2000543 (Refugee)

2000543 (Refugee) [2020] AATA 777 (25 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2000543
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Nathan Goetz
DATE:25 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa
Statement made on 25 March 2020 at 10:29am.

CATCHWORDS
REFUGEE – protection visa – Fiji – involvement in the distribution of video footage showing police brutality – credibility concerns – flexible approach to the truth – criminal history – work history – residential arrangements – delay in applying for protection – omission of key incidents of harm in written application – ability to depart Fiji – entry and exit procedures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [age] years old male who was born in Fiji. The Tribunal is satisfied that the applicant is a citizen of Fiji who has no right to enter and reside in a third country. The applicant was granted a [work] visa on 19 September 2014 and, according to movement records, he arrived in Australia on this visa [in] September 2014. This visa was valid until 18 October 2014.
The [work] visa ceased on 19 October 2014 and the applicant became an unlawful non-citizen.
[In] July 2018 the applicant was arrested by NSW Police and charged with criminal offences. An Apprehended Violence Order was also made against the applicant. As a result of the arrest, it was discovered that the applicant was an unlawful-non citizen and he was granted a bridging visa until 16 July 2018 and was instructed to attend the Department office to regularise his migration status.
On 16 July 2018 the applicant attended the Department office and was granted a further bridging visa on the grounds that he would apply for a substantive visa. The bridging visa was valid until 30 July 2018. The applicant did not lodge a substantive visa and on 31 July 2018 the bridging visa ceased, with the applicant again becoming an unlawful non-citizen.
[In] August 2018 the applicant was again arrested by NSW Police and charged with further criminal offences.
On 20 August 2018 the applicant reported to [a] Police Station in accordance with his bail conditions. After being identified as an unlawful-non citizen, the applicant was detailed by NSW Police and held at the police station pending an interview with Department officers. Before the completion of the interview with Department officers, the applicant escaped.
[In] February 2019, the applicant was arrested by NSW police and entered criminal custody.
[In] May 2019 the applicant was sentenced to 1 year, 3 months and 28 days imprisonment with a non-parole period of 9 months and 28 days for the criminal offending.
On 7 August 2019, while serving the term of imprisonment, the applicant was granted a criminal detention Bridging visa which was valid until 30 November 2019.
On 1 December 2019 the applicant was released from criminal custody and taken into immigration detention, where he remains to date.
On 9 December 2019 the applicant applied for a Protection visa.
On 7 January 2020 the delegate refused to grant the Protection visa as the delegate was not satisfied that Australia owed the applicant protection obligations.
On 20 January 2020 the applicant applied to the Tribunal for a review of the refusal decision.
On 12 February 2020 the applicant appeared before the Tribunal to give evidence and present arguments. He was assisted by an interpreter in the Fijian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee or meets the criteria for complementary protection. The Tribunal also need to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criteria for complementary protection.
In both his written protection visa application form and again at the Tribunal hearing, the applicant declared that he arrived [in] October 2014, but also claimed that he was present in Australia on 10 October 2014 to celebrate Fiji Independence Day. Nothing turns on this, and the Tribunal is satisfied that this difference in date can be put down to the fact that the applicant no longer has possession of his Fijian passport, and was therefore unable to recall precisely when he entered into Australia. For the sake of completeness, the Tribunal prefers the movement record which indicates that the applicant arrived in Australia [in] September 2014.
Online protection visa application form
The applicant completed the online protection visa application form with the assistance of a person named [Mr A]. He told the Tribunal that [Mr A] was a fellow detainee. [Mr A] asked the questions in the form and another detainee, who spoke Fijian, translated the questions to the applicant. The applicant responded in Fijian which was translated by the Fijian speaking detainee, and [Mr A] typed the answers in English.
In the online protection form, the applicant wrote that he had no members of the same family unit who were included in the application, but did note that he had one brother named [Mr B] who lived in Australia and he was in contact with this brother.
The applicant was asked to provide his residential addresses for the past 20 years. He wrote that he lived in [Village 1], [Town 1], in [Province 1] in Fiji [from] October 1995 [to] October 2014.
He wrote that he was not currently employed, had never been employed and indicated that he was supported by family during his unemployment.
