CDA19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Protection claims 12 Included in the appeal book is a copy of her application and a statement of claims which ran to 80 paragraphs. She attended an interview with the delegate on 17 June 2016. 13 The delegate summarised CDA19's claims made in the statement of claims in its protection visa assessment as follows (as written): • Twice in July 2014 the Fijian military forcefully entered her home. • In total, the military entered her home three times and the third time which occurred on 14/08/2014 was a 'really big one'. • At first the military asked what the meetings were about and she told them they were church meetings. • She was told it was illegal to have meetings and she told them the meetings were just for church, but the military didn't believe her and thought the meetings were about something else. • She lived close to a village which supported the SDL and only a couple of houses would have voted for the Fiji First party. • Since Frank Bainimarama won the election he was offended by people who did not vote for him and released [scil realised] that people in her area did not vote for him. • So when the military came to her house in August 2014, they broke the door and accused them of not having church meetings, but were having meetings about something else and using the church to cover up. • She was warned not to have another meeting again or there will be consequences. • After travelling to Australia, she returned to Fiji and continued her church work. • She thought there would be charges [scil: changes] after the election but there were none; however when she holds church meetings the military sees them and continued to think that she is plotting to overthrow them. • The military still monitor her and asked people about her but have not approached her because her meetings have been held elsewhere. • It was mentioned at her church about the Christian State and the pastor communicate he did not want to put their members at risk, but only to be aware what is going on with the military. • If she returns to Fiji and continues to hold religious meetings, the same thing will happen and her meeting will be stopped. 14 By way of elaboration, CDA19 said the following in her statement of claims: (a) In relation to the 14 August 2014 interaction with the military, CDA19 claimed that the military stormed the house with guns and told everyone to leave and not have the meeting. They pushed her husband when he tried to tell them it was just a church meeting and [CCW19] tried to help but a soldier grabbed him by the shirt and shoved him away. [CCX19] was also there. Everyone was upset, they just "freaked out" and were "just so scared". CDA19 tried to tell the soldiers that it was just a church meeting that was held every Thursday. Her husband was concerned for everyone's safety and told them to leave. The military warned them never to have that meeting again or they would take the consequences. CDA19 and her husband talked about it and they made a vow that they never give up their position as church elders and what they were doing in the church while they were in Fiji; (b) CDA19 claimed that her first trip to Australia with her husband was for a holiday following his retirement. I note that the dates given for that trip under the heading "Applicant's history/migration history" in the protection visa assessment were before July-August 2014. The second trip was to attend a conference and have a holiday. I note that the dates given for the second trip under the heading "Applicant's history/migration history" in the protection visa assessment were after August 2014; and (c) On both occasions, they intended to return to Fiji. Her husband died while they were in Australia on the second trip. She returned with CCX19 to Fiji to bury her husband. She was there for about six months, but she did not do well following her husband's death. She resigned from her job, she suffered from high blood pressure and she had a minor stroke. 15 In her statement of claims at 72)-76) CDA19 said: 72) I had help from other families. The other families in our group decided to take the burden off me; they decided to have meetings in their places. 73) The military were aware that we continued with the meetings; we would see them outside the house. They did not come in like they were before, but they were always there around us. But I know this was just because we were having the meetings at other places. And we know that in the future they will come in again to our place if I am having the meetings again myself; which I have to do so because my husband and I promised each other we will do it. Now that I am getting stronger again after his death I would go back to having our meetings. 74) It was mentioned in our church about the Christian State that is going on in Ra and Nadroga but our pastor did not want to put our church and our families at risk, but he said for us to always be aware of what is going on with the military. 75) And I know that the military and Bainimarama are by now going to be even more suspicious again about religious meetings by everyone in Fiji, because of the Christian state people. 76) If I go back to Fiji and I continue to hold the religious meetings, I know the same thing will happen; they will be trying to break up the church; trying to break up our meetings. It's not because of the religion; it's because they believe that we are plotting against the government. 