2011191 (Refugee)

2011191 (Refugee) [2023] AATA 4744 (14 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mukesh Chand (MARN: 0962241)
CASE NUMBER:  2011191
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:14 November 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 November 2023 at 11:45am

CATCHWORDS
REFUGEE – protection visa – Fiji – original claim of financial insecurity – no past harm or fear of future harm – new claim added in application for review – workplace harassment and accusations of involvement with group – detained, tortured and blacklisted – credibility – shifting and unpersuasive evidence – continued employment after circumstances – unhindered departure – work and no medical consultations for physical or mental health in Australia – striking similarity of supporting statements – adverse inference for late claims – economic circumstances and capacity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c), 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Re MIMA; Ex parte Applicant S20/2002 [2003] HCA 30

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 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Fiji (Fiji) and is [Age] years old. He arrived in Australia [in] June 2017 on a visitor visa.
He applied for the protection visa on 11 November 2017.
A delegate of the Minister refused to grant the visa on 16 June 2020.
On 3 July 2020 the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. I am satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 13 September 2023 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the applicant but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 October 2023 and to provide all documents he intended to rely on to support his case by 4 October 2023.
The representative requested that the hearing be postponed due to his prior work commitments and the hearing was rescheduled to 13 October 2023.
The applicant appeared before the Tribunal on 13 October 2023 to give evidence and present arguments. I exercised my discretion to hold the hearing by Microsoft Teams video. I determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay in the matter if the hearing was not to be conducted by video.
The applicant gave evidence about his background, his migration history and his claims for protection. I am satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf.
The applicant was represented in relation to the review and his representative attended the hearing by Microsoft Teams video.
For the following reasons, I have concluded that the decision under review should be affirmed.
Material before the Tribunal
With his application for protection the applicant provided
·a Declaration Further Stay As A Visitor form dated 13 September 2017
·a certified copy of the birth certificate for the applicant’s son [Mr A]. The certificate advises the child’s parents were married on [Date]
·a copy of his Northern Territory Driver Licence with a date of expiry of [September] 2018
·a copy of the biodata page of his Fiji passport with a date of expiry of [2027]
·a certified copy of a status of service advice dated 10 February 2015 from [Mr B], [Job title], for [Employer 1] advising that the applicant was [an employee] of [Employer 1] for more than [Number] years before he reached [retirement age] on [Date]
·a certified copy of an Australian national police check for the applicant issued [July] 2017
·a copy of the applicant’s flight booking confirmation departing Nadi, Fiji [in] June 2017
·a certified copy of the applicant’s birth certificate
·a certified copy of birth certificate of [Ms C] (dob [Date]), the applicant’s wife, and
·certified copies of the birth certificates of the applicant’s three surviving [children].
With his application for a review of the delegate’s decision, the applicant provided:
·an affidavit from [Mr D] dated 29 June 2020
·an affidavit from [Mr E] dated 29 June 2020
·an affidavit from [Mr F] dated 29 June 2020
·an affidavit from [Ms C] dated 29 June 2020
·a signed statement comprising a synopsis and rationale from the applicant dated 30 June 2020
·an undated letter from [Mr G], Branch General Manager, [Employer 2] [Town] advising that the applicant has worked there full time since 7 February 2018, that he has undertaken training and is being considered for a Diploma in [Subject 1]
·a statement of attainment dated 1 August 2018 from [University] advising that the applicant has a licence to operate a [vehicle]
·a certificate advising the applicant has fulfilled the requirements for a Certificate III in [Subject 2]
·a personal description, and
·a request for a fee reduction from the AAT (not for the Migration and Refugee Division) dated 3 July 2020. [On 6 July 2020 the AAT advised the applicant that review applications for protection visa refusals do not require payment and therefore his request was not necessary.]
On 7 July 2020 the applicant provided a two-page ‘personal description’ about the affidavit writers.
