2006148 (Refugee)

2006148 (Refugee) [2022] AATA 1249 (3 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006148
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Nathan Goetz
DATE:3 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 March 2022 at 10:01am
CATCHWORDS
REFUGEE – protection visa – Fiji – criticism of government – fear of being court martialled – indigenous rights not recognised – fear of harm due to family name – vague details about psychological stress and harm – undisclosed criminal history – delay in lodging visa application – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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).
BACKGROUND
The applicant identifies as [age]-year-old male citizen of Fiji. On [date] January 2019 the applicant arrived in Australia holding a visitor visa. This visa ceased [in] April 2019.
On 16 April 2019 the applicant applied for the protection visa and was subsequently granted a bridging visa to regularise his migration status in Australia until the protection visa application was finally determined.
On 9 March 2020 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s.36(2)(a), (aa), (b) or (c) of the Act. On 26 March 2020 the applicant applied to the Tribunal for review of the decision to refuse to grant him the protection visa.
On 7 April 2021 the applicant’s bridging visa was cancelled and he became an unlawful non-citizen. On 23 September 2021 the applicant was detained and placed into immigration detention as an unlawful non-citizen.
On 29 October 2021 the Tribunal wrote to the applicant because it had considered the information it had and was unable to make a decision favourable to the applicant. Accordingly, the Tribunal was required to invite the applicant to appear at a Tribunal hearing so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. As the applicant was in an immigration detention centre, the Tribunal sought the applicant’s consent to hold the Tribunal hearing earlier than the prescribed statutory period, namely on 4 November 2021. The applicant initially consented to this course and the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing on 4 November 2021. The applicant later asked the Tribunal hearing to be adjourned so he could obtain migration advice. The Tribunal agreed to adjourn the Tribunal hearing and listed the Tribunal hearing on 2 December 2021.
On 2 December 2021 the applicant appeared at the Tribunal hearing by audio-visual link from an immigration detention centre.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
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 Tribunal has considered the relevant contents of the department file, the relevant contents of the Tribunal file, and the relevant evidence the applicant provided at the Tribunal hearing. The relevant evidence is summarised below.
Relevant information from visa application form and discussion at Tribunal hearing
The applicant declared the visa application form on 13 April 2019 and further declared that he had not received assistance completing this form. The form was completed in handwriting save for the ‘reasons for claiming protection’ questions, which were provided by the way of a typed statement. At the Tribunal hearing the applicant said he had completed the form himself and said that the handwriting was his. The Tribunal asked the applicant whether he typed the four-page written statement himself and he said he did not. The statement was from him, but he was helped by a friend whose first name was [A]. He was unsure of her second name. He knew her through a colleague from Fiji with whom he studied. This colleague told him that [A] helped Fijian people submit visa applications. The Tribunal asked why this assistance was not declared in the form. The applicant said that he thought it was irrelevant and that he thought the question asked whether the applicant had received assistance filing out the applicant form. When the Tribunal pointed out the applicant told the Tribunal earlier that [A] had assisted him by typing up the written statement and queried how this reconciled with his assertion about [A] not assisting him fill out the form, the applicant responded that he was not thinking at the time.
The applicant identified that he was a citizen of Fiji and attached a Fijian passport to his protection visa application form.
The Tribunal asked whether the claims in the protection visa application form were true. The applicant said they were. The Tribunal proceeded to go through some of the questions in the form to test the correctness of the answers. The applicant confirmed that he had never been married or been in a de facto relationship as claimed in the written form. Noting that the form declared that the applicant had two [children], whom he identified at the Tribunal hearing as living with their mother in Fiji, the Tribunal asked how he was able to father [children] without being in a de facto relationship. The applicant identified their mother as a woman named [deleted] and that his [children] were born in [year and year] and said that they did not live together. They were girlfriend and boyfriend and the mother of his children lived with her family. The applicant said that he financially supported his [children] when he was in Fiji while working and did the same when he was working in Australia by sending money back to Fiji. He noted that he ceased his studies in Fiji to work so he could support his [children]. He confirmed at the Tribunal that he had a father, mother and two brothers as detailed in his protection visa application form. However, he told the Tribunal that one of his brothers was in Australia and was in Australia prior to the applicant’s arrival in Australia. Noting that the form indicated that both his brothers were in Fiji, the Tribunal asked why the applicant had not declared the presence of one of his brothers in Australia in the protection visa application form. The applicant responded that he forgot.