16 Among other things, the delegate said the following in the protection visa assessment (as written): I asked the applicant why she cannot return to Fiji and she stated that she fears the authorities will arrest her and take her to the camp and hurt her. Her oral testimony did not venture far from her written claims and she indicated that the authorities will arrest her because they believe she is plotting against them. She stated that she has been a leader in a church group of around 25-30 members for 20 years with her late husband and that the military has raided their meeting twice as the [sic: they] believed that the meetings were politically motivated. The applicant further stated that because of the emergence of the Christian State, the authorities in Fiji are now more suspicious of Christian group meetings. She stated that before her husband died she made a promise to continue their Christian work through spreading the word and that if she were to return to Fiji she would do so. I asked the applicant if she had any public meetings and the applicant stated that their meetings were not public but held at the homes of their members. I asked the applicant if she was politically motivated and she stated "no" and further indicated that although she cares about the state of Fiji as a whole, she does not care about the overall political environment. I asked the applicant if she had any comments surrounding the Christian State as it was mentioned in her written claims and the applicant stated that she does not support the Christian State and is not motivated to support their cause. The applicant's oral testimony indicated that she will continue her religious activities in Fiji and that she will be targeted by the authorities because she lives in an area thought to be a [SODELPA] supportive area. She stated that this belief led the authorities to be suspicious of her church activities at home and she will be arrested and harmed because of her church meetings. The applicant's testimony indicated that she is not politically motivated and that she is not part of any political groups in Fiji or Australia. Instead she has claimed that she will continue her Christian activities in Fiji and that because she lives in a politically sensitive area, she will be targeted by the authorities because of the current political environment in Fiji. I put to the applicant that the country information before [me] does not support her claims for protection, and that country information indicates that majority of the people in Fiji democratically elected the current government, and the authorities in Fiji no longer raid people's homes. I further put to the applicant that country information indicates that the authorities have further allowed groups to freely criticise their government. The applicant stated that the reports are not true. 17 CDA19 noted that the delegate found that "the country information before me does not indicate that citizens who are critical of the government, or are members of opposing political parties are harmed unless they are considered to be high profile or vocal" and submitted that the country information on which the delegate relied referred to opposition parties, not those who were perceived to be members of a separatist movement. 18 In the delegate's "Assessment", it found that: The applicant has made claims that she will be harmed if she were to return to Fiji and hold church meetings at her home, her oral testimony further indicates that she does not fear that she will be targeted by the authorities because she is Christian, but that she will be targeted by the authorities because her meetings are thought to be political meetings, not religious meetings. Considering the applicant's oral testimony, I find that she is not a person of interest to the authorities in Fiji or any other group. I find that she does not have a high political profile and that she is not part of any political group, or that she is politically motivated. I further find that the country information before me indicates that she will not be harmed if she were to return to Fiji because of her religion and I further do not accept the applicant's claimed incidents of harm. I find that the applicant's repeated re-entry to Fiji indicates that the applicant does not fear returning to Fiji. Considering all of the above, I reject the applicant's claims for protection in their entirety. 19 With her representative, CDA19 appeared at a Tribunal hearing on 2 April 2019. The transcript of that hearing appears in the Appeal Book. In the course of that hearing, CDA19 gave evidence that the three military interventions referred to in her statement of claims occurred during a different one-month period from the July/August 2014 timeframe referred to in her statement of claims. The Tribunal member informed CDA19 that that one-month period was during a period that her travel records indicated that she was in Australia. She was given until 9 April 2019 to provide further information and responses to those matters raised by the Tribunal under s 424AA of the Migration Act 1958 (Cth). A response was provided on 9 April 2019. 20 The Tribunal summarised CDA19's claims as follows at DR[2]: The applicant who is a citizen of Fiji claims to fear return on the basis that she will be unable to practise her religion, as she is suspected of being politically opposed to the government due to regularly holding religious meetings at her home. She fears if she returns to Fiji she will face military and police intervention at her religious meetings as she claims happened to her previously. 