2404007 (Refugee)

Case [2024] AATA 2141

2404007 (Refugee) [2024] AATA 2141 (13 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2404007

COUNTRY OF REFERENCE:                   Fiji

MEMBER:David James

DATE:13 May 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 13 May 2024 at 9:45am

CATCHWORDS

REFUGEE – protection visa – Fiji – violence from police and criminal gangs – conviction for assaulting a police officer – physical assault – detention – economic conditions – employment – state protection – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 411, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962       

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2024 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 of citizen of Fiji, applied for the visa on 21 November 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.  The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer…

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AGLC
2404007 (Refugee) [2024] AATA 2141
Case
[2024] AATA 2141
Decision Date

CaseChat Overview and Summary

The applicant sought judicial review of a decision by the Refugee Tribunal to affirm a delegate's refusal to grant a protection visa. The applicant claimed to fear returning to Fiji due to violence from police and criminal gangs, and alleged a conviction for assaulting a police officer. The Tribunal considered documentary evidence, including the applicant's visa application, correspondence from the Department requesting further information, and letters from the applicant's father and another individual.

The core issues before the court were whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under the Act, and whether there was a real chance of such persecution upon return to Fiji. Alternatively, the court had to determine if there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal to Fiji, the applicant would suffer significant harm as defined in the Act. The Tribunal was required to consider the applicant's claims in light of Ministerial Direction No. 84, relevant guidelines, and country information from the Department of Foreign Affairs and Trade (DFAT).

The Tribunal noted that the applicant lodged their protection visa application approximately seven months after arriving in Australia and had not provided the detailed information requested by the Department regarding the alleged violence, including specific dates, locations, and identities of perpetrators. The delegate's decision, which was affirmed by the Tribunal, found the applicant's claims to be generic and lacking substantial detail to indicate an adverse interest from Fijian police or gangs. The Tribunal also considered DFAT country information which indicated that Fiji is generally stable and secure, with low rates of violent and organised crime, although it acknowledged reports of police violence and corruption, noting that such incidents are often investigated and that the Fiji Police Force has the capacity to protect individuals. The Tribunal invited the applicant to a review hearing to provide oral evidence, but noted that a decision might be made without further notice if the applicant did not attend.

The Tribunal affirmed the delegate's decision to refuse the protection visa. It was not satisfied that the applicant met the criteria for being a refugee, nor that there were substantial grounds to believe the applicant would suffer significant harm upon return to Fiji, primarily due to the lack of specific and substantiated claims from the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Fiji, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 21 November 2023;·The Department’s s 56 of the Act, ‘Request for more information for a protection visa application’ correspondence of 16 January 2024, in which the ‘Request Details’ provided that:I now invite you to provide further information regarding the following claims in your application and other matters that I may take into consideration in assessing your claims.Delay in lodgementIn your application, you claimed that you fear returning to Fiji because of police and gang violence. However, you did not apply for a Protection visa until approximately 7 months after arriving in Australia. Due to the length of time between your arrival in Australia and when you lodged your application, I am concerned about the genuineness of your protection claims. Therefore, I am inviting you to provide any information about why so much time passed before you lodged your application.Claims lacking detailYour statement indicated you experienced violence from police officers and gang members in Fiji. Your claims lack key details such as dates and locations of events. You have also not provided any evidence in support of these claims.Due to your lack of detail or evidence, I am concerned about the genuineness of your protection claims. Therefore, to assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and documentary evidence about what happened to you in Vanuatu including dates and locations of events.● Provide details and identities of the group and group members that you engaged in street fighting with. How and when did you become involved with this group?● Provide details and evidence of being arrested and questioned by police. Provide information such as an arrest warrant, incident report, police report or police notice.● Provide details and evidence of harm done to you by the police.● Did you seek medical treatment at any stage? If so, provide details of time, location, medical assessments and any evidence of being treated by health professionals. And if not, why did you not seek medical attention?● Provide details of the harm you experienced from your friends and elders and their identities.● Provide details and information about coming to Australia. How did you protect yourself in Fiji from the police and gang violence until you came to Australia?● Provide details and evidence the threat against you will be ongoing if you return to Fiji.If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.Any information that you provide in response to this letter will be taken into account in the decision on your application.Please note that a decision on your application may be made on the information in your application and on any response to this letter, and you may not be given another opportunity to provide more information about your claims.·The applicant’s application for review of 4 March 2024 and the annexed decision record of 26 February 2024; ·The administrative and movement records of the Department relating to the applicant; ·A copy of a letter emailed to the Tribunal on 1 May 2024, under the hand of [name] (applicant’s father), dated 1 May 2024, in which the writer states that they witnessed the applicant being assaulted and abused by corrupt police in Fiji in September 2017; and·A copy of a letter emailed to the Tribunal on 2 May 2024, under the hand of [Person A], dated 1 May 2024, in which the writer states they witnessed the applicant being assaulted and abused by corrupt police in Fiji in September 2017.Claims for protection

