DTK16 v Minister for Immigration
[2020] FCCA 2031
•27 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DTK16 v MINISTER FOR IMMIGRATION & ANOR | [2023] FCCA 2031 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal failed to consider the applicant’s claims – whether the Tribunal misunderstood country information. |
| Case cited: BIL17 v Minister for Immigration and Border Protection (2019) 268 FCR 114; [2019] FCAFC 6 |
| Applicant: | DTK16 |
| First Respondent: | Minister for immigration and Border Protection |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2661 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 1 July 2020 |
| Date of last submission: | 1 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2020 |
REPRESENTATION
| Counsel for the applicant: | Chris Oldham |
| Solicitors for the applicant: | Maddocks Lawyers |
| Counsel for the first respondent: | Mark Hosking |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The application filed on 8 December 2016 and amended on 1 July 2020 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2661 of 2016
| DTK16 |
Applicant
And
| MinIster for Immigration and Border Protection |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
Background to the application
The Minister summarised the background to the application in his written submissions filed on 18 June 2020 as follows:
6.The applicant is a citizen of Fiji [CB 22]. On 24 September 2014, he was granted a Temporary Work (Short Stay Activity) (Subclass 400) visa to accompany his sons who were playing a rugby game in Australia. The applicant entered Australia on that visa on 27 September 2014. The visa ceased on 18 October 2014, but the applicant remained in Australia as an unlawful non-citizen [CB 211 [11]].
7.On 25 November 2014, the applicant applied for a protection visa [CB 9-61]. As part of this application, the applicant provided a statement [CB 60-61].
8.On 27 April 2015, two days before he was interviewed by a delegate of the Minister, the applicant provided a further statement, which contained a number of claims that were not in his first statement [CB 65-68].
9.On 11 June 2015, the delegate refused the applicant’s application for a protection visa, on the basis that the applicant did not satisfy the criteria in s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Act) [CB 99-120].
10.On 16 June 2015, the applicant applied to the then Refugee Review Tribunal for review of that decision [CB 121-122].
11.On 26 August 2016, the applicant provided a written submission to the Tribunal [CB 139-164].
12.On 30 August 2016, the applicant appeared before the Tribunal (constituted by Member [A]) to give evidence and present arguments [CB 174-176].
13.On 21 September 2016, the applicant provided a brief further written submission to the Tribunal [CB 186].
14.On 25 October 2016, the Tribunal notified the applicant of a change in the Member assigned to his application for review [CB 193].
15.On 8 November 2016, the applicant appeared before the Tribunal (constituted by Member [B]) to give evidence and present arguments, with the assistance of an interpreter [CB 204-206].
16.On 16 November 2016, the Tribunal decided to affirm the delegate’s decision [CB 209-225].
The applicant’s initial claims
The Tribunal summarised the applicant’s initial claims in its reasons for decision dated 16 November 2016 as follows:
Claims made in the applicant’s written application for protection dated 25 November 2014
12.The applicant stated that he was an active and peaceful member of SODELPA (the opposition political party in the Fiji) and his political opinions were different from the present government in Fiji, particularly in respect of the disbanding of the great Council of Chiefs by Prime Minister Bainamarama. He also thought his church views were different from those of the Prime Minister who is making many changes to “our lifestyle” with which he did not agree. He thought the Prime Minister was taking away people’s daily subsistence and other rights. In contrast he noted many vast differences in the Australian government which is a true democratic government where citizens have the freedom to express their views and Australian police are very just and fair and there is no noticeable favouritism or corruption in the police force. His written statement was almost identical to that of his son’s.
Claims made in the applicant’s written statement dated 22 April 2015 and provided to the Department on 27 April 2015
13.The applicant provided a second statement of claims to the Department in which he stated that on 8 June 2013, while he was preaching at an open-air gathering in Nadi on the subject of the authority God has placed in the Chiefs in Fiji, soldiers were listening and soon after his preaching ended he was ordered into the soldiers’ van. They took him to a military camp where he was verbally abused and punched and kicked in his stomach and back. He was released after being warned not to campaign against the government again or to talk about what had happened to him. He walked about 7 km from his camp to his home.