The Tribunal asked whether it was correct that the applicant had never been convicted of an offence in any country in Australia, as declared in his protection visa application form. The applicant said that he had not been convicted of any offence. The Tribunal then noted that the applicant was in immigration detention and asked him to explain how he came to be placed into immigration detention. The applicant said he came from jail. The Tribunal noted that the applicant had just said that he had never been convicted of a criminal offence and asked why he said that to the Tribunal. The applicant said that he understood the question to be related to countries other than Australia. Later, the applicant appeared to suggest that he had not been convicted of any offence and had been remanded in custody before being bailed, with criminal proceedings listed sometime in June 2022, which may have provided an explanation about why he told the Tribunal he had not been convicted of a criminal offence. The applicant said that he had bail documents in his room at the detention centre, and when asked by the Tribunal to obtain them, the applicant excused himself before returning with a document he showed to the Tribunal. That document was a parole order imposed by [a] Local Court on 14 September 2021 for 7 months and 1 day for conviction of two charges of common assault. This document demonstrated that the applicant had, in fact, been convicted of criminal offences.
When the applicant lodged the review application, he attached several documents concerning employment and qualifications. While these documents were not relevant to the applicant’s protection claims, they may have suggested that the applicant had applied for a protection visa only as a basis to remain in Australia for employment purposes. The Tribunal was particularly interested in the following documents:
· Australian Qualification Training certificate issued to the applicant on 29 March 2019 for completion of [a named course]
· Western Australian Government [industry] induction [card] issued to the applicant on 28 March 2019
The Tribunal was interested in those documents because the applicant had obtained his ‘[induction card]’ and the certificate while he held a visitor visa and prior to the applicant lodging a protection visa. At the Tribunal hearing, the applicant told the Tribunal that he completed the course online and it took seven hours. He received the ‘[induction card]’ in the post around seven days after he applied for the card. The Tribunal noted that the applicant had submitted payslips for work in Australia in March 2020 which disclosed he was employed. The applicant said he could not remember when he started work and said that this work was not organised when he was in Fiji. He told the Tribunal that he commenced work after he obtained his card.
Later at the Tribunal hearing, the applicant enquired whether the Tribunal had received and considered the documents he had sent recently to the Tribunal, namely those submitted on 2 November 2021. Those documents consisted of:
· A letter dated 2 November 2021 from [Mr B] who was identified as the managing director of [Company 1], who detailed that he met the applicant when he was working for a labour hire company on a job that the author was contracted to work on, before employing the applicant from March 2021 and that the employment remains in offer. The letter also spoke of the applicant’s involvement in sporting activities and the author’s assessment of his character. Mr [B] also provided a letter dated 21 October that appeared to be a letter offering employment.
· A letter dated 2 November 2021 from a person who was identified as the applicant’s cousin who spoke of the author’s assessment of the applicant’s character and qualities.
The applicant had asked the Tribunal to take oral evidence from these two people at the Tribunal hearing, but the Tribunal declined to do so on the basis that those letters did not appear to support a claim that the applicant was owed protection obligations. The Tribunal asked how the documents from Mr [B] and his cousin were relevant to his protection claims and he said they were not. The applicant said he provided those documents because he wished to be released back into the community from immigration detention.
The Tribunal asked the applicant why he applied for a visitor visa to come to Australia. He said it was for a visit. The Tribunal asked what the applicant’s intention was coming to Australia. The applicant said that he wanted to come to Australia and sightsee. He fell in love with Australia because of its advanced nature. He loved the work opportunities, payrates, and lifestyle. He wanted to apply himself and take advantage of the opportunity Australia offered to him. The Tribunal asked the applicant why the applicant did not return to Fiji. He responded that after being in Australia for one month, he fell in love with the country and wanted to build a life in Australia. He thought he would remain in Australia and make his stay legal by applying for a visa. He said that there were situations back in Fiji with lots of conflict going on, as well as limited work opportunities. He said he was risking his life and noted his tour with the Fijian military. The Tribunal notes that the applicant disclosed his employment history as follows:
· [Details deleted]
The applicant had provided a four-page written statement in response to the questions in the protection visa application form which asked his reasons for claiming protection. The applicant wrote:
I arrived into Sydney, Australia in March this year (2019) and have had a great experience that has completely changed my life. This was my first experience of living and visiting Australia and seeing what life is. I only see this type of life on television and in movies. Going for further education also took me to other parts of the word, my study in [Country 1] and studied for two years and was able to gain some experience. In Fiji the politics of the urban and rural life did not have any effect on us. It was only when I got to the city that I realised my life was not that easy. As a young man I learnt in school that democracy is very important. I however realised when going into the urban that there was no such thing as democracy in Fiji. Growing up into a young adult I started questioning the government system in Fiji but cannot voice my complaint for fear of being victimised.
