2001686 (Refugee)

2001686 (Refugee) [2022] AATA 5038 (14 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Alan Rigas (MARN: 9901651)
CASE NUMBER:  2001686
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:14 November 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 November 2022 at 3:16pm

CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – interrogated by police and military force – suspected of organising political assemblies – applicant’s request for decision to be made on papers – limited evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 46(2A), 411(1)(c), 499
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 dependants.

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 on 16 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old man who claims to be a citizen of the Republic of Fiji (Fiji).
He visited Australia a number of times between 1992 and 2006 and last arrived on a TR-676 Tourist short-stay visa in May 2009. He applied for a protection visa on 24 December 2018 that was found to be invalid under s 46(2A) on 21 January 2019. He applied for the protection visa that is the subject of this review on 25 January 2019.
Claims
In his protection visa application, the applicant made the following claims.
He fled Fiji due to political turmoil. He was interrogated by the police and military force regarding his [employment]. They believed that he was a leader for a branch in [Location 1] of Fiji. The police suspected that he was using [work equipment] for political assemblies. He denies those accusations. He claims that he and his family were threatened that they would be harmed. He feared for his and his family’s safety and fled the country to protect himself.
He opposes the government led by Prime Minister Bainimarama, who has held power since 2007 following his military coup. Although the present government was democratically elected in September 2015, those involved in the military coup still hold sway in government and little has changed since 2006.
The [firm] where he worked was frequently targeted by the authorities. He was taken into police custody and held in a cell without food.
He did not seek help in the country as there are no available avenues for assistance. He sought to leave Fiji as soon as practicable to protect himself. The police force is either under-resourced or corrupt and the Police Commissioner Sitiveni Qiliho is a former military commander involved in the 2006 coup. He fears that even if he were to request police assistance, he would not be afforded the protection he requires because of the military involvement in the police.
Given the small size of Fiji, there are no other areas he could move to. His whereabouts would have been detected.
He fears for his life given his political opinion and opposition to the current government and regime. The authorities knew where he worked and lived and he heard stories of other men who were tortured and killed. He fears it would happen to him.
The applicant provided a copy of the photo page of his passport with his application.
On 5 February 2019, the Department sent an acknowledgement letter advising the applicant that he could provide additional information relating to his claims via his ImmiAccount, mail or in person at the time of the collection of personal identifiers. The letter also advised that a decision could be made on his application without another opportunity to present further information.
The applicant provided his personal identifiers on 25 February 2019. No additional information was provided.
On 16 January 2020, a delegate for the Minister refused the applicant’s protection visa application.
The review application
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 30 January 2020.
On 4 October 2022, the Tribunal wrote to the applicant advising that ‘we have considered the material before us but we are unable to make a favourable decision on this information alone’. The Tribunal invited him to attend a hearing on 2 November 2022 to give evidence and present arguments relating to the issues arising in his case and to provide all documents that he intended to rely upon to support his case by 26 October 2022. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 26 October 2022, the applicant’s representative advised the Tribunal that the applicant would not attend the hearing and wished for a decision to be made on the papers.
On 31 October 2022, the Tribunal received written advice from the applicant dated 28 October 2022 confirming that he wished for a decision to be made on the papers. No additional information was provided.
The applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The applicant provided a copy of the delegate’s decision with his application for review. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
Based on the copy of the applicant’s passport in the Department’s file, the Tribunal finds that the applicant is a national of Fiji and assesses his claims accordingly.
The applicant was in Australia at the time of this decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has before it a brief and highly generalised claim. The applicant claims to oppose the government and to have fled Fiji in May 2009 because of political turmoil. He claims that he fears for his and his family’s safety because of his political opinion and that he experienced harm at the hands of the police. He claims he would not be afforded protection because of the military involvement in the police, and that the police force is either under-resourced or corrupt and the Police Commissioner was involved in the coup.
The applicant has not given a full account of the circumstances surrounding his claims and they are limited in nature. He has not provided any evidence supporting his claim about experiencing harm at the hands of police. He has not identified when or where this harm took place, nor the identity of the perpetrators. He did not provide specific information about his political views or examples to demonstrate how he expressed his professed opposition to the government, nor did he explain why he would be of interest to the police force or military. The applicant did not provide details of his family in Fiji nor whether members of his family have been harmed. The only information about his family relates to the names and addresses of his spouse and [cousins], who are all resident in Australia.
Section 5AAA of the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of the applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal on review does not have a responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist the applicant in establishing the claim. This is consistent with the well-settled proposition that it is for the applicant to make his or her own case.[1]
[1] Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The Tribunal’s hearing invitation made it clear to the applicant that there was insufficient evidence before the Tribunal to make a favourable decision. He was invited to provide all the documents he relied upon by 26 October 2022 and to give evidence in person. The applicant did not provide more information by 26 October 2022 and, at the time of this decision, the applicant has not provided more information.
The applicant consented to the Tribunal making a decision on the papers. The Tribunal has assessed the applicant’s claims on the evidence before it and with reference to the country information.
Country information
The DFAT Country Information Report Fiji says that ‘politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly...’[2] In regard to the 2006 coup d’état, the report says that ‘DFAT understands from in-country sources that the 2006 coup may be a sensitive topic, but is not aware of a related pattern of violence or discrimination’.[3] The Multinational Observer Group led by Australia judged both the 2014 and 2018 elections to be credible.[4]
[2] DFAT Country Information Report Fiji 20 May 2022 15.
[3] Ibid 15–16.
[4] Ibid 6.
Regarding the military, the report describes military involvement with the police as follows: ‘Fijian police are unarmed and, in cases where weapons are required, the military may assist police’.[5] Regarding the Fiji Police Force, DFAT reports that the police are generally well-resourced and professional, and that there have been recent improvements in training and accountability. While corruption is reported, DFAT understands that it is not widespread.[6] The section on police violence concludes:
Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.[7]
Has the applicant experienced harm?
[5] Ibid 22.
[6] Ibid 22–23.
[7] Ibid 23.
Noting that the applicant is an experienced traveller who visited Australia in 1992, 1995, 1996, 1999, 2000, 2001 and 2006 before arriving in May 2009, the Tribunal is not satisfied that the applicant feared for his and his family’s safety and left Fiji as soon as practicable after the December 2006 coup.
On the limited evidence available, the Tribunal is not satisfied that the applicant or his family have been interrogated, threatened, harassed, harmed or detained by police, the military or any other authority because of the applicant’s perceived or actual political opinion or his employment.
On the limited evidence available, the Tribunal is not satisfied that the applicant was suspected of political involvement, including being the leader or a member of a group opposed to the government. Nor is it satisfied that the applicant fled Fiji because of political turmoil.
Will the applicant face harm?
The Tribunal considered the applicant’s claims and the information before it, including the DFAT Country Information Report Fiji, and whether there is a real chance that the applicant would experience serious harm or a real risk that he would suffer significant harm now or in the foreseeable future if he returned to Fiji.
The information from DFAT does not support the applicant’s contention that ‘little has changed since 2006’, nor that the police force is under-resourced or corrupt. The Tribunal accepts that politics in Fiji is very different to the situation in the past, that the police force is generally well resourced and professional, and that police misconduct is regularly investigated.
On the information before it, considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm and, for the same reasons, the Tribunal is not satisfied that there is a real risk of the applicant suffering significant harm on his return to Fiji now or in the foreseeable future.
Therefore, the Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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.
Katherine Harvey
Senior 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.
…

[2022] AATA 5038

14 November 2022

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