14.On 2 November 2013 he was preaching to a similar type of gathering on the same sermon. Members of army intelligence were also at that meeting. After the service he and his son were stopped by a minibus. They were forced into the bus where soldiers verbally abused him and slapped his son. When they reached the camp he was kicked and punched and forced to do exercises he could not do. His son objected and was slapped and punched several times. He was warned not to preach again at any church gatherings or at any open-air service or to tell anyone what had happened. They walked home. He had a bleeding mouth and two loose teeth which had to be removed three days later.
15.On the day of the election, 17 September 2014, he was in charge of the Sigatoka polling station. At the end of voting he gave the staff a break before counting the votes. While he was alone he was approached by soldiers in civilian clothing who ordered him to include an unmarked ballot box in his counting. He refused to do so. He called the police officer on duty but the police officer refused to come because he was frightened of the soldiers. After the counting, the applicant was again approached by the same soldiers who told him to give his reports to his assistant and then ordered him to go to their office. He was assaulted again, kicked and hit on his legs, knees and calves. He was verbally abused and warned not to mention anything about the incidents to his relatives or the media or his family would suffer.
16.On his last day in Fiji before departing to Australia on 27 November 2014 he told his relatives what had happened. The soldiers heard what he had said and warned his wife and daughter that if he returned to Fiji he would be taken straight to prison and tortured. They also said if he disclosed in Australia what had happened to him in Fiji his family would suffer. The applicant believed he’d been victimised and his family and he were in danger of further harassment, abuse and torture. He also wanted his wife and three children who still remain in Fiji to have protection in Australia.
Ground of review
The applicant sought leave to amend his grounds of review at the final hearing on 1 July 2020. The Minister consented to an order, which was made, that the applicant have leave to amend his grounds of review to read as follows:
The Tribunal fell into error by its failure to perform its statutory function of undertaking a review of the refusal of the application by the delegate of the Minister.
Particulars
a.The Tribunal failed to consider a claim that the applicant would face harm in Fiji because of his support for SODELPA in Australia.
b.The Tribunal misunderstood the relevance and importance of the COISS country information assessment report dated 29 July 2016.
c.The Tribunal failed to consider a claim that the applicant would face harm in Fiji because of his association with Christian secessionists overseas.
The applicant’s and the Minister’s written submissions addressed the grounds as amended, save that, in his written submissions, the applicant withdrew:
a. in paragraph 14, the words, in this context can be characterised as a failure to accord procedural fairness to conduct the review and exercise its jurisdiction; and
b. all of paragraphs 19, 20, 21 and 23.
Particular (a): support for SODELPA in Australia
The applicant argued that the Tribunal had failed to consider a claim that the applicant faced a real risk of persecution in Fiji by reason of his support of the Social Democratic Liberal Party (“SODELPA”) in Australia. The Minister did not dispute that the applicant had made the claim, but argued that the Tribunal had considered it in paragraphs 86 and 88 of its reasons for decision. Those paragraphs, with the addition of paragraph 87, are as follows:
86.The applicant has claimed that he supported the SODELPA party in Fiji prior to the elections. His support consisted of voting for them in the last election and setting up services and conducting prayers before meetings in Fiji. He has recently continued this role in the Victorian chapter of the SODELPA party. He had no active political role in the SODELPA party in Fiji or Australia other than conducting prayer services at meetings.
87.The Tribunal had regard to the DFAT Fiji Country Report, which states that Fiji's Constitution guarantees freedom of speech, expression and publication, assembly and association:
3.73 In practice the environment for public expression of political opinion was more open in late 2014 than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example to discuss the outcomes of the 2014 election. At times such gatherings include robust political criticism of Fiji First and the government, though most commentators are circumspect and any public criticism of Prime Minister Bainimarama or Attorney General Sayed-Khaiyum.
3.74 However, some uncertainty remains about the permissible limits on public commentary. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFA T assesses that those at risk are high profile public figures, including the leaders of organisations which might to be seen to challenge the government's authority or undermine its legitimacy. 3
88.The Tribunal is satisfied that the applicant is not a high profile public figure. Whilst the Tribunal accepts that the applicant is a leader in his church it is not satisfied that the Assemblies of God church is seen as an organisation which is seen to challenge the government's authority or undermine its legitimacy. The Tribunal is not satisfied that, given the applicant's minimal role in SODELPA both in Fiji and Australia that he has a political profile as a supporter of an opposition party that would bring him to the adverse attention of the authorities or the military in Fiji.