I opted to remain quiet and be a silent receiver of what the government gives out to us, the people of Fiji. At the university level I became engaged with the situation in Fiji and how the rights of people are suppressed. My questions were not able to be answered. I realised that the UN cannot do anything about the way basic human rights and traditional village ways are controlled and suppressed by the current government. This affected me as I became depressed and stressed out realising that what we learn in school is not happening in Fiji and that Fiji is led be a dictator hiding and disguising under the 2014 and 2018 election. My frustration and anger grew but I held it within, and it started affecting me psychologically. I was psychologically stressed and started becoming aggressive and hot tempered. My family noted the changes and thought that it was best that I have a break from home.
I also have my children to worry about my children who are growing up in Fiji and are experiencing life that is so different from the way I was brought up because of the life that we now have in Fiji. Our tradition rights and values are suppressed and eroding as the government comes up with politics and decrees that ensure the erosion of traditional and cultural values and ethics. I do not want my children to be brought up in and environment like this.
I was unable to get and to seek help and assistance because in Fiji a person with psychological stress and depression can easily be labelled as a mental case. This will result in the person being looked down at so seeking counselling was not an option. There is no NGO or social service available to assist except the church is some cases. I was too frightened to share what I was going through because I was afraid of the authorities. In Fiji everyone is suspicious of everyone else because one does not know who can report you to the government if you openly criticise the government of the day. I have spent half my life in the village and know that the tension is less stressful compared to the urban areas. I do not want my parents to know the risks that are there, so I opted to stay in Suva and the [named] area.
As long as I can remember it was when I started going to school when my first experience of a military coup and instability started. My life had been one that thought that what was happening in Fiji was a norm and the social media, internet and outside worked were unrealistic. There was no such thing as basic human rights and democracy. I was getting psychologically depressed and it was badly affecting me. I saw the restrictions on one to be able to express their opinion and the freedom for one to openly challenge the government meant that you are breaking the law and will be taken to prison by the government. I was feeling depressed as I now saw people being taken to court, these are high profile people. I asked myself what does this mean for me. I clearly do not have a voice to let the public know my thought because I feared for my safety. I learned to keep a low profile and to keep quiet all the time because I did not want to be punished for exercising my right as an individual.

Although I was in the military at one stage, I took this as an opportunity to have gainful employment. It was a source of income and the only one that I could easily get at that time when I needed a source of income to survive. I left as soon as other opportunities and I was able to move on with better opportunities.
I am concerned about my own life and my own safety because the current situation in Fiji where my right to speak openly and challenge government policies is restricted, and I am not allowed to talk against the government. I am very depressed and did not understand why. These have psychologically affected me and have resulted in my becoming psychologically worked up, stressed out, aggressive and hot tempered. My frustration havs been building up since my last year at high school when I realised the negative effects of the two military coup I have experience and how it has affected my life growing up in a country of coup culture and with lots of restrictions on basic human rights. Over the last give years, I have finally resorted to taking my life because I realised that I cannot be showing my siblings good examples when I live in a country where we cannot exercise most of our human rights. With my parents seeing that my life was being affected they decided to send me to Australia for a break.
Coming to Australia has greatly improved my health condition. Meeting new people who I have come to treasure and getting great counselling has greatly assisted me reducing the psychological stress. I cannot seek assistance from my relatives in Fiji because if I did, they would also be implicated. I cannot move to another place because wherever I go to the Government will continue to do what they are doing now to me and my family and my problem will continue to increase. In Fiji I cannot move to another place because I was already in my village/estate community and there are social support systems traditionally and communally available to me.
