N00/32263 [2000] RRTA 909 (26 September 2000)

He points out that, although Speight and his core followers have been arrested the following issues remain:

1. The democratically elected government has been overthrown.

2. It has been replaced with an unelected government with substantial number of his supporters and sympathisers as its members with a token Indian representation.

3. The unelected government is to rule for two years, rule by decree and introduce discriminatory measures against the Indian community, in particular major amendments to the land legislation.

4. Abrogation of the non-discriminatory Constitution with the promise of a Constitution that will discriminate against the Indians to be introduced two years after the rule by decree by the unelected government.

He also stated that there is general and continued violence against the Indian population of Fiji including assaults, homeraids, burglary, violence, rape, theft and killing of farm animals and widespread harassment.

He claimed that the army and the police are divided and contain elements which are sympathetic to the anti-Indian cause. He states that the Supreme Court has been abolished by a decree and, as a result a number of local and foreign judges have resigned.

He claims that the Applicant, as an Indo-Fijian, Hindu has a well-founded fear based on her race and her religion.

A report from Reuters Business Briefing of 28 Jul 2000, held at Cisnet CX43875 states:

Fiji appointed a new interim government on Friday without any rebel backers of jailed coup leader George Speight, who caretaker Prime Minister Laisenia Qarase said no longer posed a threat.

Speight, arrested by the military on Wednesday and facing possible treason charges, had threatened further civil unrest unless his supporters dominated the new government.

Fiji was plunged into political crisis when Speight stormed parliament in May in the name of indigenous Fijian rights, taking hostages and demanding an end to Indian political power.

President Ratu Josefa Iloilo defied Speight by dropping his four nationalist supporters from an earlier line-up, reappointed Qarase and named Ratu Epeli Nailatikau deputy prime minister.

Speight had publicly opposed both Qarase and Nailatikau.

After being sworn in, Qarase, who said earlier the interim government would rule for three years before new elections, called on all Fijians to end widespread lawlessness.

"The lawlessness that has swept the country must stop," Qarase said. Asked by reporters if Speight could cause more unrest, Qarase said Speight was "no more threat".

"We must promote national reconciliation and healing not only between the Fijians and Indo-Fijians, but also between the Fijians themselves," Qarase said.

Fiji's military said Qarase would address the concerns of indigenous Fijians over the next three years. Spokesman Lieutenant-Colonel Filipo Tarakinikini said a decree allowing the military to crack down on unrest would last another two weeks.

A DFAT report of 16 August 2000 and held at Cisnet CX43874 states, in regard to security:

The president extended the emergency decree in Fiji by fourteen days from 11 August 2000. The minister for home affairs and immigration recommended this extension ''in view of the prevailing situation nationwide''. The military continues to hunt for rebel Speight supporters and escaped prisoners, including those suspected of shooting dead two soldiers and a policemen on 8 August 2000. The military deployed several hundred soldiers into the interior of Viti Levu over the weekend and have also stepped up efforts countrywide to apprehend rebel gang members.

On 14 August the Republic of Fiji Military Forces (RFMF) recovered eleven weapons from villagers in the Monasavu dam area. Three former RFMF members have surrendered to authorities since 11 august. Two former RFMF members and seven prisoners remain at large.

According to a media report, a mob of Speight supporters shouted and made racist comments as they made their way from the magistrate's court to the Suva bus station on 11 August after Speight's hearing. The mob, comprising young boys and some men and women, shouted and cheered as they walked along Victoria parade, the main street in down town Suva. There were no reports of violence or damage as a result of this incident.

There have been no repetitions of the incidents of landowners taking over resorts that occurred in early July. However, the Dutch (with us permanent resident status) owner of the Buca bay resort on Vanua Levu, claimed in a press article on 14 August that his resort, on freehold property, was still being occupied by rebels, terrorists and criminals. The US consul confirms that problems continue at this small resort. RFMF sources advise the military went to Buca bay on 14 August to investigate this incident and the persons occupying the resort fled when the military arrived.

Moses driver, assistant commissioner of police, today advised us that the security situation has ''improved a great extent as a result of charges against Speight and the military dealing with rebels in the hills''. Driver said the rebels have no leadership and no one is able to motivate them as a group. Driver said the RFMF, police and government officials are making ''lots of visits to chiefs to ensure continued support for the interim government''. Driver said the police and military are working together closely, gathering and investigating intelligence and interrogating anyone suspected of causing civil unrest. Driver said that it is likely Speight will be remanded ''until at least January or April next year, if things move fast in the court system''.