3 Department of Foreign Affairs and Trade Country Report Fiji, 14 April 2015,pp.16-17
The applicant also argued that the Tribunal failed to deal with the Department of Immigration and Border Protection Country of Origin Information Services Section (“COISS”) report in its consideration of this issue. The COISS report is annexure RP-3 to the affidavit of Raphael Perez filed on 5 June 2020. That affidavit was not sworn, in the circumstances of the COVID-19 pandemic, but the Minister took no issue with that.
The COISS report does not mention SODELPA. It concerns the Pacific Indigenous Samaritan Association Inc (“PISAI”) and the Fiji Native Government in Exile. The COISS report noted on the last page that:
The Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji.
However, the Tribunal’s findings about the applicant’s role with SODELPA were such that there was no reason to suppose that the applicant would be accused of inciting sedition or urging political violence. Consequently, there was no need for the Tribunal to refer to the COISS report in the context of its consideration of the applicant’s claims relating to SODELPA.
The first aspect of the ground of review is not made out.
Particular (b): misunderstanding the COISS report
This particular concerned the following paragraphs of the Tribunal’s reasons for decision:
d) membership of PISAI or the Fiji Native Government in Exile groups in Australia
94.The applicant provided the Tribunal with a letter of support for his application from Ms Oni Kirwin who stated he was a financial member of the PISAI and Fiji native Government in Exile. At the second Tribunal hearing, the applicant said that he was not an active member of either of these organisations and “regrets getting a report from them”. However, the applicant stated at the first Tribunal hearing that although he is not an active member of either organisation he comes from (name of province omitted) and the issues concern the people there. His cousin and brother are chiefs and were jailed in 2015. He had heard from his cousin about the organisation in Australia. He has made a financial contribution to the organisation and attended one meeting in February 2016. The Tribunal therefore gave consideration to the applicant’s claim of harm as a result of his imputed political opinion as a result of being a financial member of PISAI and the Fiji Native Government in Exile in Australia, attending one meeting, coming from one of the provinces involved in a secessionist movement and his cousin and brother, a chief, being subsequently jailed.
95.The Tribunal had regard to advice dated July 2016 from the Department of [Im]migration and Border Protection (DIBP) [ie, the COISS report] in Fiji in response to the Tribunal’s request for information related to Ms Kirwin’s organisations PISAI and the Fiji Native Government in Exile which stated that as far as Post is aware neither PISAI or the Fiji Native Government in Exile are known in Fiji and neither organisation or memberships of those organisations appear to be known in Fiji: (emphasis added)
“The Fiji Government has demonstrated that it is willing to arrest and prosecute persons it accuses of inciting sedition or urging political violence in Fiji. In the case of a person returning to Fiji was accused of or suspected to have been involved in such activities (sic), it is possible that they would be arrested and prosecuted for such activities.”4
4 DIBP, Country of Origin Information Services Section (COISS) Request CI 160713115600374, Fiji: Country Information Request: PISAI and Fiji Native Government in Exile, 27 July 2016
e) kinship relationship with people arrested for involvement in the secessionist movement in Nadroga-Navosa province
96.DIBP [in the COISS report] also provided background to the ‘secessionist’ movement in Ra and Nadroga-Navosa provinces as follows:
1. In August 2015, a group of individuals apparently associated with a previously declared ‘autonomous Christian State’ based on a traditional Fijian province – the Ra Sovereign Christian State – were arrested and charged with sedition and urging political violence (section 65(1) of the Fiji Crimes Decree 2009 refers, for which the maximum penalty is 15 years imprisonment). This group had reportedly been conducting ‘military-style training’.
2. In addition, two other groups of arrests occurred in 2015 on the charges of inciting sedition – one in early 2015 and another in August 2015, immediately after the arrests noted above. Those arrested in these two groups were charged with sedition and causing communal antagonism (section 65(2) of the Fiji Crimes Decree 2009 refers, for which the maximum penalty is 10 years imprisonment). Those arrested were also apparently associated with two ‘autonomous Christian Sates’ – the Ra Sovereign Christian State referred to above and the Nadroga-Navosa Sovereign Christian State which had been declared earlier in 2015.