He wrote that he experienced harm in Fiji and claimed that:
‘If I will return to Fiji I will be persecution, torture, punishment and will be thrown to prison for long time and I fear of my life and will be unable and unwilling to avail myself to my return to Fiji. There is a real risk I will suffer significant harm and do meet criteria of Australia’s protection obligations under s.36(2) of the Act.’
He did not seek help within Fiji because ‘Since Fiji Police and Military is looking for me because I am a witness in one of their cruel beating to civilian and officers involve can’t hide their convictions because I posted their illegal activity over video’.
The applicant did not move, or try to move to another part of Fiji, but ‘I did hide from Fiji authorities and flew to Australia to save my self’. If he was returned to Fiji, he believed that ‘I will be persecution, torture, punishment and will be thrown to prison for long time and I am fear of my life and I will be unable and unwilling to avail myself to my return to Fiji. There is a real risk I will suffer significant harm.’ He did not think that authorities in Fiji could protect him because ‘Fiji’s Police Force and Military is after me’. He did not think he would be able to relocate within Fiji so he would not be harmed.
He was asked whether he had been convicted of any offence in any country (including any conviction which is now removed from official records, and the applicant responded ‘No.’
The applicant declared in the online protection visa application form that he read and understood the information provided, and that he had provided complete and correct information in every detail.
Written statement
The applicant told the Tribunal that he completed the written statement with the assistance of [Mr A]. The applicant told [Mr A] what he wanted to say, and [Mr A] wrote it down. The applicant told the Tribunal that he prepared this statement in response to the Department request to provide further information.
The written statement, which was dated 24 December 2019, detailed that the applicant was playing [a sport] at [Town 2] representing his village team. He went to play [sport] on the day the incident happened and after the [game] he and the team went to a place to thank the elders of the village. While he at a community hall, his cousin (a police officer who was on duty at the time) came to see the team. His cousin showed a video of the incident where his cousin and others had caught prisoners and were torturing them. The cousin was making fun of the video while all the boys were watching it. The applicant wrote that he felt sorry for the prisoners and downloaded the video on his phone.
When the applicant got back to his village the next morning, he showed the video to his family and friends and sent it around, which meant that the video ‘went viral’. He wrote that people were putting it on [Social Media 1], and also on [Social Media 2]. When the military and the police saw the footage, they started to investigate how it was leaked. The applicant wrote that his cousin and the police came to the village and started asking if he knew about the video and one of the boys mentioned the applicant’s name and that he had downloaded the video on his phone and was showing it around to family and friends. Consequently, the applicant was the suspect and the police started to come after him. The applicant wrote that he was scared because the authorities were really angry at him. The authorities searched for the applicant ‘day and night.’ The applicant could not hide because Fiji is a small island, and it was pointless for him to move to another part of an island that is so small.
The applicant wrote that the nature of the threat against him, and by extension his family, means that he fears physical harm because the military and police are intrinsic to life for most Fijians. He wrote that his family and village people had a talk to the head of the village who had a connection with [a sports organisation]. The applicant was told to leave Fiji if he wanted to live. The applicant’s cousin who is in the police force told the applicant’s father and mother that if the applicant gave evidence against the police and military he would be dead. The applicant left Fiji with the help of his cousin.
The applicant wrote that the information he has poses a risk to those involved in the video, and because the applicant’s identity is not a secret, many people in Fiji would have no hesitation endangering his life. He noted that he had faced threats before, but Fiji is small and retribution for the exposure of illegal activity would be swift, and that he had no real or practical way of protecting himself.
Attached to the written statement was an Exhibit List containing the following documents:
·‘[News article]’, [source], [date], which the applicant identifies as containing the footage that he posted on [Social Media 1] that has since ‘gone viral’. This report relates to the beating by Fijian police of [Mr C], who had escaped from prison and was recaptured.
·‘[News article]’, [source], [date], reporting on the same incident.
·‘[News article]’, [source], [date], reporting on [a] Fijian [high ranking official] indicating that he would support police officers or anyone else who might be named in the investigation.
·‘[News article], [source], [date], reporting on police officers who were accused of beating [Mr C] being recruited by the Fijian military.