If I return to Fiji this problem is going to continue. My trip to Australia has been very effective because it made me realise that there is a world outside Fiji where democracy is exercised and where people have freedom of expression and can express themselves or criticise the government without fear of being reprimanded by the authorities. My coming to Australia has helped me a lot. I have come to experience a life where I have suffered psychologically so I do not want to suffer again. Coming to Australia has improved me greatly and has made me a better person. My aggressiveness is slowly going away and I am improving becoming less stressed compared to at one time I wanted to take my life because I felt that I was useless being who cannot help his parents and cannot help his community.
I experienced harm in Fiji. I have experienced a lot of psychological and mental depression in Fiji. This was because of the different government policies that have been put in place by the current government and have caused of my depression as I do not have a voice in the country. It is very depressing to have learnt about democracy in school and not be able to practice it because the government of the day is dictatorial government and does not believe in democracy.
The Fiji government is responsible for the psychological harm. And this is because they do not want the indigenous Fijian to be recognised as the first people of Fiji and our cultural and traditional values are not respected by the current Fiji government. Indigenous rights are not recognised in Fiji. There is no current freedom of expression and the media is controlled by the government. The country is not a democratic country and youths have no voice. All these limitations and restrictions have resulted in my negative attitude toward life and hence the psychological harm.
I cannot move to any other part of the country because this problem is a major problem, and it is the government that is a threat to me and my family. I do not have any other place to move to, because if I move to my village/estate community the whole community will be implicated and I could be seen as the one causing trouble. I do not want my village to suffer and to be stigmatized so I would rather be on my own and do not move to another place.
I have been very vocal now as I am in a good country where freedom of speech is exercised. I am able to challenge the Fiji government and its policies, and it makes me feel better as I am now free to exercise my right. I am afraid for my life, mu safety if we return to Fiji.
I am requesting your kind consideration to help me. Coming to Australia has made me feel and realise that there is a safe and health environment outside Fiji. Please help me as I am afraid for my life if I got back home. It is better to kill myself than go back to Fiji.
Given what was contained in the written statement, the Tribunal asked the applicant what he feared would happen to him in Fiji. The applicant said that if he returned to Fiji he would be taken to a military camp and be court martialled and placed into detention. He noted that this would happen despite one of his brothers being in the Fiji military. As the applicant’s employment history in the protection visa application form detailed that he finished his employment with the Fijian military in May 2018, the Tribunal found this claim very odd and asked why the applicant would be court martialled by the military upon his return to Fiji. The applicant said he could be court martialled because he had not returned to Fiji. The Tribunal asked why he would be court martialled for not returning to Fiji. After a period of silence, the applicant said that he was unable to answer that question.
Concerning the applicant’s employment with the Fijian military, the Tribunal noted to the applicant that he ceased being employed with them in May 2018 and asked whether he worked after that time. The applicant said he did. He [did specified work] until he left Fiji for Australia. He worked for another [person]. The Tribunal asked why the applicant did not declare this employment in the protection visa application form. The Tribunal’s view is that the protection visa application form seemed to suggest that the applicant was unemployed after he left the Fijian military in May 2018. The applicant said that he did not include this employment because he did not think it was relevant. When asked to explain why he thought that information was irrelevant, he said that he had a lot of things going through his mind when he completed the form and thought he would be able to explain everything at the Tribunal hearing.
The Tribunal asked the applicant whether there was any other reason he feared returning to Fiji. The applicant said that his father, who was also in the military, was shot in a leg in 2000 at a military camp and since that time, the family’s name is targeted. Even though the applicant was employed by the Fijian military, he was treated differently, and he was tortured. He said that he won a bronze medal on a tour but that he did not receive the medal and certificate during an awards ceremony. The Tribunal asked the applicant to detail the torture. The applicant said that this happened during a tour with the military during his time in [a region], which the applicant declared in the protection visa application form was between April 2017 and April 2018. The applicant said he was coming back from a mission and people could see that he was progressing well. A senior officer told the applicant that he would be required to run. Other soldiers were not required to do so. The Tribunal asked why the applicant was required to do this. The applicant said it had to be due to him being successful in the military. The Tribunal asked whether him being tortured like this was one of the reasons he claimed to fear returning to Fiji. He said it was, and he has seen worse.