3. We understand in total the three groups of arrested persons included more than 60 people. In all three instances, those charged were released on bail and legal processes remain underway. Most recently, sixteen of those accused with causing communal antagonism (that is, not those charged with urging political violence) appeared in court on 22 July 2016. The matter was however rescheduled with the trial now expected in February 2017. Bail was extended until that time5.
97.The Tribunal notes that the arrests and charges were made in 2015 after the applicant had departed Fiji. He has stated that he had never been actively involved in politics in Fiji other than as a supporter of SODELPA as described above. SODELPA publicly denied any involvement in the alleged secessionist movements. There is no evidence before the Tribunal that the applicant’s cousin or brother is one of the 16 people arrested and charged. However, the Tribunal is satisfied that even if the applicant’s cousin or brother have been charged, there is no evidence that family members or relatives of those arrested have been accused of crimes of sedition, urging political violence or causing communal antagonism.
98.Based on the above finding that the applicant has no political profile and the above country information, the Tribunal is not satisfied that the applicant would be of any adverse interest to authorities or the government in Fiji as a result of his nominal membership of either PISAI or the Fiji Native Government in Exile or his kinship with someone who may have been arrested in Nadroga-Navosa province in Fiji.
5 Ibid.
The applicant submitted that:
16.The COISS Information did not however, support a finding that PISAI and Fiji Native Government in Exile were not known in Fiji. The COISS Information referred to at [CB-223 at paragraph 96] surmised that the Christian separatists were the PISAI and Fiji Native Government in Exile. It is submitted that this information had to be considered together. There was a clear risk set out in the country information for persons (not necessarily high-level political figures) returning to Fiji of arrest and prosecution, if such persons are suspected to have been involved in such activities (sedition or inciting political violence).
The Minister submitted that:
26.The third argument is that the Tribunal misunderstood the COISS information. The applicant says that the COISS information “did not … support a finding that PISAI and Fiji Native Government in Exile were not known in Fiji”, and claims that the COISS information instead “surmised that the Christian separatists were the PISAI and Fiji Native Government in Exile” [AS [16]].
27.This argument is not supported by the COISS information. That information relevantly said (emphasis added):3
We have not been able to determine whether the Fiji Native Government in Exile is known in Fiji – an internet search returned only one hit: Oni Kirwin posting the outcome of supposed executive elections on her facebook page in February 2016. Likewise, we have not been able to determine whether PISAI is known in Fiji. A separate internet search returned a PISAI facebook page, claiming that the organisation was founded in February 2011 as a ‘community organisation with a mission to share the Gospel and the principles of love, faith and hope to empower those in need’. Media coverage in the Fiji Sun at the time of the August 2015 arrests mentioned Oni Kirwin as ‘claim(ing) to have founded a Pacific Indigenous Samaritan Association’ in Australia. It also reported that Oni Kirwin was seeking to raise funds ‘for those accused in the alleged sedition’.
Post was unable to discover evidence of links between either the Fiji Native Government in Exile, PISAI, any of the three groups of arrested persons or the two ‘autonomous Christian states’.
28.The “arrested persons” referred to in the last sentence quoted above were the Christian separatists arrested on the charges of inciting sedition.4
29.The applicant’s evidence was that he was not an active member of PISAI or the Fiji Native Government in Exile, but that he had made a financial contribution to the organisation and attended one meeting in February 2016 [CB 223 [94]].
30.It was plainly open for the Tribunal to conclude, based on the COISS information referred to above, the applicant’s minimal involvement with PISAI and the Fiji Native Government in Exile, and its earlier finding that the applicant had no political profile [CB 222 [88]], that it was “not satisfied that the applicant would be of any adverse interest to authorities or the government in Fiji as a result of his nominal membership of either PISAI or the Fiji Native Government in Exile” [CB 224 [98]].
3 Affidavit of Rafael Perez [filed] on 5 June 2020, Annexure RP-3 at p 2-3.
4 Affidavit of Rafael Perez [filed] on 5 June 2020, Annexure RP-3 at p 2.
In addition, the applicant argued orally that the fact that PISAI and the Fijian Government in Exile could not be found in internet searches did not mean that they were not known in Fiji. That may be correct, but the Tribunal’s summary of the information was a little different and was that:
as far as Post is aware neither PISAI or the Fiji Native Government in Exile are known in Fiji and neither organisation or memberships of those organisations appear to be known in Fiji.