On 10 July 2020 the applicant provided:
·a ‘Grid reference of events’ written by the applicant and dated 10 July 2020
·a ‘Snapshot of [the applicant]’s anecdote’ written by the applicant and dated 10 July 2020, and
·an undated FijiFirst ‘no honesty no justice’ poster.
On 11 July 2020 the applicant provided:
·an article ‘Fiji’s military junta strong-arms its political opponents’ by Frank Gaglioti dated 27 February 2007, which was published on the World Socialist Web Site
·‘Fijian coup leader’s brother-in-law charged over beating death’, which was published by the Sydney Morning Herald on 20 January 2007, and
·‘Pathologist gives evidence in court’, Nanise Volau, Fiji News, 1 April 2009.
On 30 July 2020 the applicant provided a submission dated 28 July 2020.
On 9 February 2022 the applicant emailed the Tribunal requesting an update on his immigration status.
On 23 March 2023 the applicant emailed the Tribunal regarding his Medicare renewal application and overdue tax and provided a copy of his five-year service award from [Employer 2] dated 1 February 2023.
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 (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.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
Background
The applicant’s personal details are set out in his application for protection. He is [Age] years old and was born in [Location], [Province], Fiji. He claimed that he is a Christian. From [Year] to 2014 he was employed as [an Occupation] with [Employer 1] and was [assigned] as [a job task] in [Countries]. He retired in [Month, year] when he reached [Age], the compulsory retirement age. The applicant has worked for [Employer 2] since 7 February 2018 and is the [Job title 2] in the [Workplace] in [Town].
The applicant claimed that he is married and his wife lives in [Suburb], Naitasiri Province on Viti Levu, Fiji’s largest island, where the applicant lived before coming to Australia. At the hearing, the applicant explained that his wife, two sons and [a daughter] they care for live in the family home in Fiji. His sons are undertaking training and his daughter is studying at university in Sydney.
The applicant provided details of his uncle, two sisters-in-law and nephew who live in Australia.
Country of reference
The applicant claims he was born in [Location], [Province], Fiji. He provided a certified copy of the biodata page of his Fijian birth passport and claimed that he is citizen of Fiji.
I am satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purposes of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in the application for protection.
The applicant claimed that he left Fiji because of financial insecurity. He claimed that he had not experienced harm in Fiji. He claimed that he came to Australia because it is one of the most developed and secure countries in the world. He claimed that Fiji is a coup country and will be having general elections in 2018. He claimed that the role of a father is to see that nothing is done to jeopardise his children’s education.
The applicant claimed that he would not be harmed if he returned to Fiji. He claimed that the authorities would not protect him because it is a father’s duty to care for his children. The applicant claimed that, if there was another coup, they would be able to relocate to Australia because it is one of the most developed and secure countries in the world.
In the attached Declaration Further Stay As A Visitor the applicant said he had been visiting relatives and attending a Certificate II course in [Subject 3] so he will be entitled to the dual [work-related] licence in the Northern Territory. He advised he wished to complete the course which will help in his day-to-day administration during his stay in the Northern Territory. He advised he will apply for a permanent visa as Fiji will be having a general election in 2018 and it is known as a coup country, and his duty is to ensure his children’s education is not jeopardised.
With his application for review, the applicant made new claims for protection.
In Snapshot of [the applicant]’s anecdote, the applicant claimed that he attained [a work level] and was in charge of [a work Unit] for more than 10 years before he retired in [Year]. He claimed that before he retired, he was approached by the leadership management and offered a promotion to continue on a contract basis. He declined their request which strained their relationship. He claimed harassment gradually started at random with [another work Unit] asking questions about his involvement with [people]. He claimed on 15 January 2017 [Specified people] captured and held him and three colleagues for 40 hours. He claimed that he ‘was only a breath away to death’ and from that day, he told himself he would flee his country and seek protection in Australia.