The Tribunal was troubled by the applicant’s oral evidence, as he had not claimed in his written statement that he was treated differently when he was in the military, nor provided the example of this treatment, nor detailed the basis of this different treatment. The Tribunal suspected that the reason this was not contained in the written statement was because the applicant’s claim about his father being injured, his differential treatment, and the example of that treatment during his tour of [a region] was fabricated at the Tribunal hearing. The Tribunal asked the applicant why the incident in the [region] was not detailed in the written statement. The applicant said that he was waiting for his Tribunal hearing to explain everything and thought that it would be a risk to detail this incident on paper, because someone may take a photo of the claim and send it to the Fijian military, and word would spread about what the applicant had said. The Tribunal queried the logic of this explanation and noted that the applicant’s written statement contained criticism of the Fijian government and wondered why the applicant would put this in a written statement, but not detail his own experience of what he described as torture, and the reasons for his treatment. The applicant said that he did not think his criticism of the Fijian government was relevant to his claims.
The Tribunal also wished to explore the applicant’s belief that he would be able to tell the Tribunal about his claimed torture at a future hearing as a reason for failing to detail the above claim. The Tribunal asked how he knew this. The applicant said that [A] told him that he would be granted work and study rights on a bridging visa while his protection visa application was being considered, and he would be able to tell the Tribunal about his claims at a hearing, which would probably be in 5 years’ time.
The Tribunal also noted that the applicant had not detailed in his written statement about his father being shot in the leg at a military camp in 2000 and that he feared harm on account of his family name and asked why he had failed to do so. The applicant repeated that he did not want the claim to ‘get into the wrong hands’ by writing it down.
The Tribunal summarised to the applicant the claims in his oral evidence as being a fear that he will be court martialled upon his return to Fiji because he had not previously returned, and the fear of harm because he had been tortured and treated differently by the military because of his family name. The Tribunal asked the applicant whether there were any other reasons he was applying for protection and the applicant said that they were the only two reasons. The Tribunal found this very strange, given the applicant’s written statement seemed to suggest that he faced harm on account of being an indigenous Fijian. The Tribunal then asked the applicant whether he was an indigenous Fijian to see if that would prompt the applicant to address that claim. The prompt did not work. The applicant confirmed he only had the two claims for protection that had been discussed at the Tribunal hearing.
The Tribunal asked the applicant whether he applied for a protection visa so he could work in Australia and send money back to Fiji. The applicant said that was one of the reasons, but denied it was the reason. The Tribunal asked the applicant whether his claimed fear of harm returning to Fiji was true or not true, and the applicant said that his fear was true.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the criteria for ‘complementary protection.’ The Tribunal must also determine whether the applicant is a member of the same family unit as a person who is a ‘refugee’ or a person who meets the criteria for ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Finding - Country of reference
The applicant claims that he is a citizen of Fiji and that he holds no citizenship of another country. He does not claim to hold a right to enter and reside in a third country. There is no evidence that the applicant is not a citizen of Fiji, that he holds citizenship of another country, or that he holds a right to enter and reside in a third country.
Therefore, for the protection visa application assessment, the country of reference is Fiji.
Finding – Credibility
The Tribunal accepts the applicant’s explanation as to why he did not detail the mother of his two children in the protection visa application form. The form presupposes that a relationship needed to exist between an applicant and the mother of his children in order for the mother of the applicant’s children to be detailed in the form.
That being noted, having considered all the evidence, the Tribunal has ultimately concluded that the applicant is not a witness of truth and that he has fabricated his protection claims in order to achieve a migration outcome, namely permanent residency in Australia. The Tribunal came to this conclusion for the following reasons.
Failure to raise his protection claim concerning his profile as an indigenous Fijian at the Tribunal hearing
The Tribunal struggles to accept that if the applicant genuinely feared harm in Fiji due to his profile as an indigenous Fijian, he would fail to tell the Tribunal about this at the Tribunal hearing. The applicant detailed this claim in the protection visa application form but specifically told the Tribunal he had no claims other than he feared being court martialled upon his return to Fiji and feared harm because of his family name due to his father. The Tribunal is satisfied that the reason the applicant failed to raise this claim in his oral evidence at the Tribunal hearing was because his claimed fear of harm on account of being an indigenous Fijian was manufactured and that the applicant has no such fear.