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegate’s decision The delegate’s decision of 26 February 2024, to refuse the protection visa was made on the information before the delegate. The delegate found, noting that the applicant had not as of the date of assessment provided any additional information in relation to their claims including the additional information specified in the s 56 of the Act invitation, that the applicant’s claims were generic and lacked any substantial detail which would indicate the applicant was previously, or would in the future be of adverse interest to the Fijian police or any gangs in Fiji. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Invitation to attend a hearing On 8 April 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 9 May 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it 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. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. Country information The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including ‘Security Situation’ at 2.34 where it is reported that: Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).Under the heading of ‘Police at 5.6 to 5.16, it is reported that:The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’. Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation, and prevention. Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence. According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported. Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses. In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident.A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest.With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube. Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them. And under the heading of ‘Judiciary and access to law’ at 5.17 to 5.20, it is reported that:Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021. The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. It provides services in family, criminal and civil law and may file out briefs to private lawyers who may volunteer their time and expertise. Eligibility criteria apply, with an annual income threshold of FJD15,000 (about AUD10,000). The Commission has recently increased its geographic outreach and more people, including in rural and maritime areas of the country, are now able to access its services. There may be few other lawyers practising in more remote areas, which may in practice mean that people cannot access representation, especially where Legal Aid is already acting for the other party. The quality of legal services provided by legal aid is variable.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), 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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Fiji, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 21 November 2023;·The Department’s s 56 of the Act, ‘Request for more information for a protection visa application’ correspondence of 16 January 2024, in which the ‘Request Details’ provided that:I now invite you to provide further information regarding the following claims in your application and other matters that I may take into consideration in assessing your claims.Delay in lodgementIn your application, you claimed that you fear returning to Fiji because of police and gang violence. However, you did not apply for a Protection visa until approximately 7 months after arriving in Australia. Due to the length of time between your arrival in Australia and when you lodged your application, I am concerned about the genuineness of your protection claims. Therefore, I am inviting you to provide any information about why so much time passed before you lodged your application.Claims lacking detailYour statement indicated you experienced violence from police officers and gang members in Fiji. Your claims lack key details such as dates and locations of events. You have also not provided any evidence in support of these claims.Due to your lack of detail or evidence, I am concerned about the genuineness of your protection claims. Therefore, to assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and documentary evidence about what happened to you in Vanuatu including dates and locations of events.● Provide details and identities of the group and group members that you engaged in street fighting with. How and when did you become involved with this group?● Provide details and evidence of being arrested and questioned by police. Provide information such as an arrest warrant, incident report, police report or police notice.● Provide details and evidence of harm done to you by the police.● Did you seek medical treatment at any stage? If so, provide details of time, location, medical assessments and any evidence of being treated by health professionals. And if not, why did you not seek medical attention?● Provide details of the harm you experienced from your friends and elders and their identities.● Provide details and information about coming to Australia. How did you protect yourself in Fiji from the police and gang violence until you came to Australia?● Provide details and evidence the threat against you will be ongoing if you return to Fiji.If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.Any information that you provide in response to this letter will be taken into account in the decision on your application.Please note that a decision on your application may be made on the information in your application and on any response to this letter, and you may not be given another opportunity to provide more information about your claims.·The applicant’s application for review of 4 March 2024 and the annexed decision record of 26 February 2024; ·The administrative and movement records of the Department relating to the applicant; ·A copy of a letter emailed to the Tribunal on 1 May 2024, under the hand of [name] (applicant’s father), dated 1 May 2024, in which the writer states that they witnessed the applicant being assaulted and abused by corrupt police in Fiji in September 2017; and·A copy of a letter emailed to the Tribunal on 2 May 2024, under the hand of [Person A], dated 1 May 2024, in which the writer states they witnessed the applicant being assaulted and abused by corrupt police in Fiji in September 2017.Claims for protection