That was an accurate summary, and it was open to the Tribunal to use that information to determine whether the applicant faced a real risk of persecution.
The applicant also argued that the Tribunal had placed undue emphasis on political prominence. In support of that argument, the applicant relied on BIL17 v Minister for Immigration and Border Protection (2019) 268 FCR 114; [2019] FCAFC 6 where the court said:
32Therefore, there are a number of problems with this reasoning. First, it treats the claim as if it depended upon the position in relation to general political opposition in Fiji. It did not. Second, it treated the older country information as if it was relevant to the risk of mistreatment of those returning to Fiji who had been supporting Christian separatist views in Australia. It was not. Third, it treated the claim as if it depended upon demonstrating prominence within a political organisation. It did not. The claim relied upon the recent country information concerned with Christian separatists and their activities in Australia and the consequences for those persons if they were to return to Fiji. Yet that country information was not addressed in this part of the reasoning.
…
39To this point the whole reasoning depends upon the assertion (unsupported by any of the country information) that the risk to those associated with supporting Christian secessionists may be confined to Ms Kirwin and senior leaders of her organisations as well as those involved in the movement in Fiji. As we have noted, the country information provided by DFAT and quoted by the Tribunal at the relevant point in its reasons was not confined in this way.
…
62Having regard to the reasoning pathway adopted by the Tribunal, it did not pay attention to the relevant country information concerning the likely treatment of people who were known to be or suspected of being Christian separatists on their return to Fiji. In substance, it did not consider that information. It did no more than assert without any foundation, and contrary to the terms in which the more recently country information was expressed, that the information about the risk of harm to Christian separatists returning to Fiji may be confined to certain identified leaders.
The Minister submitted that BIL17 was readily distinguishable from the present case, because the claims made in BIL17 were quite different to the claims made in the present case. The claims in BIL17 are set out in the judgment in that case as follows:
12The 19 August 2016 submission included the following statements by Ms Kirwin:
…
(7) The father was “one of the leaders in this group, Fiji Native Government in Exile, and is often a front-liner in our protests”, including in Liverpool on 17 October 2015, in Canberra on 26 January 2016, outside the Department of Immigration earlier in 2016, and on numerous visits to the NSW Parliament. The father had also been MC at members’ meetings, that he and his wife were group leaders in their prayer-intercessory group, and as former employees in government departments in Fiji, they were also able to give professional support and advice when needed. Ms Kirwin stated that, as they had held senior positions in government they were more targeted by the Bainimarama regime, and “Fijian government who recognise them straight away and try to show them up whenever they are seen with me, or seen attending our meetings”.
(8) The father’s face is “almost synonymous” with the FNGE, and his whole family was involved in the organisation. She said that they are recognisable in the many photos posted on Facebook and the internet.
…
29The Tribunal began the main part of its reasoning by accepting the factual basis for the claims to protection that were made by the appellants. It said (at para 134):
The Tribunal is satisfied on the evidence before it that the applicants have attended several protests in Australia criticising the Bainimarama government and its policies. The Tribunal is satisfied that the applicants are active members of M[s] Kirwin’s two organisations, PISAI and the Fiji Native Government in Exile. The Tribunal is further satisfied that evidence of the applicants’ activities has been published on Facebook and in the mainstream media reporting of at least one of the protests in Australia and Fiji. The Tribunal is also prepared to accept that the applicants may have been recognised whilst undertaking such activities by close associates of the Prime Minister with whom the applicants worked in Fiji’s civil service, including Jo Bainimarama and Inia Seruiratu.
By contrast, the Minister submitted that the applicant in the present case had paid a membership subscription once for each of the PISAI and the Fijian Native Government in Exile and had attended one meeting.
I accept that BIL17 is distinguishable. The circumstances of the applicant in the present case and the applicant in that case are vastly different.
In these circumstances, there was no reason for the Tribunal to consider that the extract from the COISS report set out above had any bearing on the applicant’s circumstances.
All in all, I am not persuaded that the Tribunal misunderstood or misapplied the COISS report, for the reasons I have stated above and for the reasons expressed by the Minister as recorded above.
