1827261 (Refugee) [2023] AATA 476 (19 January 2023)

Last Updated: 23 March 2023

1827261 (Refugee) [2023] AATA 476 (19 January 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1827261

COUNTRY OF REFERENCE: Fiji

MEMBER: Genevieve Hamilton

DATE: 19 January 2023

PLACE OF DECISION: Melbourne

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

Statement made on 19 January 2023 at 3:58pm

CATCHWORDS
REFUGEE – Protection visa – Fiji– political profile – strong supporter of the Social Democratic Liberal Party – applicant not afraid of returning to Fiji – only applied for a protection visa to extend his second stay in Australia – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33


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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant applied for the visa on 29 April 2018. The delegate refused to grant the visa on 27 August 2018.
3. The applicant attended a hearing of the Tribunal on 19 January 2023.

CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
5. The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

Refugee

7. Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also 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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
14. Under s 36(2B) Australia does not have complementary protection obligations where:
    • it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
    • the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
    • the risk is one faced by the population of the country generally and not by the applicant personally.

Mandatory considerations

15. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

16. In his protection visa application the applicant said he was born in Fiji in [year] and is a Fijian citizen, travelling on a Fijian passport, and has a Fijian national identity card. His first language is Fijian, his ethnicity is Fijian. In his address history he states that he was in Australia from [date] September 2017 to[date] October 2017 and that his most recent arrival in Australia was on [date] February 2018.
17. The applicant claimed he left Fiji because he did not feel safe in his country and wanted to start fresh with his life. In Fiji he was threatened and verbally abused by government officials directed by the Bainimarana government for voicing his opinion against the services provided in his local district of [Locality 1] in [Province 1]. He is a strong supporter of the Social Democratic Liberal Party (SOLDEPA) and their plans and policies. People are in fear of voicing their concerns in fear of being arrested. Some people who spoke against the government were taken to military camps around the country where they were further interrogated and harmed. The government is monitoring ordinary citizens to stop them from voicing anti-government opinions that can lead to uprising or national instability. He fears being interrogated and investigated especially because elections would be held that year. He is not safe anywhere in Fiji with the current government in place.
18. With his application the applicant submitted a letter of support from the headman of [a] village, in the district of [Locality 1] in [Province 1], Fiji, [Mr A], dated 11/04/2018. The signatory stated that he supports the applicant’s application for protection in Australia based on his experiences in [Locality 1]. The applicant also submitted a letter dated 15/04/2018 from [Mr B], Pastor of [a] Church, [Locality 1], [Province 1], stating that the applicant is a member of his church and that he supports the applicant’s application for protection in Australia.
19. At the hearing, however, the applicant stated at the outset that he was not in need of protection due to the recent election in Fiji (which resulted in SODELPA becoming part of a coalition government). He said he was not afraid of returning to Fiji. The Tribunal observed that even prior to the election, the country information indicated that political opponents of the governing party were not at risk of serious harm, even if they had a profile. The applicant agreed with this. The Tribunal also observed that the applicant had returned to Fiji in 2017 which suggested he was not afraid at that time. The applicant agreed with this. He said he only applied for a protection visa to extend his second stay in Australia. It was suggested to him, and he did not write the application, and was not even familiar with its contents. He had not had arguments with government officials. He expected the Tribunal would refuse his application.
20. The DFAT Country Information Report on Fiji from May 2022 includes the following information about treatment of opposition political opponents:

DFAT is aware of allegations of police harassing members of opposition parties. In-country sources told DFAT that such incidents are likely the result of orders from senior people in the police, military or government. Police allegedly use the Public Order Act to effect arrests in order to prevent opposition meetings, prevent protests or even shut down debate. Opposition parties use social media regularly but may self-censor.

For example, in 2020 police raided a meeting held by Rabuka in Rakiraki in the north of Viti Levu. The meeting was stopped because Rabuka allegedly did not have a permit for a meeting of more than 10 people. Police were aware of the meeting going ahead as organisers had sought clarification on a permit to operate outside of a curfew implemented to control COVID-19. The dispersal was apparently peaceful and the media reported that police headquarters in Suva had asked Rakiraki police for an explanation of the events.

The events described above have been directed at high-profile people within the opposition. DFAT understands that rank and file and low-profile opposition party members would be much less likely to experience interference. Those involved or perceived to be involved in opposition parties who facilitate high-profile criticism (for example, journalists or social media users) may be questioned by police, but DFAT understands that this is not a widespread problem affecting low-profile party members.

Politics and parliamentary tactics can be energetic and robust. Opposition political parties and figures are public with their views, and efforts to discipline them are in accordance with the law. DFAT assesses that opposition political parties and their members experience a low risk of official violence but notes that discrimination in the form of questioning or restriction on activities is possible.

FINDINGS AND REASONS

21. The Tribunal finds that the applicant is a national of Fiji.
22. Based on his evidence at the hearing, and the country information, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his political opinion.
23. The applicant did not claim to fear persecution for any of the other refugee reasons. The Tribunal therefore does not accept that there is a real chance that the applicant would experience serious harm for the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
24. Having concluded that the applicant does not meet the refugee criterion the Tribunal considered the application of the complementary protection provisions. As the Tribunal has already found that there is no factual basis for the applicant facing a real chance of serious harm in relation to the claims discussed above, similarly it finds that he does not face a real risk of significant harm, as defined, in relation to those claims. He did not make any other claims raising a need for complementary protection.

CONCLUSION

25. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
26. 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 the criterion in s 36(2).

DECISION

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

Genevieve Hamilton
Member