·‘[News article]’, [source], [date], reporting on the resignation of the Fijian police commissioner.
·‘[News article’. [source], [date], reporting alleged brutality by Fijian authorities which resulted in the death of a man in custody named [Mr D].
·‘[News article]’, [source], [date], reporting on the then-police commissioner calling on the police internal affairs department to investigate the death in custody of [Mr D].
·‘[News article]’, [source], [date], reporting on Ben Groenewald resignation which was ‘indirectly related to a case of alleged brutality.
·‘[News article]’, [source], [date], reporting on the Fijian Land Force Commander of the Fijian Military’s appointment as the new police commissioner.
·‘[News article]’, [source], [date], reporting on the resignation of former police chief of investigations.
·‘[News article]’, [source], [date].
·‘[Article]’, [source], 2016, which reports on the case of [Mr C]. The summary provided in this report is a helpful synopsis:
“[Information deleted]”.
The Tribunal was interested in the current status of [Mr C’s] matter. According to a [dated] report by [reporter] from [source] “[News Article]”, [Mr C] was beaten so badly after his recapture that he had to have one of his [limbs] amputated. The matter was next listed for hearing [in] 2017.[1] The Tribunal was unable to find any further information about the current status of this matter.
[1] [Source deleted]
FINDINGS AND REASONS
The Tribunal has considered the relevant material on the department file, the oral evidence given by the applicant to the Tribunal, and the documents the applicant provided in support of his protection claims.
The Tribunal accepts that there are allegations of serious harm to [Mr C] at the hands of Fijian authorities and that the matter is ongoing. The Tribunal is also satisfied that the production of footage of the assault may be considered to be anti-government actions, although there is no independent evidence before the Tribunal to suggest that the Fijian authorities have adopted this attitude towards those involved in the production of the footage.
That being said, the Tribunal has come to the conclusion that the applicant is not a credible witness. The Tribunal is satisfied that the applicant has used the reporting of [Mr C’s] assault by Fijian officials as a means of fabricating claims for protection. The Tribunal has come to the conclusion that the applicant is not a witness of truth about his claims.
Accordingly, the Tribunal has concluded that the decision under review should be affirmed.
First, the applicant declared in his online protection visa application form that he had never been convicted of an offence in any country. At the hearing, the Tribunal asked the applicantto confirm that he had never been convicted of any offence as declared in the form. The applicant told the Tribunal he had not. The Tribunal asked the applicant to clarify again that he had no criminal history and the applicant told the Tribunal that he did not. The information before the Tribunal indicated that this was not true. In the protection visa delegate decision, the delegate noted that the applicant was sentenced [in] May 2019 to 1 year, 3 months and 28 days imprisonment for criminal offences. The Tribunal also considered another delegate decision made [in] December 2019 concerning the applicant’s bridging visa application, which detailed his migration history and noted the applicant had gone from criminal custody to immigration detention [in] December 2019.
Utilising s.424AA of the Act, the Tribunal put to the applicant its concerns that he was not a truthful witness. To the Tribunal’s way of thinking, it was incredulous that the applicant, who had provided the delegate decision which detailed his imprisonment, would declare in his protection visa form that he had no criminal history, and repeat this to the Tribunal, unless he was a person who had a flexible approach to the truth and thought that by withholding his criminal history from both the delegate and the Tribunal, he may achieve a more favourable migration outcome. The applicant’s explanation was to blame the person who assisted him completing the protection visa form. He told the Tribunal that he was told that the question about the criminal history related to whether he had been convicted of any offence in Fiji, and not Australia.
The Tribunal is not persuaded that this is the case. The form makes it clear that it relates to criminal convictions in any country and the applicant’s earlier evidence to the Tribunal was that the questions were asked in Fijian, and the applicant’s responses were translated into English. Further, when the Tribunal asked the applicant about his criminal history, he did not seek to clarify whether the Tribunal meant in Fiji, Australia or anywhere else. The Tribunal’s question was open about whether the applicant had been convicted of any criminal offence. The applicant said he had not. The Tribunal views the applicant’s response denying his criminal history very seriously. The Tribunal is satisfied that it shows willingness by the applicant to provide oral evidence that is demonstrably untrue if he believes that he will obtain a favourable outcome from false evidence.