21 The Tribunal summarised CDA19's claims set out in her statement of claims at DR[10]-[19]. It made no mention of the "Christian State" or any words to the effect of the statement of claims at 74)-75) (see [15] above). The Tribunal summarised CDA19's interview with the delegate at DR[20] as follows: At the Department interview held on 17 June 2016 the applicant reiterated her claims to fear return as she will be unable to practise her religion due to interference by the military as the military believed they were holding political meetings in opposition to the government at her home. She said it is because she is in an area with many SODELPA followers. She confirmed that she is not involved in politics. The delegate questioned whether she fears return and referred to her repeated return to Fiji. He raised with her independent information as to the widespread practice of Christianity in Fiji and questioned the truth of her claims. 22 At DR[21]-[22], the Tribunal summarised submissions made by CDA19's representative dated 8 December 2016 concerning country information about the disjunct between public positions taken by the Bainimarama government (including the introduction of a new Constitution and Bill of Rights) and abuses of power by the military and police in 2014 and 2015 and suppression of opposing opinions. No mention of Christian State separatists was made in the submissions (which are included in the Appeal Book). 23 At DR[23], the Tribunal summarised evidence given by CDA19 at the Tribunal hearing on 2 April 2019. At DR[24]-[26], the Tribunal summarised the submissions made on 9 April 2019; these included that CDA19 supports her daughter and son-in-law's claims in disagreeing with the 2017 DFAT report that implies that only high-profile people in Fiji are at a risk of harm. The submission referred to the 2017 DFAT report at [3.41] which notes that there has been an increase in self-censorship and public figures continue to tread carefully in their expression of their public opinion. I note that the submissions dated 9 April 2019 also made express reference to material in the 2017 DFAT report at [3.21] and [3.23] (pressure on the Methodist Church to distance itself from politics and restrictions on its public meetings, although there were no remaining restrictions by 2017) and [4.8]-[4.10] and [5.9] (beatings and torture by police). The 9 April 2019 submissions did not make reference to the 2017 DFAT report at [3.51]-[3.56] addressing the Christian State separatists. 24 At DR[27]-[28], despite "significant concerns" about CDA19's credibility, the Tribunal accepted the following because CDA19's evidence concerning these matters had been consistent: CDA19 is a citizen of Fiji and it is her receiving country for the purposes of ss 36(2)(a) and 36(2)(aa) of the Migration Act respectively; She was and is a practising Christian involved in a Church similar to a Baptist; She attended that Church in Fiji on Sundays and held religious meetings on Thursday evenings at her home with her late husband, CCX19 and CCW19. She and her husband were elders in the church; She is not now and never has been involved in politics in Fiji or Australia; and She returned to Fiji in early 2015 with CCX19 as her husband died while visiting Australia and they accompanied his body back to Fiji for burial. 25 However, at DR[29], the Tribunal stated that it did not accept that CDA19 was a credible witness as to the difficulties she claims she faced in Fiji and her claims as to why she fears return. It found that she did not face the claimed difficulties at the hands of the military while holding religious meetings at her home on the basis that the military believed they were holding political meetings in opposition to the government and/or were supporters of SDL/SODELPA as they lived in an opposition area. It did not accept that she was of any interest to the military, police or authorities, including being watched, harassed, being pushed around, having guns pointed at her or her family or being harmed at any of these religious meetings for any of the reasons she claimed. It therefore did not accept she left Fiji in fear due to any harassment, intimidation or fear of further harm or that she fears return as a result of this harassment because she will continue to hold religious meetings on return. It set out its reasons for those findings as follows: (a) Inconsistencies in her evidence as to the dates of the three occasions on which the military was said to have come to her home in her statement of claims and at the Tribunal hearing having regard to movement records and evidence given by CCX19 and CCW19. The Tribunal did not accept her explanation that the inconsistencies arose from her confusion due to the passage of time or because CCW19 was forceful as to his conviction as to the dates on which those events occurred. Given their significance and relevant recency, it was the Tribunal's view that if the events had occurred she would have been consistent in her evidence: DR[30], [31]; (b) Evidence which CDA19 gave that she and her husband ceased holding Thursday evening religious meetings at their home following the military interventions and before they departed for Australia on the second occasion. Her evidence was contrary to evidence given by CCX19 and CCW19 that the meetings persisted during that period: DR[32]; and (c) The Tribunal found it inconsistent with the claimed fears and undermining of CDA19's credibility that: She did not leave Fiji on the second occasion for two months after she was granted a visa to enter Australia. The Tribunal did not accept that she and her husband had difficulty getting a plane flight during that period which was outside school holidays: DR[33]; She spent six months in Fiji after returning to bury her husband, even though the Tribunal accepted that she had been unwell at that time: DR[34]; She delayed approximately 15 months in applying for a protection visa after the claimed military interventions in the Thursday meetings: DR[35]; and Country information does not support her claim that religious gatherings were not allowed in 2014 or that they were targeted by the military at that time on the basis that they were suspected of holding political meetings for SDL/SODELPA as they came from a SODELPA area. In this regard it relied on a DFAT country report dated 26 June 2013: DR[36]. The Tribunal also relied on a DFAT country report for Fiji dated April 2015 for the following propositions. Past restrictions on religious practices (mostly designed to limit political influence of organisations of the Methodist Church) had been removed. Public gatherings had been permitted since 2014, albeit that some uncertainty remained about permissible limits on public commentary by public figures: DR[37]. 