2011716 (Refugee)

[2024] AATA 2938

2011716 (Refugee) [2024] AATA 2938 (12 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  2011716

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Helen Glass

DATE:12 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 July 2024 at 11:55am

CATCHWORDS
REFUGEE – protection visa – Fiji – race – part European – Kailoma – threats of physical harm – political opinion – leaked email – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji applied for the visa on 7 January 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as are outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).

3. The applicant appeared before the Tribunal on 13 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

4. The applicant’s representative did not appear at the hearing.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, 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.

6. 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.

7. 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).

8. 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–5LA, which are extracted in the attachment to this decision.

9. 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

10. 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 OF CLAIMS AND EVIDENCE

11. The issues in this case are whether the applicant’s claimed fear of harm, if returned to Fiji, is well founded for one of the s 5J(1)(a) reasons and whether there is a real chance that the applicant will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

12. The applicant’s nationality is not in issue. He travelled to Australia on a valid Fijian passport and states he is a national of Fiji. The delegate did not indicate any issues with the applicant’s identity or nationality therefore the Tribunal is satisfied the applicant is a national of Fiji and has assessed his claims against Fiji as his receiving country.

    BACKGROUND

13. The applicant’s claims are set out in his application for protection received on 7 January 2020. The applicant was born on [date] in [City 1], Fiji. His mother is mixed European and his father, Indigenous Fijian. In Fiji, a person who is part European and part Fijian is referred to as Kailoma. The applicant claims that he grew up with Indigenous Fijians but was not accepted in mainstream Fijian society because of his different ethnicity and race. He has a European name and his paler skin colour meant that he did not sound or look like an Indigenous Fijian. His father did not keep in contact with the applicant.

14. In support of his application, the applicant provided a detailed statement which he divided under three headings: “Ethnicity and Racial Differences”, “Verbal Abuse and Threats”, and “Freedom of Speech”. The applicant was represented by Karyn Anderson of Clothier Anderson who provided a submission but did not attend the hearing. At the hearing the applicant confirmed the content of his written claim.

15. Under the heading “Ethnicity and Racial Differences” the applicant described that he studied a Bachelor degree in [Discipline 1] at [University 1] and upon completion in 2017, he commenced working as a [Occupation 1] with [Employer 1]. His work involved working in remote areas with Indigenous communities and villages. The land being used for cultivation by [Employer 1] was leased by [Employer 1] and owned by Indigenous Fijians. He was aware that he was considered an outsider by the Indigenous workers. The applicant claims that he was verbally abused and threatened by the workers he dealt with. He was targeted by the Indigenous workers whenever there were any issues arising between the Indigenous workers and [Employer 1]. He became fearful about his safety and as a precaution, recorded abusive calls. He claims that he would receive threats of physical harm over issues, such as when salaries would be paid. This was not his area of responsibility but he was a target for the disaffected workers. In June 2017, through no fault of the applicant, a cheque from [Employer 1] to a group of villagers was delayed, but the applicant was blamed. He received a call from the group leader who threatened to kill the applicant and throw his body into the forest. The applicant had recorded this call and it was translated by the interpreter when played at the Tribunal hearing. It was in the Fijian language. The applicant fears that if he returns to Fiji he might be harmed or killed because he will have no choice but to seek work in the [same] industry. He has a degree in [Discipline 1] and claims that it is very hard to find work in Fiji outside of his profession. The Tribunal notes that the applicant found employment with [Employer 2] as a [Occupation 2] when he left [Employer 1]. He did not report any threatening behaviour in this new employment.

16. The issue is whether the applicant’s fear of harm is well founded. The applicant endeavoured to obtain evidence from his former co-workers and immediate supervisors about the threats he received but was not successful. He claimed that he advised his supervisor of the threats he received. His representative claimed that the applicant fears persecution in Fiji on the basis of his Kailoma (part European) ethnicity and on the basis of his actual or imputed political opinion including opinions expressed by him in the emails sent in April 2019 regarding the operation of [Employer 1], the CEO, [Mr A] and the Fijian government. The applicant fears that if he returns to Fiji he may be physically harmed, tortured or killed by the Fijian government or police, by executives or associates of [Employer 1], by other stakeholders including landowners or by Indigenous groups, and he believes that the Fijian authorities cannot protect him from the harm that he fears. His representative claims that the available country information to a certain extent broadly supports his subjective fears. The Tribunal accepts that the applicant was threatened and his fear of harm is genuine and that the applicant believes that his ethnicity and racial difference made him an obvious target and was a major reason for the threats to his life and this was exacerbated by his employment in a supervisory position with a major [company] and the resultant close association he had with Indigenous Fijian villagers and communities who regarded him as an outsider. In his claim he described that the first thing people would ask after meeting him was which ethnic group he belonged to because of his skin colour.

17. The applicant left [Employer 1] and commenced working with [Employer 2] in April 2019 as a [Occupation 2].  He claims he left [Employer 1] because of “political leadership and corruption, ethnicity and racial differences experienced at work, verbal abuse and threats.”