The nightly curfew in parts of the central division, including Suva, Lami and Nausori remains in place from 2200 hours to 0500 hours.

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA [1997] FCA 289; (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v The Applicant initially made claims to fear persecution at the hands of the Indigenous Fijians for reasons of her Indian race and her Hindu faith.

She provides some details of harassment at the hands of local indigenous people and says that there are insufficient police to provide protection and that they take hours to come when called.

At the time the hearing was scheduled, on the basis of the information before me I find that the Applicant had protection to her rights as a Hindu and as an Indo-Fijian. These were enshrined in the Constitution and in practice.

I accept that Fiji had a high crime rate at that time but, find that state protection was such that she could not substantiate a claim to be unable to find protection from the harm she claimed to fear.

However, on 19 May 2000 a situation occurred which pushed Fiji into the headlines to such an extent that the happenings of that time became matters of notorious information.

Speight's aims and objectives were clear and, in part, racially based and discriminatory.

This bizarre turn of events left Fijians and Indo Fijians vulnerable. There is also evidence that Indo Fijians were targeted by some sections of the Indigenous Fijian community.

However, that situation has also passed with the capture of George Speight and his close followers who now face trial.

The evidence before me leads me to find that the Military is serious about bringing this man and his followers to justice. I also find that the current head of state Qarase is not a supporter of George Speight and, is opposed to him.

I agree with the submissions that the Constitution has been put aside and the elected government overthrown.

I also accept that there are serious concerns in regard to discriminatory practices which directly affect the Indo-Fijians.

This backward step from democratic principles since May 2000 is regrettable and is understandably a concern for Indo Fijians generally, particularly since they represent such a large proportion of the total population of the country.

However, the facts in the present case lead me to conclude that any discrimination facing the Applicant is not of such severity as to amount to persecution.

I am satisfied that she can return to Fiji, she can seek employment in the area she was employed in previously limited only by the consequences of job availability and she can continue to live the same lifestyle that she and her son lived prior to coming to Australia.

The independent information before me advises that law and order has been restored and that Speight and his followers are being brought to justice.

The media articles provided by the Applicant's representative from 10 July 2000 to 31 August 2000 from the Fiji Times report on schools reopening, public offices reopening, courts operating and investigations into the May 19th coup taking place. There is a report on a campaign to help restore jobs in the Fiji Times of 21 August 2000 and, along side of it comments from an Indo-Fijian who is the Fiji Public Servants Association general secretary deciding on pay agreements. Many of the other reports are made by Indo-Fijians indicating they are a vocal group who represent wide areas of the community.

While many of the reports concern attacks by thugs and hoodlums, the type of attacks described by the Applicant in her application, the editorials call on Fijians to restore order and to assist in the rebuilding of the country.

Reports of police urging the public to be aware of arsonists and arrests by the military and the police lead me to conclude that the authorities are genuinely dealing with law and order issues. The Fiji Times Editorial of 18 August 2000 reports:

The police and military have launched a campaign to see that acts of violence are stopped.

Under the circumstances they have done a wonderful job and must be commended for their actions.

That editorial also reports that the burning and destruction of homes is indiscriminate. It names both Indigenous and Indo Fijians as victims.

The information before me, including that provided by the Applicant, leads me to find that there are still incidents of violence but the reports indicate that the authorities are providing effective protection and that a system of law and order has been restored.

This being the case I am not satisfied that the Applicant or her son would face a "real chance" of persecution in Fiji for reasons of their race or their religion if they returned to Fiji now or in the reasonably foreseeable future.

In regard to land leases I can not be satisfied that there is any relevance to the Applicant's claims.

The Applicant states that in the period she has been working that she has been doing so as a textile machinist. She also stated in her application for a protection visa that she and her son lived at the same address.

In her original claims she made no mention of leasing property or any adverse consequences of doing so.

The papers she has provided reports of a number of cases where landowners have not renewed leases.

This is not a Convention issue. The right of a landowner not to renew a lease, while it may cause great inconvenience and possibly also hardship, is an application of a law of general application.

In any event, since there is no evidence or any claim that this was a situation facing the Applicant, it is not relevant in the current matter.

The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

No specific Convention claims were made by or on behalf of the applicant's son, and there is no basis on which the Tribunal can be satisfied that he is a refugee. The fate of his application therefore depends on the outcome of the applicant's application. As the Tribunal has found that the applicant does not satisfy the criteria for a protection visa, it follows that her son cannot be granted a protection visa.

The Tribunal affirms the decision not to grant protection visas.