Second, the applicant declared in his online protection visa application form that he had never been employed. The protection visa application form is quite clear. It refers to the applicant’s employment history and asks whether the applicant had ever been employed. The applicant responded ‘No’ and indicated that he was able to be financially supported during unemployment by being ‘supported by family’. At the hearing, the applicant confirmed that he was never previously employed. Utilising s.424AA of the Act, the Tribunal put to the applicant that he had given inconsistent evidence about this previously to the Department, Specifically, the Tribunal put to the applicant that when he was interviewed by a delegate concerning his last bridging visa application, he told the delegate that he had worked for a week when he first arrived in Australia, and that in previous interviews concerning bridging visa applications on 14 July 2018, 20 August 2018 and 1 December 2019, he told those delegates that he had been working. The Tribunal indicated that this information suggested to the Tribunal that that applicant may not be a truthful witness.
In response to this information, the applicant indicated that when he arrived in Australia in 2014, he was told that he would need to arrange for payment of return fares to Fiji, and that his case worker told him that he was given two weeks to undertake work. This response does not adequately address the Tribunal’s concern about his truthfulness. The question was not whether the applicant has previously worked, but whether he was consistent in his evidence that he had not previously worked, either in Fiji or Australia. When the Tribunal asked why the applicant would tell the Tribunal one thing about his employment, and then tell other people something different, the applicant said it was a mistake. The Tribunal is not persuaded that the applicant could make a mistake about whether he was previously employed or not. It is a very basic question. In the Tribunal’s judgment, the change in the applicant’s evidence suggests that the applicant has a flexible approach to the truth. This means the Tribunal has real concerns playing weight on what the applicant claims has happened to him in the past, and what he claims will happen to him in the future.
Third, the applicant told the Tribunal that he realised in 2015 that he needed protection in Australia because he posted the video online. He told the Tribunal that he posted the video on [Social Media 1] in February 2014 while was in Fiji, but that he deleted this about two weeks after he arrived in Australia. He realised in 2015 that he could claim protection in Australia because the applicant told a friend of his what he had been through in Fiji and was advised that he could claim protection. The Tribunal queried why, had the applicant been aware that he could claim protection in 2015, he would delay doing so until 2019. The applicant said the he had lots of things on his mind and he did not know what to do. He later told the Tribunal that he was told that he would need to save money to apply to apply for protection. The Tribunal was very concerned about the applicant’s delay in seeking protection some four years after being advised that he could do so.
Given that the applicant’s claims are that he left Fiji because of what occurred there, and that these claims are not claims that have arisen subsequent to the applicant’s arrival in Australia, it is incredulous for the Tribunal to believe that the applicant would not have approached the Department to enquire about remaining in Australia soon after his arrival, or at the very least, after he was advised by his friend that he could claim protection. The Tribunal is not satisfied that the applicant had ‘other things on his mind’ and ‘not know what to do’ when he was armed with the information that he could claim protection in 2015. Remember, this applicant claims that he cannot return to Fiji because he will face serious or significant harm. The Tribunal is unable to accept that the applicant would then not take any action to apply for protection until four years later in 2019 if he was credible about his claims.
Fourth, the applicant told the Tribunal that the day he sent around the video, police officers attended his family home in Fiji. The applicant and his mother were present. His father was at work. Police came in and grabbed the applicant, hit him on the face, and told the applicant that he needed to come with the police. He was hit multiple times by two of the officers. This occurred while his mother was watching. The applicant told the Tribunal that he felt scared when this was happening and that this was not something that would easily be forgotten. He was taken to the police station and he was held there for five days. He was assaulted during his time in police custody. At times when he was sleeping, he was pulled and punched into a wall. The applicant told the Tribunal that he was released when he promised that he would not report the assaults, and this arrangement was facilitated through his parents. The Tribunal was concerned about this evidence, because the assaults by police and detention had never previously been raised by the applicant, either in his protection visa application form or statement. To the Tribunal’s way of thinking, such an important detail which would support the applicant’s claim that he faced a real risk of serious or significant harm if he returned to Fiji would have been raised earlier than at the Tribunal hearing.