In his affidavit, [Mr D] claimed that he and one other ‘co-worker’ had been held with the applicant. He claimed that the applicant was blacklisted from leaving Fiji from 2016 until he fled to Australia fearing for his life. He claimed the group [experienced] rough-shod tactics and cruel torture while they were held.
In his affidavit, [Mr E] claimed that he and two others had been held with the applicant. He said after being ‘grinded’ and beaten badly by the [Specified people] they were released and told to find their own way (home). He claimed the applicant was the most wanted amongst the group because he was so vocal about the undemocratic practices of [Employer 1].
In his affidavit, [Mr F] claimed that he and two others had been held with the applicant. He claimed they were subjected to torture and inhumane treatment and other tactics that dehumanise the integrity and dignity of human beings.
In her affidavit, the applicant’s wife [Ms C] claimed that after returning home, the applicant ‘lay in bed for almost a week because of body pains and exhaustion due to the torture inflicted’.
The applicant claimed that he was extremely scared that he would be an addition to the death count if he returned to Fiji.
In his submission, the applicant claimed that he was not in a healthy state of mind when he applied for protection and he lacked mental capacity and that his ‘papers were made up of illogical and unreasonable narratives’.
At the hearing, the applicant maintained his original claim about financial insecurity, his claims made at the time he applied for review and he made new claims about harm that he had experienced in Fiji.
Assessment of claims and evidence
At the hearing, the applicant said that even though the government has changed in Fiji, the military is the same and the military could injure him if he returned to Fiji. He said they could do to him what they did to him previously.
He said that this goes back to 2014 when he was offered a position and refused it because it was close to his retirement age. He said that the ‘case’ is still alive and on his return they will reopen the case. I asked what case and he said when he was arrested and taken to the ‘hit squad’ in 2017. He said that the case has been ongoing since 2000 and it became worse in 2017.
He explained that the mutiny happened in 2000. He was on duty and when he knocked off his shift, there were five rebels there and they told him the operations officer had approved them coming there to clean their guns. He rang and confirmed this with the operations officer and then he allowed them to clean their guns. He said that the rebels then detained the person who came on shift to replace him. When the investigations came, they thought the applicant was part of the rebels because the rebels had let him go but detained the next person. He said that was the reason for the ongoing investigation in 2014 to 2017.
The applicant then said the investigation was from [Years]. I asked if they were looking at anything other than [the Circumstance]. He said the investigation is they thought he was part of [the group] because [of a reason]. I asked what happened when he was being investigated. He said they arrested him and beat him up, which was in 2017. I asked what had happened in [Year] and the applicant said he had two [assignments] to [Region]. I suggested that the investigation did not affect his career at all and he said no, it did not affect it until 2017 when things turned worse. I do not accept that the applicant experienced any harm because of investigations in [Year].
The applicant said that he feared harm from [the Specified people]. He said he did not know who was in it because they wear balaclavas. He said he knows it is the [Specified group]. I asked [something about the Specified group] and he said he did not know because [of a reason].
The applicant said that he believed that he could go to the police but he also believes that the case will still be alive if he returns to Fiji. I asked what help he could get from the police and he said they will just take his statement and that will be it. He said that right now there are still those who are loyal to the ‘other two’. He explained the ‘other two’ are the former Prime Minister Bainimarama and Mr Khaiyum (Aiyaz Sayed-Khaiyum), the former Attorney General. The applicant said that the police would only take his statement because all the decision making comes from the two he mentioned. I reminded him that former Prime Minister Bainimarama is no longer in parliament and the government has changed and asked him why the police would be answerable to people not even in parliament. He said that there are still members of the police in the hierarchy who are still loyal to the other two.
Has the applicant experienced harm?
At the hearing, the applicant claimed that he was beaten up and tortured for 40 hours [in] January 2017. He claimed he was picked up at his home by the [Specified group] and they took him and injured him and before they left, they told him that if they had to return they would kill him. He claimed that five people raided his home, picked him up, took him to [a Facility] and punished him. He said he was taken to [a Facility] in [Location 2] and he knew it was that [Facility] because [of a reason].