18. The applicant claims that in the short period after leaving [Employer 1], he engaged in an email exchange with a former CEO of [Employer 1], in which the applicant was critical of the appointment of the new CEO and the role of [Employer 1] executives and the Fijian government. He discovered from former workmates, that this email was leaked and he was warned by these former workmates at [Employer 1] that the executives of [Employer 1] were not happy with the critical views he expressed in the email.

19. The applicant states that he became scared because in the leaked email, he had exposed that the company was controlled by the then Fijian government and that the executives of [Employer 1] and the government or other stakeholders might harm him. He did not feel confident that he would be personally protected by the Fijian authorities. He became insecure and fearful because of the level of torture that he might have to undergo. He feared that if he returns to Fiji he might be harmed or killed by the government because of the content of the leaked email he sent in which he was critical of the CEO and the government. His view was, that the CEO was a political appointment by the Fijian government which owns the company and he was afraid that the CEO may take steps to punish him or harm him for humiliating and opposing him every day.

20. He commenced work with [Employer 2] at another location in Fiji [in] April 2019 but by the end of July 2019, he had left [Employer 2]. He claimed he was insecure and feared being tortured by the police. He came to Australia [in] October 2019.

21. The Tribunal invited the applicant to obtain supporting statements from former colleagues about his claims but he was not able to contact anyone who could support him. It was a matter of surprise to the Tribunal that his immediate supervisors at [Employer 1] did not take protective action towards the applicant after being informed by him of the threats being made to him by the people whose work he oversaw on behalf of [Employer 1].

22. The Tribunal notes that the most recent DFAT Country Information Report on Fiji dated 20 May 2022 at paragraph 3.2 indicates that racial relations in Fiji remain tense and at paragraph 3.5 states “the two main ethnic groups are the Melanesian iTaukei and Indo Fijians. The Indo Fijians are about one third of the population and make up the majority of the business and farming sectors. The remaining main ethnic group, iTaukei, tend to make up the majority of the security forces and public service. Race is an important factor in Fijian society but ongoing government integration efforts are having some effect. Some low-level social discrimination continues with the use of racist stereotypes common among both groups. DFAT assesses that some people of each major ethnic group perpetuate racist stereotypes”. The applicant’s claims arose from him not belonging to either major ethnic group and this, he claims, affected his personal and employment history and made his personal circumstances unique. While his claims cannot be directly corroborated by available country information, corroboration from his employer and colleagues would have given some support to his claims. In the circumstances, the Tribunal cannot accept the applicant’s claims, that as a result of his ethnicity and racial difference, there is real chance he would be persecuted upon his return to Fiji.

23. The DFAT Report also refers to “political opinion”, see paragraphs 3.27–3.30: “[3.27]… DFAT assesses that protesters face a low risk of official discrimination but notes that such discrimination is not impossible. There is a moderate risk of violence in the form of police brutality… [3.30] … Some sources told DFAT that the political environment promotes self censorship. If there are consequences for online speech these are more likely to be in the form of questioning or short term arrests and detention rather than long term incarceration.” The applicant and the former CEO had an email exchange [around] April 2019 critical of the new CEO of [Employer 1] and the role of the Fijian government. The applicant claimed the email exposed vital information about the appointment of the new CEO and the role of the Fijian government and was critical of the [Employer 1] executives, and other stakeholders.

24. It is worrying for the applicant, why, and by whom, the email correspondence between the applicant and the former CEO was “leaked”. Nor did the former CEO seem to entertain any misgivings about the criticisms expressed in the leaked email or recommend caution to the applicant. The applicant expressed concern in his submissions to the Tribunal about the possible ramifications for him on his return to Fiji due to the views expressed in the leaked email. Although understandable in hindsight, this demonstrates that, at the time, he and the CEO were comfortable about expressing controversial views or simply didn’t care who might access them. The applicant’s fears are that he might be harmed or killed by executives of [Employer 1], their associates, the government or other stakeholders including landowners because of the content of the email. The applicant was critical of the CEO claiming that in his view, he was a political appointment by the Fijian government which owns the company and he is afraid that the CEO may take steps to punish him, or harm him for humiliating him and opposing him, and he fears that he may hire someone to hurt him or kill him. He also included some comments in the email about Indigenous landowners that may offend them and he fears that if they read the email they would also seek to harm him as he says Fiji is a small place and news spreads very quickly. He states that if he returned to Fiji and did not return to Suva he will have no choice but to seek work in the [same] industry. He has a degree in [Discipline 1] and claims it is very hard to find work in Fiji outside of his profession. He fears he may be blacklisted from employment elsewhere in Fiji because of the email. Similarly, he states, he cannot seek protection from the government in Fiji as he has criticised the government of the day in his email for [specified government action]. These fears came to the fore once he was alerted by his colleagues that the emails had been leaked. The applicant did not provide any supporting evidence to the Tribunal from his workmates or the former CEO to give substance to the applicant’s misgivings.

25. The applicant expresses fear about his future in Fiji but could not support his fear with any corroborating evidence.

26. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution and therefore the applicant does not meet the refugee criterion in s 36(2)(a).

    CONCLUDING PARAGRAPHS

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

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

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Helen Glass
    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.

    …