Failure to detail specific instance of harm and that he feared harm in Fiji due to his father’s role in the previous coup
The Tribunal struggles to accept that if the applicant’s father had been ‘shot in the leg’ in 2000 in connection with the coup, which resulted in the applicant being ‘treated differently’ by the military during his service, and being harmed by being forced to run, or by being denied the ability to receive an award in a ceremony, he would fail to detail this in the protection visa application form. The Tribunal is satisfied that the reason the applicant failed to detail this claim in his protection visa application form is because the applicant fabricated this claim at the Tribunal hearing. The Tribunal does not accept that the applicant decided not to detail this claim in the protection visa application form because he was fearful of that claim becoming known to the Fijian Government if he wrote it down. If that logic was true, then the applicant would not have detailed any claims concerning Fiji.
Vague details about psychological stress and harm in Fiji
Given that the applicant failed to detail his treatment by the military on account of his father’s injury in the 2000 coup in Fiji, the Tribunal is at a loss to understand whether the applicant claims about the psychological distress and harm he suffered in Fiji as contained in the protection visa application form was due to his treatment by the military, or because he disliked how the Fiji government and society worked as seemed to be suggested in the protection visa application form.
In any event, the applicant’s broad references to psychological distress, and thoughts of self- harm in the protection visa application form lack any real weight. In the Tribunal’s judgement, the assertions about psychological harm and thoughts of self-harm were fabricated by the applicant to lend credibility to a claim that the applicant was opposed to the Fijian Government and that it was his opposition that led to him feeling they way he did. The Tribunal does not accept that there is any truth to that, given the vague references to the harm. The Tribunal notes that the applicant provided no corroborative evidence about his psychological state to support his claim despite him claiming to have received ‘counselling’ to address his issues.
Failure to disclose criminal history to the Tribunal
The Tribunal was also concerned that the applicant initially told the Tribunal that he had no criminal history, and that it was only after questioning to find out how the applicant came to be in immigration detention that he admitted that he had been in jail. The failure of the applicant to initially admit that he had been convicted of criminal offending and instead tell the Tribunal that he thought the question related to whether he had been convicted of criminal offending in any other country, demonstrates that the applicant had a flexible approach to the truth and was prepared, when caught out in a lie, to continue to adopt a flexible approach to the truth by pretending that the lie was due to him misunderstanding the question. The Tribunal also notes that it was not until the applicant produced documentation at the Tribunal hearing which demonstrated that he had been sentenced to a term of imprisonment with a parole order that the Tribunal was able to get a clear understanding about the applicant’s criminal history. The Tribunal struggles to believe that the applicant was honest and frank with the Tribunal and is satisfied that the applicant tried to hide his criminal history from the Tribunal for fear that his criminal history would be detrimental to him being granted a protection visa. This shows the applicant to be a person who is willing to tell untruths in order to achieve a certain outcome.
Failure to disclose post-military employment in Fiji
Upon reading the protection visa application form, it suggests that after the applicant left the Fijian military in May 2018, he was unemployed until the time he departed Fiji in January 2019, although the Tribunal acknowledges that the applicant refers to leaving the military as he was ‘able to move on with better opportunities.’ The Tribunal queries how the applicant would be able to remain working [up] until the time he left Fiji (as he claimed in his oral evidence) if he suffered from the psychological stress of living in country that had been subject to two coups. The Tribunal suspects that the reason the applicant failed to detail his post-military employment in Fiji was because he was concerned that doing so may undermine his protection claims.
Vague evidence about the reason he would be court martialled upon return to Fiji
The applicant claimed he would be court martialled upon his return to Fiji but was unable to explain how he would be subject to court martial when he was not a serving member of the Fijian military, having ceased employment with the Fijian military in May 2018. The only evidence that the applicant could give was that he would be court martialled because he had not returned to Fiji. The Tribunal is not aware of any information to suggest that people who previously served in the Fijian military are subject to court martials for leaving or not returning to Fiji. The Tribunal is satisfied if there was any truth to a claim that former members of the Fijian military were subject to court martial the applicant would have provided evidence about this, such as media reports. The applicant did not provide any such reports. The Tribunal is satisfied that the applicant did not provide such media reports because no such reporting exists.