Particular (c): association with secessionist movements
The applicant submitted that the Tribunal failed to deal with a claim that the applicant was at risk because he was associated with secessionist movements. The applicant said in his written submissions:
17.The Tribunal did not consider, at all, the position of the Applicant returning to Fiji given his association with Christian Secessionists generally overseas or with persons accused of inciting sedition or urging political violence in Fiji as set out in the country information. It is submitted that the Tribunal should have done so, given that the relevant part of the COISS Information – which the Tribunal was bound to have regard to as the most recent information – stated that it is possible that a person returning to Fiji accused or suspected to have been involved in such activities (seen in context of Christian Secessionist activities) might possibly be arrested and prosecuted in Fiji.
18.Furthermore the Tribunal decision focuses on what has happened as opposed to what might happen if the Applicant returns to Fiji because of his association with PISAI and Fiji Native Government in Exile in Australia seen in the context that he is from (name of province omitted) and related to people who were imprisoned for political opposition. It is submitted that the Tribunal simply did not engage with the relevant country information about the likely treatment of people returning to Fiji in similar situations that are known to be or suspected to be Christian Separatists.
The Minister said in his written submissions on this issue:
32.The applicant did not clearly articulate any claim to have been associates with Christian secessionists.
33.To the extent that such a claim might be said to have clearly emerged from the evidence about the applicant’s involvement with SODELPA, PISAI or the Fiji Native Government in Exile, the Tribunal considered it. After setting out country information about the Christian separatists arrested in 2015 [CB 223 [96]], the Tribunal said (emphasis added) [CB224 [97]]:
The Tribunal notes that the arrests and charges were made in 2015 after the applicant had departed Fiji. He has stated that he had never been actively involved in politics in Fiji other than as a supporter of SODELPA as described above. SODELPA publicly denied any involvement in the alleged secessionist movements. There is no evidence before the Tribunal that the applicant’s cousin or brother is one of the 16 people arrested and charged. However, the Tribunal is satisfied that even if the applicant’s cousin or brother have been charged, there is no evidence that family members or relatives of those arrested have been accused of crimes of sedition, urging political violence or causing communal antagonism.
Based on the above finding that the applicant has no political profile and the above country information, the Tribunal is not satisfied that the applicant would be of any adverse interest to authorities or the government in Fiji as a result of his nominal membership of either PISAI or the Fiji Native Government in Exile or his kinship with someone who may have been arrested in Nadroga-Navosa province in Fiji.
34.The Tribunal’s findings about the applicant’s involvement with SODELPA, PISAI and the Fiji Native Government in Exile fell well short of a finding that the applicant would be accused or suspected of involvement in inciting sedition or urging political violence in Fiji.
The applicant also noted in oral argument that the COISS report said that:
The AAT is aware that Prime Minister Bainimarama was reported in the Australian media to have threatened Fijians who support a Christian secessionist movement during his visit to Australia in August 2015.
That may be so. However, the evidence in the present case was that the applicant did not support a Christian secessionist movement. The Tribunal said at paragraph 88 of its reasons for decision:
… Whilst the Tribunal accepts that the applicant is a leader in his church it is not satisfied that the Assemblies of God church is seen as an organisation which is seen to challenge the government's authority or undermine its legitimacy. …
The Tribunal said at paragraph 97 of its reasons for decision:
SODELPA publicly denied any involvement in the alleged secessionist movements.
The applicant in the present case did not make an express claim that he supported a Christian secessionist movement. Nor did a claim arise from the materials that he supported a Christian secessionist movement. Therefore, the Tribunal was not obliged to consider any such claim.
In any event, the Tribunal did consider whether the applicant’s involvement with SODELPA could be construed as support for a secessionist movement, but noted that SODELPA had publicly denied any involvement in secessionist movements. The Tribunal considered whether the applicant’s minimal involvement with PISAI or the Fijian Native Government in Exile might lead to him being of adverse interest to the Fijian authorities, but concluded that it would not. The Tribunal considered whether the applicant’s relatives allegedly being arrested might impact on the applicant, but concluded that it would not, noting that there was no evidence that they had been arrested at all, and no evidence they had been arrested for sedition and such like.
In these circumstances, and as explained by the Minister in the extract above, the Tribunal considered the claim about the secessionist movement to the extent that was required.
Conclusion
As the applicant’s grounds of review have not been made out, the application will be dismissed with costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 27 July 2020
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