He claimed that they hit him with the butt of the rifle to his nose and broke his nose and they kicked him and the three colleagues with him (who supplied the affidavits). He said they kept doing it until he was almost unconscious. He said he was held for 40 hours and then they were brought to a certain place and left there and they had to find their own way from there. He said he went home and was massaged by his wife for the pain.
He said that he did not have any other treatment. I asked what happened after he had a massage and he said he started thinking about leaving Fiji. I asked if he saw a doctor and he said ‘no’. I asked if he received any medical treatment at all and he said ‘back at the [Facility], all they gave me was Panadol, that was it’. I asked who gave him Panadol and he said ‘the doctor’. I asked which doctor and he said ‘the [doctor]’. I asked him when he saw the [doctor] and he said ‘after I was beaten up’.
I reminded him that he said after he was beaten up he was taken to a certain place and had to find his way home. He said ‘my apologies Member, my mistake. The Panadol was at home’. I clarified whether the [doctor] had given him Paracetamol and he said ‘no’. I asked what treatment the [doctor] gave him and he said ‘no treatment’. I asked what treatment the [doctor] had given his colleagues. He said that they were all treated the same and nothing was done for them.
I asked what happened between January and when he left Fiji in June 2017. He said he was trying to recover from his injuries and he went to lots of places for traditional massage before he came here. He said that nothing else happened.
I asked him what happened between his retirement on [Date] and January 2017. He said that was the period when they upped the investigation. He said that he was harassed and beaten. He said they kept increasing the severity of the torture until he passed urine and defecated with the strength of being tortured.
He said that in 2014 he had gone home when he retired and he remained at home and then they started coming to his home and arresting him and taking him to the [Facility] to be questioned and released, and this cycle continued until 2017 when things got worse.
I asked how often this happened. He said when it started it was once a week. He said it started when he returned home before Christmas, after retiring. It was random questioning. Sometimes it was once a week, sometimes twice a week, sometimes there was a break in between but it was continuous.
The applicant said he was taken to [Facility] and beaten about 10 times in 2015. He said that he did not receive medical treatment, just massage at home. He could not remember how many times he was taken to the [Facility] and beaten in 2016, all he knew was in 2017 things got worse.
The applicant said he did not tell anyone about the beatings in 2015, they just talked amongst the four of them because they knew if they told other people they (the ‘[Specified people]’) would come back for them.
I asked the applicant why he had not mentioned the beatings that happened before January 2017 before the hearing. He said because what happened earlier was not as strong as what happened in 2017. He said he did not put it on the record. When asked why he did not put it on the record, he said that probably because of what was happening to him meant he was traumatised so he missed writing it down.
In his statement dated 30 June 2020, the applicant claimed that he ‘was not in a healthy state of mind’ when he arrived in [Town] (on 6 June 2017), that ‘the core logical rationale of attaining refugee status as stated was quite limited because of his mental state’ and that he ‘lacked mental capacity’. I explained to the applicant that there was no evidence before me that he had any medical consultation or received any medical treatment for a mental health issue. He said he only sought massage therapy and he did not go to a doctor. I asked if he had consulted a doctor in Australia. He said the only treatment he went through was a general medical check-up with a doctor ‘somewhere around here’ ([Town]) and for other treatments he was just using Medicare when some other ailment arises. Based on the information before me, including that the applicant applied for protection on 11 November 2017, that he has never sought medical assistance for his mental health and that he has undertaken training and worked full-time since 7 February 2018, I do not accept that the applicant ‘was not in a healthy state of mind’, that he ‘lacked mental capacity’ or that ‘the core logical rationale of attaining refugee status as stated was quite limited because of his mental state’ when he arrived in Australia or when he applied for a protection visa five months later.