26 At DR[38], the Tribunal noted that a 2015 US State Department report found that "64 percent of the country is Christian". At DR[39], the Tribunal noted that CDA19 submitted that the information in the DFAT reports does not accurately reflect the position in Fiji and that Fijians know what is going on. She relied on a number of reports as to difficulties in Fiji, including impunity of the military, difficulties faced by political activists and a lack of the rule of law. The Tribunal stated that it had considered this information but did not accept that it indicated that, as at 2014, merely holding a religious meeting put a person at risk of being targeted or being of interest to the military as holding a suspected political meeting, even if the meeting was in an area considered in opposition to the government. In saying that, the Tribunal took into account that CDA19 is not a high profile individual and was not involved in politics. At DR[40]-[44], the Tribunal did not accept CDA19's explanation for inconsistencies in her evidence. It found that she was not a credible or truthful witness. On that basis, it followed that it did not accept her claims and found that she had never been of interest to Fijian authorities or suspected of being in opposition to the Fijian government for any of the reasons she claimed. 27 It is notable that, in rejecting that CDA19 had a well-founded fear of persecution upon her return to Fiji so as to meet either the refugee criterion or the complementary protection criterion, the Tribunal relied on the 2017 DFAT report, and in particular on [2.7], [2.10], [2.33], [2.39]-[2.40], [3.23]-[3.24], [3.46]: DR[45]-[51]. 28 In her written submissions, CDA19 notes that DR[46] states the following: … The applicant stated at hearing that while she will be able to attend her church on Sundays she will be unable to practise her religion by holding the Thursday night religious meetings. … Independent information, as outlined below which was raised with the applicant at hearing indicates that there is no persuasive country information to indicate that Christians or other evangelical groups currently encounter restrictions on practising their religion. The information also indicates that only high-profile political figures face difficulties and even if suspected of being in opposition to the government as they were holding private meetings or as they came from a SODELPA area, they would not face a real chance of serious harm or real risk of significant harm. CDA19 says that the reasonable inference to draw from the reference to "high-profile political figures" and "a SODELPA area" is that this is a reference to figures within SODELPA. The Tribunal found that CDA19 was not at risk of serious harm as a perceived member of SODELPA (at DR[49]). However, CDA19 relies on the 2017 DFAT report at [3.52] and [3.56]. 29 The 2017 DFAT report at [3.51]-[3.56] provides as follows (emphasis from CDA19's submissions): Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI) 3.51 The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni 'Oni' Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody. 3.52 In August 2015, several media outlets reported around 40 indigenous 'rebels' had been arrested for conducting 'military-style training' in Ra province in the north of Fiji's main island, Viti Levu. Police officers were deployed to the province in search of alleged firearms used, but none were reportedly found. On 16 August 2015, 16 people were reportedly arrested in Nadroga-Navosa province for causing communal antagonism and sedition for signing the 'Provincial Institutions of Self Government' of the Nadroga Navosa Christian State. During the week of 10-15 August, a further 37 individuals associated with the Ra Sovereign Christian State were arrested. The pro-government Fiji Sun was particularly vocal when reporting on the issue, often conflating the incidents and alleging links to the main opposition political party, SODELPA. Credible sources agree that the government sensationalised the situation for political gain. 3.53 Provincial councils in Ra, Ba and Nadroga-Navosa provinces and chiefs have distanced themselves from the groups involved and pledged their allegiance to the Bainimarama government. The SODELPA opposition party officially denied any links to the groups involved. 3.54 At the time of writing, 16 individuals from Ra province remain on bail on sedition charges for allegedly attempting to form a separate Christian state in their province. They appeared in Lautoka High Court on 16 March 2017, pleaded not guilty to the charges and bail was extended. The trial began on 14 August. 3.55 A separate sedition trial involving 14 remaining individuals from Nadroga province, charged with two counts of sedition for their alleged involvement in attempting to establish a separate Christian state, will also take place at Lautoka High Court. The group appeared in court on 29 March 2017 and pleaded not guilty to the charges. The trial will reportedly proceed on 20 October 2017. 3.56 Overall, DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.