The Tribunal put to the applicant that his failure to detail his previous detention or assaults from the police may suggest that he was fabricating his evidence and invited the applicant to comment on this. In response, the applicant told the Tribunal that he told the person who helped him complete the protection visa form ‘the things that he told him’ and that he was going to tell the Tribunal the whole story. The person who helped him complete the forms told him to put down ‘just this one’ (which the Tribunal understands to mean what was actually put down in the form and statement), and that when the applicant went to the Tribunal or spoke to immigration, he would be able to tell the whole story. The Tribunal is not persuaded that this can adequately explain why the assaults by police and detention are not mentioned in the protection visa application. The applicant’s statement is detailed when it describes the fact that the authorities were looking for the applicant ‘day and night…I could not hide anymore’. The statement mentions that the applicant’s cousin (who is a police officer) and other police came to the village, and ‘started to come after me’. It is incredulous to think that the applicant would leave out meaningful detail such as his assaults and detention from his statement if such things had actually occurred. In the Tribunal’s view, the reason that this detail was not included in the protection visa application was because the applicant fabricated this evidence because he thought it would make his claims more credible, and he was more likely to achieve a favourable migration outcome.
Fifth, the applicant’s evidence about his past residential history in Fiji was inconsistent. In his protection visa application form, the applicant wrote that his previous residential address was ‘[Village 1]’ in [Town 1], [Province 1]. He wrote that he lived there from October 1995 until October 2014 when he departed and came to Australia. At the Tribunal hearing, he initially told the Tribunal that he lived in [Village 2] which he said was right in the heart of [Town 1]. He told the Tribunal that he lived at that address since he was born until he left and came to Australia in October 2014. Later, the applicant told the Tribunal that he left that address after his release from police custody and went to hide at a friend’s house in [Village 3], which was a 7 hour drive away from [Town 1]. He went to live with that friend from June 2014 until he came to Australia.
The Tribunal put its concerns about the applicant’s inconsistent evidence about his residential arrangements to him for comment. The Tribunal noted to the applicant that he initially told the Tribunal that he lived his entire life in [Village 2], but this evidence later changed to living in another village 7 hours away from June 2014. The Tribunal contrasted this to the protection visa application form. All three addresses were inconsistent. The applicant’s response was that he told the person who assisted him with the protection visa application form must have put down the address of [Village 1] in error because that is where the applicant went to play rugby. When the Tribunal asked about the change in his oral evidence to the Tribunal about where he was living in Fiji prior to his departure to Australia, the applicant told the Tribunal that he had not understood the question.
The Tribunal has considered the applicant’s explanations for this inconsistent evidence but is not persuaded by those explanations. In the Tribunal’s view, it is not reasonable to believe that when the applicant was asked for his address in the protection visa application form, the person who assisted him to complete the form would nominate his address as [Village 1] unless the applicant told him that was his address. Further, when the applicant was asked for his previous addresses, it is unreasonable to believe that the applicant did not understand the question about his residential address in the protection visa application form. It is a very simple question. The concerns that the Tribunal has about this is compounded by the change in the oral evidence about the applicant’s residential address in Fiji. In the Tribunal’s view, the applicant would not have initially told the Tribunal that he lived in [Village 2] until he left Fiji, had he relocated as he claimed later at the hearing.
Sixth, the applicant provided inconsistent evidence about his family. In the course of the hearing the applicant told the Tribunal that the delay in seeking protection could also be explained by the fact that he did not have anyone able to tell him what to do. The Tribunal noted to the applicant that in his protection visa application form he had declared that he had a brother [Mr B] who was in Australia. The applicant told the Tribunal that this brother was not in Australia. His brother who was in Australia is named [Mr E]. He told the Tribunal that he came to Australia with this brother, not [Mr B]. The Tribunal was concerned by this evidence for a couple of reasons.
The first reason is that the applicant did not declare in his application form that he has a brother named [Mr E].