I explained to the applicant that his claim that he experienced harm at the hands of [Specified people] [in] January 2017 and that he feared for his life was a new claim raised after the primary decision had been made. I explained that under s 423A of the Act, I am to draw an unfavourable inference about the credibility of this claim unless I am satisfied that he has a reasonable explanation for why it was not raised earlier. In their affidavits dated 29 June 2020, [Mr D], [Mr E], [Mr F] and [Ms C] do not provide any evidence about why these claims were not raised before the primary decision was made. I asked the applicant why he had not raised this claim before the primary decision was made in 2020. He said that when he left Fiji, he was still traumatised by everything that had happened to him and that is why there is some things he may have missed. He said that when he heard about the Tribunal, that is when he started working through and thinking things through about what to put a claim on. Based on the information before me, including the lack of evidence of medical treatment in Australia, the applicant’s work history and the lack of evidence in the affidavits, I am not satisfied that the applicant’s explanation is a reasonable one for why this claim was not raised earlier.
I explained that there was no medical evidence before me that the applicant had received any medical treatment after [January] 2017 and, in his application, he said that he had not experienced harm in Fiji. I invited him to comment and he said that he had nothing to say because it was all in the form. I do not accept that an applicant for a protection visa would claim that he had not experienced harm in his application and overlook being arrested, beaten and detained for 40 hours some 10 months before he applied for protection.
I explained to the applicant that his claim that he had experienced harm at the hands of [Specified people] from 2014 to 2017 was a new claim raised after the primary decision had been made. I explained the workings of s 423A again and asked why he did not raise this claim before the primary decision was made in 2020. He said that through his trauma he was totally oblivious to what he had to do in this direction or the process he needed to follow until he knew what the Tribunal had to offer. Based on the information before me, I am not satisfied that the applicant’s explanation is a reasonable one for why this claim was not raised earlier.
Considering the applicant’s evidence as a whole, I did not find the applicant to be a credible and reliable witness. In reaching this view, I had regard to the significant inconsistencies between his application, his written evidence to the Tribunal at the time he applied for review and his oral evidence to the Tribunal at the hearing, as well as the shifting and unpersuasive nature of his oral evidence at the hearing. In his protection visa application, the applicant claimed that he had not experienced harm, he did not fear harm and he came to Australia because of financial insecurity. However, in his written evidence to the Tribunal the applicant and his three former colleagues in their affidavits claimed that they experienced harm on [January] 2017. In his wife’s affidavit, she claimed he had been subject to interrogations of which events on [January] 2017 were the most terrible and horrifying, and at the hearing, the applicant claimed that he had experienced harm repeatedly from 2014 that culminated in the events on [January] 2017.
At the hearing, the applicant gave shifting and unpersuasive evidence about his treatment after [January] 2017 events when he claimed he was hit with a rifle butt and kicked until he almost lost consciousness. I do not accept that the applicant’s claimed treatment was consistent with that required by a person who had been beaten with a rifle butt and kicked with [boots] almost to the point of unconsciousness.
At the hearing, the applicant claimed that he had experienced harm from 2014 until [January] 2017, after which nothing happened to him before he left Fiji on 5 June 2017. I found this evidence unpersuasive and do not accept that the ‘[Specified people]’ would regularly and consistently interrogate and beat the applicant from 2014 to 15 January 2017 and then suddenly cease their interrogations and beatings for almost five months. The applicant also claimed that [Employer 1] are now patrolling his house. Initially he claimed that these patrols were weekly and then later in the hearing he said that they were monthly. I do not accept that [Employer 1] would start patrolling after the applicant had left the country.