Vague references to dislike of current political and social situation in Fiji
The applicant’s written statement claims that the applicant cannot voice his opposition to government policies in Fiji. In essence, he asserts that Fiji has no human rights and that this has led to him being psychologically harmed and depressed. The applicant did not claim to have expressed any public opinion against the Fijian government in his written claim and attributed not doing so to fear but did claim that he has ‘now been vocal in his criticism’ of the Fijian government. The applicant did not claim at the Tribunal hearing that he feared harm in Fiji because he is now a vocal critic of the Fijian government, nor did he provide any corroborative evidence of his ‘vocal criticism.’ The Tribunal is satisfied that there was no claim made that he was at risk of harm because of his ‘vocal criticism’ of the Fijian government because the applicant has not been vocal in any criticism of the Fijian government in Australia. The Tribunal is not satisfied that the reason the applicant was not ‘vocal’ in criticising the Fijian government while he was in Fiji was due to his fear of the consequences of that criticism when the Tribunal considers the totality of the evidence. Rather, the Tribunal is satisfied that the absence of any ‘criticism’ of the Fijian government during the applicant’s time in Fiji is due to the fact that the applicant was not critical of the Fijian government. The Tribunal is satisfied that the applicant fabricated his claimed fear to explain why he had not publicly expressed criticism of the Fijian government while in Fiji
Evidence submitted by the applicant suggestive that the reason he applied for protection was to pursue work opportunities in Australia

In the written protection visa application form, the applicant wrote about his life improving after arrival in Australia. The Tribunal notes that the applicant acknowledged at the Tribunal hearing that a reason for claiming protection in Australia was so he could work and send money back to Fiji, and that the person who assisted him applying for the protection visa told him that he would be granted a bridging visa with work rights and would have about 5 years to do so. The letter submitted by the applicant from his cousin also declared that the applicant ‘chose to move here to Australia so that he can support his family back home.’
The Tribunal finds this suggestive of the applicant desirous to remain in Australia for work opportunities, rather than because he feared harm in Fiji. The Tribunal is comfortable making this finding when it assesses the other concerns it had about the applicant’s credibility as detailed in this decision record.
Delay in seeking protection
The department records indicate that the applicant arrived in Australia in January 2019. He applied for a protection visa in April 2019. That is approximately three months after his arrival in Australia. It is reasonable to expect that if the applicant had a genuine fear of harm in Fiji, he would apply for a protection visa shortly after his arrival in Australia, given he arrived on a visitor visa that required he return to a country where he claimed there would be a real risk of serious harm or a real chance of significant harm.
However, as made clear in the applicant’s written statement and in his protection visa application form, the applicant claimed to have arrived in Australia in March 2019, some two months after he actually had arrived here. The Tribunal also notes that in the applicant’s passport that he provided with the protection visa application form, there was no Australian immigration entry stamp to verify the March 2019 arrival date he claimed in his protection visa application form. The absence of an Australian immigration entry stamp is probably attributable to the fact that the applicant omitted pages 12-13, 16-17, 26-27, 28-29, 34-35, and 48-49 on his 64-page Fijian passport that was valid from [2015] to [2025]. The Australian immigration entry stamp showing an arrival date in January 2019 was probably included on one of those pages.
The Tribunal is satisfied that the applicant falsely claimed to have arrived in March 2019 in an attempt to stop the Tribunal concluding that the applicant had delayed applying for the protection visa and inferring from that delay that he did so because he did not fear harm in Fiji, and had lodged the protection visa for reasons not connected with Australia’s protection obligations. The Tribunal is satisfied that the applicant’s willingness to provide a false date for his arrival in Australia shows a calculated and dishonest approach to his visa application and a willingness to provide false information in order to achieve a favourable migration outcome.
CONCLUSION
The Tribunal is not satisfied that the applicant left Fiji because he experienced harm in that country. The Tribunal is not satisfied that the applicant experienced harm in Fiji as he claims. The Tribunal is not satisfied that the applicant is of adverse interest to any person, group or authority in Fiji. The Tribunal is not satisfied that the applicant refuses to return to Fiji because he fears harm in Fiji for any reason. The Tribunal is not satisfied that the applicant is a witness of truth for the reasons given above.
The Tribunal is satisfied that the applicant’s claims are manufactured in their entirety and were put forward because the applicant sought to achieve a migration outcome to remain permanently in Australia for reasons not connected with Australia’s protection obligation.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Fiji due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk he will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Member of the same family unit
There is no evidence that the applicant is a member of the same family unit as a person who satisfies either s 36(2)(a) or (aa) of the Act and holds a protection visa.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
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.
…

[2022] AATA 1249

3 March 2022

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