidence the Tribunal accepts that he attracted adverse attention from the authorities following this event in 2012 or 2013.

·He gave evidence at the recent hearing that he does not fear return and will not face difficulties under the current regime since the elections in December 2022 because of what happened to him, his activities or because of any association in Fiji.

·On the basis of the above country information as to the treatment of those who were in political opposition to the former regime and military. In particular, DFAT notes it is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022. DFAT notes that it is not aware of any reports of the RFMF pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.[42]

[42] Particularly see COISS, DFAT Cable 20230621135833, 3 August 2023.

192.   In making its finding and those below, the Tribunal has, as outlined above, considered but not accepted the applicant’s claims that a change in circumstances may readily be foreseen. It therefore does not accept that matters that occurred before his departure would be dug up, as he will be questioned on return due to his political activities since his arrival in Australia, including his involvement in putting forward a motion to the Great Council of Chiefs critical of the former regime and former Prime Minister Frank Bainimarama.

193.   Therefore, on the evidence before it, the Tribunal is not satisfied that the applicant will face a real chance of serious harm now or in the reasonably foreseeable future or a real risk of significant harm on return to Fiji for reasons relating to his activities with the Lau Provincial Council, including being involved, alone or with others, in putting motions from the Lau Council to the Great Council of Chiefs.

SUMMARY

194.   The Tribunal has considered whether the combination of each of the individual claims raised by the applicants would together create a real chance of them being subjected to serious harm in Fiji in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicants would face serious harm for these reasons if they returned in the reasonably foreseeable future. The Tribunal therefore is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).

195.   The Tribunal has considered whether the combination of each of the individual claims raised by the applicants would together create a real risk of them being subjected to significant harm on return to Fiji. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of any of the applicants being removed from Australia to Fiji, there is a real risk that any of them will suffer significant harm as defined in s 36(2A).

CONCLUSION

196.   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 under s 36(2)(a).

1. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that any of the applicants satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criteria in s 36(2).

   DECISION

199.   The Tribunal affirms the decision not to grant the applicants protection visas.

Gabrielle Cullen
Member

ATTACHMENT – 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). 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.

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.

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of 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) (‘the complementary protection criterion’).

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.

15 February 2023).

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