Having found that the applicant is not a credible and reliable witness, I carefully considered the affidavits from the applicant’s former colleagues and his wife. I note that the three affidavits from the applicant’s former colleagues are strikingly similar and their evidence is substantively identical. I note that [Mr D] used the phrase ‘the three of us’ when the applicant and others claimed that there were four of them. I also note that all the affidavits are unparticularised and that no contact details or identification documents were provided for the deponents (although the applicant did provide his own personal descriptions of the deponents). The evidence in the affidavits is generalised and none of the first three deponents name the ‘good friends’ who transported them home. I consider that the affidavits are lacking details and do not substantiate any claims that the applicant has made because their evidence is largely the applicant’s evidence. Considering [Ms C]’s affidavit, at the hearing, the applicant claimed that the ‘[Specified people]’ comprised five [people], while [Ms C] claimed that eight [people] together with a [Leader] came to take her husband [in] January 2017.
I do not accept that the four affidavits are independent recollections of events some 41 months earlier but rather that they are the coming together of minds to create the statements. As McHugh and Gummow JJ observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 at [49]:
… it is not unknown for a party's credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration...[1]
For the reasons above, the affidavits did not assist the applicant’s credibility and I give no weight to the affidavits because the well has been poisoned beyond redemption.
[1] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2022 [2003] HCA 30 at [49].
Having found that the applicant is not a credible and reliable witness and as I am not satisfied that he has a reasonable explanation for why he did not make his claims about experiencing harm [in] January 2017 and in 2014, 2015 and 2016 before the primary decision was made, I do not accept that the applicant experienced harm at the hands of the [Specified people] or anyone else. Based on the information before me, I find that the applicant manufactured his claims that he was harassed, tortured, beaten and held captive by the [Specified people] or anyone else in [Employer 1] and that he experienced harm [in] January 2017 and in 2014, 2015 and 2016 for a migration outcome. It follows that I do not accept that the applicant required treatment with massage or Panadol or from the [doctor], and I do not accept that a ‘case’ is still alive in Fiji.
Based on the evidence presented by the applicant, I am not satisfied that the applicant has substantiated his claim that, if he made a report to the police, they would not assist him because they are answerable to former Prime Minister Bainimarama and former Attorney-General Sayed-Khaiyum.
Vocal about undemocratic practises of [Employer 1]
I explained to the applicant that he had not provided supporting evidence to support his claims and those of his former colleagues that he was vocal about the undemocratic practises of [Employer 1]. He said he just had the affidavits and his claims and what he extracted from the internet. I explained that there was no evidence other than the affidavits that suggested he had ever been vocal. We discussed that the articles from the internet were general and not specifically about him. The applicant said that there is not any other evidence. As the articles are historic, general in nature and not related to the applicant, I do not accept that they are evidence of him being vocal about undemocratic practises of [Employer 1]. As discussed above, I give no weight to the affidavits.
Based on the evidence presented by the applicant, I am not satisfied that the applicant has substantiated his claim that he was vocal about the undemocratic practises of [Employer 1]. He did not provide any evidence about what form ‘being vocal’ took including who he spoke to, when he spoke with them, where such conversations were reported, or in what circumstances such conversations happened. Nor did he provide any evidence that his career in [Employer 1] had been affected in any way. Based on the information before me, I do not accept that the applicant has been vocal about the undemocratic practises of [Employer 1]. I find that there is no real chance and no real risk of the applicant experiencing serious harm or suffering significant harm as a result of having been vocal about the undemocratic practises of [Employer 1] if he returned to Fiji now or in the foreseeable future.
Blacklisted
I asked the applicant about [Mr D]’s claim that the applicant was blacklisted from leaving Fiji from 2016 until he fled to Australia. He said whether he’s on the blacklist or not he does not know for sure, but what he does know is that he is a target and this is hinted at by [Employer 1] doing regular patrols around his home. He said that sometimes they are on foot and sometimes in a vehicle. He said they come past and keep going and this occurs once a month. I asked why there was anything sinister in them driving past his house. He said they wanted to know if he was still at home. I asked why he thought that and he said being in [Employer 1] he ‘knows the ins of what they are doing’ and that there was no exchange or interaction.
The applicant confirmed that he flew out of Nadi Airport to Australia as the holder of a tourist visa. Based on the evidence that he was able to depart Fiji regularly through a controlled airport, I do not accept that the applicant was blacklisted from leaving Fiji.