Consideration 30 It is uncontroversial that the failure by an administrative decision-maker to consider an integer of an applicant's claim goes to the heart of whether the decision-maker has properly exercised their functions and it constitutes jurisdictional error. 31 The issue in this case is whether CDA19 in fact made a claim to fear harm on the basis that she may be perceived to be a member of the "Christian State" separatist movement. I do not accept that the FCCA Judge erred in finding that the material at 74)-75) of her statement of claims did not rise to that level. I accept the Minister's submission that CDA19 never made a claim that she would be perceived by the authorities as a member or supporter of the Christian State or that she would be at risk of harm as a result. I do not accept that such a claim was implicit from the materials before the Tribunal. That view is supported by the nature of CDA19's evidence to the delegate as recorded in the protection visa assessment cited at [16] above and the failure of CDA19's representatives to make submissions concerning such a claim, including the failure to refer to the 2017 DFAT report at [3.51]-[3.56]. 32 In my view the Tribunal correctly understood CDA19's claim to fear harm as being focused on her continuing intention to conduct religious meetings in her home on Thursdays in a context where she resided in a SODELPA sympathetic area. The assertion made at 74)-75) of her statement of claims goes to a heightened prospect of scrutiny of the religious meetings by Fijian authorities, not to concern that she would be perceived as a member of the Christian State movement as was made clear in CDA19's evidence to the delegate. In my view, that material is not a separate integer of a protection claim and no jurisdictional error arose from the Tribunal's failure to mention that material or overtly engage with the 2017 DFAT report at [3.51]-[3.56]. I accept the Minister's submission that it was unnecessary for the Tribunal to make an express finding on the matters referred to in 74)-75) of the statement of claims or refer to the 2017 DFAT report at [3.51]-[3.56] in those circumstances. The Tribunal is not required to refer to every piece of evidence and every contention made by an applicant: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (French, Sackville, Hely JJ). I do not accept that the Tribunal failed to perform its statutory task. 33 Accordingly, I perceive no appellable error in the FCCA Judge's finding that the material at 74)-75) of the statement of claims and CDA19's related evidence to the delegate was subsumed in the Tribunal's findings of greater generality. I note that those findings include that: (a) CDA19 was not a credible or truthful witness as to her claims, and the Tribunal did not accept that she had ever been of interest to Fijian authorities; (b) CDA19's evidence that she was not politically motivated; (c) The Tribunal rejected CDA19's claims that she was suspected of holding political meetings or of being in political opposition to the government; and (d) Country information did not suggest that Christians or other evangelical groups encountered restrictions on practising their religion. In particular, country information did not suggest that that the mere holding of religious meetings or practising religion exposed a person to being perceived as a Christian State separatist. 34 Further, even if CDA19 had claimed to fear harm on the basis that she may be perceived to be a member of a "Christian State" separatist movement, the material in the 2017 DFAT report at [3.51]-[3.56] does not support a finding that such a fear was well-founded. That material indicates that the Fiji Democracy and Freedom Movement or the Pacific Indigenous Samaritan Association was active in two regions outside the area in which CDA19 lived. It also indicates that the focus of the Fijian government interest was activists; mere supporters or members of the two organisations named were at a low risk of harassment or detention. CDA19 did not claim that she (or any other member of her church group) was a member or supporter of either of the named organisations and she expressly claimed that she is not politically interested, a claim that the Tribunal accepted. 35 For completeness, I note that the factual circumstances considered by the Full Court in BIL17 are removed from the circumstances of this case and, in my view, that case does not assist CDA19's cause in this case.

Disposition 36 The appeal should be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Farrell.