The second reason is that there is no reasonable explanation as to why the applicant would declare that his brother [Mr B] is in Australia, and provide his details in his protection visa application form, when that person is not in Australia. The Tribunal asked the applicant to explain why he had declared that [Mr B] was in Australia when he was not, and why he had not provided the details of the brother who was.
The applicant told the Tribunal that the person who assisted him with the protection visa application form must have put in the wrong information. The applicant told the Tribunal hat he provided the name of his mother, father, brothers and sisters on a piece of paper and provided this to the person assisting him. He told the Tribunal that he thought that this person must have put in the wrong information.
The Tribunal accepts as a general proposition that there may be errors contained in family constellations and other similar information on account of a person not completing the form themselves, or as a result of a person completing a form not having English as their first language. However, in the circumstances of this case, due to the other issues that the Tribunal has concerning the credibility of the applicant, the Tribunal does not consider the applicant’s explanation as to these errors to be persuasive. Instead, the Tribunal finds that the applicant has provided deliberately confusing evidence about his family in Australia because he believed that doing so would assist him to achieve a more favourable migration outcome.
The Tribunal is conscious that it has no information before it concerning either of the applicant’s brothers, so it cannot identify what benefit the applicant hoped to achieve from the confused information, but is satisfied nonetheless that the applicant would not have provided confused information if he did not see a benefit in doing so.
Seventh, the Tribunal has considerable difficulty believing that the applicant, who claims to be wanted by the Fijian authorities, would be able to leave Fiji. The Tribunal acknowledges that the applicant claims he was able to leave with the assistance of his cousin who was a police officer, and that he had a friend at the airport who was able to assist with his passage out of the country, but the Tribunal finds this highly unlikely given the information available about the entry and exist procedures in Fiji.
“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 alters from Customs if the passenger has outstanding tax debts).
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.”[2]
[2] DFAT Country Information Report – Fiji – 27 September 2017 at 5.32 and 5.33
The Tribunal put to the applicant its view that he would have difficulty leaving Fiji if his claims were true in light of this information. The applicant responded that his police officer cousin told him that he could leave Fiji before there were further investigations, so the applicant did not face any problems departing Fiji. The Tribunal is not persuaded by this explanation. According to the applicant’s claims, the Fiji authorities knew his name, were looking for him, had assaulted him, detained him and were continuing to harass him after his release from detention. It is not believable that he would be able to leave the country when he was clearly a person of interest to the authorities. The Tribunal is satisfied that the applicant did not depart Fiji because he was assisted by his police officer cousin or a friend at the airport. Instead, the Tribunal is satisfied that the applicant was able to depart Fiji because he was of no interest to the authorities.
CONCLUSION
The applicant claims that he cannot return to Fiji. He has been harmed in the past and he will be harmed in the future because he is associated with the distribution of the video footage showing the assault of [Mr C]. The applicant claimed at the hearing that he now has a daughter in Australia and if he returns to Fiji and something happens to him there, he will not be able to see her or support her.
When the Tribunal puts together all the concerns that it has with the above evidence as outlined, the Tribunal comes to the conclusion that the applicant is not a credible witness. The concerns that the Tribunal has both individually and cumulatively with the applicant’s credibility lead the Tribunal to the conclusion that the applicant has become aware of the [Mr C] case through reporting in the media, and used the reports of this case to fabricate his claims for protection. The Tribunal is not satisfied that the applicant had any involvement in the distribution of the video concerning the beating of [Mr C], that he was identified with the distribution of that video, that he was ever sought by the Fijian authorities because of the distribution of that video, that he was ever assaulted or harmed by Fijian authorities, that he left Fiji because of his alleged involvement in the distribution of the footage, that he has not returned to Fiji because he fears harm due to his alleged involvement in the distribution of that footage, or that he lodged a protection visa for reasons associated with Australia’s protection obligations.
The applicant is not a witness of truth and has fabricated his claims. The Tribunal is satisfied that the applicant is of no adverse interest to anyone in Fiji. The Tribunal is not satisfied that there is a real chance of serious harm to the applicant if he was to return to Fiji.
CONCLUSION
Refugee
For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
For the same reasons, namely that the Tribunal is not satisfied that the applicant is a credible witness, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm. Therefore, the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies 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 applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 777

25 March 2020

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