Having found that the applicant manufactured his claims that he was harassed, tortured, beaten and held captive by the [Specified people] it follows that I do not accept that [Employer 1] is doing regular patrols around his home to ascertain the whereabouts of the applicant. I find that the applicant manufactured this claim to support his claim for protection.
Economic situation
In his application for protection, the applicant claimed he left Fiji because of financial insecurity. At the hearing I asked if there was anything he would like to tell me. He explained that he retired at [Age] and he has 2 properties and a car that he has paid off. He said that he came out to Australia to further improve life and support his family and also to ‘come away’ from his bad experience.
When I asked what was happening to his family in Fiji, the applicant said that they have been facing hardships because the price of things has gone up. He said that he supports them.
In his application for protection, the applicant claimed that he received ‘[Superannuation/pension]’. At the hearing, he confirmed that he received money from the [Superannuation/pension]. I discussed the country information, which would suggest that he was eligible for a [monthly allowance].[2] [Information deleted.].
[2] [Reference deleted.]
At the hearing, I put it to the applicant that it appeared that he had left Fiji to earn money in Australia and that he was honest when he claimed in his protection visa application that he had not experience harm in Fiji and that he would not be harmed if he returned. I invited him to comment or respond and he said yes, as he has said and written in his report. He said with regards to [Superannuation/pension], what they are providing for his child is nowhere near enough to pay for his child’s education and he is working in Australia to financially support his child until they complete their education.
I asked again if he wanted to comment on his claim that he was not harmed and would not be harmed. He asked if I meant the report he had submitted and I explained that these were claims in his protection visa application. He said that he does not recall everything that he recorded on that form.
I discussed that, based on the information before me, the applicant has worked in Fiji and Australia and is employable, that he continues to receive [Superannuation/pension] and that he would return to his family home. I explained that there was no information before me that the applicant would not be able to subsist in Fiji. He responded that [Superannuation/pension] is only a hundred-odd dollars a month for his wife and him and that he has to find school fees for the child until they complete their education. He said that is why it is better for him to remain in Australia and support his family financially, particularly for the education of his child. He said that if he returns to Fiji, he is past the [retirement age] and it is better for him to be working from here and supporting his family financially and for their education.
Based on the evidence before me, I find that the applicant would be able to live in his family home and receive [Superannuation/pension] support. I find that if the applicant was to return to Fiji now or in the foreseeable future, his economic circumstances on his return would not threaten his capacity to subsist or otherwise amount to serious harm or significant harm as exhaustively defined in s 36(2A) of the Act. I consider that there is no real risk that the applicant will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. I am also not satisfied that there is a real risk that he will suffer arbitrary deprivation of life, or the death penalty.
Does the applicant meet the refugee criterion?
Taking into account the findings set out above and having considered the claims singularly and on a cumulative basis, I am not satisfied that if the applicant returned to Fiji now or in the foreseeable future that he faces a real chance of persecution for a refugee nexus reason.

The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[3]
[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.
I considered whether there was a real chance of persecution if the applicant returned to Fiji now or in the foreseeable future. Based on the evidence before me, I find that there is no real chance that the applicant will be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I find that the applicant does not have a well-founded fear of persecution because there is no real chance that he will be persecuted. As the applicant does not have a well-founded fear of persecution, I find that he is not a refugee within the meaning of s 5H of the Act.
Does the applicant meet the complementary protection criterion?
Having found that the applicant does not meet the refugee criterion, I considered whether on the evidence before me there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[4]
[4] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180].
Based on the evidence before me, considering the applicant’s claims individually and cumulatively, I find that there is no real chance that the applicant will experience serious harm and for the same reasons find that there is no real risk that the applicant will suffer significant harm on his return to Fiji now or in the foreseeable future.
Conclusion
For the reasons given above I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
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.
…

[2023] AATA 4744

14 November 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction