N97/13010 [1997] RRTA 1857 (14 May 1997)

In accordance with section 431 of the Migration Act 1958 (Cth), (as amended), the published version of this decision and reasons for decision does not contain any statement which may identify the applicant or any relative or dependant of the applicant. The published version of this decision was prepared under the direction of the Deputy Registrar

This matter concerns a decision made by a delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant a Protection Visa as provided for under the Migration Act 1958 (the Act).

The applicant sought protection as a refugee by an application for a Protection Visa lodged with the Department of Immigration and Multicultural Affairs (the Department) in March 1996. The decision was made in December 1996 and the applicant was notified, by letter dated December 1996, that his application for a Protection Visa had been refused. The applicant applied for review of the decision in January 1997.

The Tribunal is satisfied that the application for review has been validly made, and that the Tribunal has the jurisdiction to review the decision.

On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Migration Act 1958, introduced a visa known as a Protection Visa for people who seek protection as refugees: see s.36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose. The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations (the Regulations): see s.31(3) of the Act and r.2.03 of the Regulations.

It is a criterion for the grant of a protection visa that at the time of application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the family unit of a person who is also an applicant and has made such claims: cl. 866.211 of Schedule 2 of the Regulations.

It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl.866.221 of Schedule 2 of the Regulations.

The remaining criteria for the grant of a protection visa are, generally speaking, that the applicant has undergone certain medical examinations and that the grant of the visa is in the public and the national interest: cl. 866.22 of Schedule 2 of the Regulations.

"Refugees Convention" is defined by cl. 866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol relating to the Status of Refugees (the Protocol). As a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined.

Insofar as relevant to the present matter, Article 1A(2) of the Convention as amended defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

The definition of a refugee contains various elements. These include, first, that an applicant must have a "well-founded fear" of being persecuted. The term "well-founded fear" was the subject of comment in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs (1989-1990)169 CLR 379 (Chan's case). It was observed that the term contains both a subjective and an objective requirement. "Fear" concerns the applicant's state of mind, but this term is qualified by the adjectival expression "well-founded" which requires a sufficient foundation for that fear (at 396).

The court in Chan's case held that a fear of persecution is well-founded if there "is a real chance that the refugee will be persecuted if he returns to his country of nationality" (at 389; see also 398, 407 and 429). It was observed that the expression " 'a real chance' ... clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring" (at 389).

Secondly, the applicant must fear "persecution". The term persecution is not defined by the Convention, but not every form of harm will constitute persecution for Convention purposes. The Court in Chan's case spoke of "some serious punishment or penalty or some significant detriment or disadvantage" if the applicant returns to his or her country of nationality (at 388). Likewise it was stated that the "notion of persecution involves selective harassment" whether "directed against a person as an individual" or "because he or she is a member of a group which is the subject of systematic harassment", although the applicant need not be the victim of a series of acts since a single act of oppression may suffice (at 429-430). The harm threatened may be less than a loss of life or liberty and includes, in appropriate cases, measures " 'in disregard ' of human dignity" (at 430) or serious violation of core or fundamental human rights. Hathaway defines persecution "as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection" (Hathaway, The Law of Refugee Status, Butterworths Canada Ltd, 1991. pp. 104 -105 ).

Thirdly, the applicant must fear persecution or be at risk of serious harm for a Convention reason, viz. for reasons of "race, religion, nationality, membership of a particular social group or political opinion". If the harm suffered is related to some other reason, such as economic conditions, Convention protection is not available.

The applicant is a national of Fiji. He arrived in Australia in December 1995.

In a statement to the Department, dated October 1996, the applicant made claims in support of his application for a Protection Visa:

[paragraph deleted under section 431 of the Act]

The applicant explained that his sister had fled to Australia in 1988. He stated that after she left Fiji he and members of his family were harassed by security forces in Fiji who were attempting to locate the applicant's sister. [deleted under section 431 of the Act]. He stated that the harassment continued until he fled to Australia in 1995.

The applicant's sister, in a statement received by the Department in May 1996, indicated that she wanted the applicant's application to be considered on "family grounds" and "not as originally claimed as individuals". She stated that she was fearful that [deleted under section 431 of the Act]. In an attached statement, dated May 1996, she stated that she was the sole caregiver for the applicant and his other sister and that essentially for that reason she wanted them to remain with her in Australia.

The applicant was interviewed by the Department in November 1996. During the interview he indicated that he was questioned on four occasions by [deleted under section 431 of the Act] during 1989 and he was asked questions about his sister who had fled to Australia in 1988. He stated that he was subsequently kept under surveillance by [deleted under section 431 of the Act] until he departed the country in 1995. In a statement from the applicant to the Department, dated December 1996, he stated that the authorities in Fiji were not interested in locating his sister who fled to Australia in 1988, but rather they wanted [deleted under section 431 of the Act]. [deleted under section 431 of the Act].

The applicant attended a hearing with the Tribunal in May 1997. He was accompanied by his sister [deleted under section 431 of the Act] . The applicant's sister and [deleted under section 431 of the Act] provided evidence during the hearing.

At the hearing the applicant essentially reiterated the claims he had made previously. He stated that his sister left Fiji in 1988 and he was subsequently harassed by members of the [deleted under section 431 of the Act] . He stated that the [deleted under section 431 of the Act] asked him questions regarding [deleted under section 431 of the Act]. The applicant stated that he had no knowledge regarding the information, or his sister's associated activities, and he was unable to provide any information to the police.

The applicant stated that during 1989 he was harassed on four occasions by [deleted under section 431 of the Act]. He stated that as he was a child at the time of the harassment, he consequently suffered long term psychological damage from those experiences. He stated that he was left with an extreme fear of the security forces in Fiji. The applicant further stated that he continues to be fearful of security personnel in Fiji.

The applicant was asked by the Tribunal to describe his circumstances from 1989 until he departed the country in 1995. He stated that during that period he assumed that he was under surveillance by the authorities in Fiji but he had no actual contact with members of the [deleted under section 431 of the Act] during that period. He stated that in 1990, while he was attending a sporting event, he saw the police officers who had previously harassed him and he assumed that they were observing his activities.

The applicant was asked by the Tribunal regarding the circumstances of family members in Fiji, including his father and another sister. He stated that he was distant from those family members and that he had been raised by his grandfather. He stated that in 1988 his grandfather was also harassed by security personnel. He stated that his grandfather died in 1994 and he waited until his younger sister finished high school before they both travelled to Australia to be reunited with their sister. The applicant stated that he never sought employment in Fiji because he assumed that the security forces would prevent him from obtaining employment.

The applicant stated that if he returns to Fiji he will suffer harassment by the security forces as he had before his departure. He stated that the security forces will realise that he had been in contact with his sister and they will persecute him in their attempt to obtain further information [deleted under section 431 of the Act].

The Tribunal discussed with the applicant information from external sources relevant to the claims he had made. The Tribunal cited the Country Reports on Human Rights Practices for 1996, which indicates that following the 1987 coups in Fiji the country experienced a period of civil unrest and political instability that lasted for several years. Nevertheless, the latest reports demonstrate that those difficulties have significantly subsided. The report provides the following overview regarding the human rights situation in Fiji:

"Fiji's system of parliamentary government, inherited when the country gained independence from Great Britain in 1970, was interrupted in 1987 with the installation of a military-led regime following two bloodless coups. Fiji returned to elected government in 1992, and Prime Minister Sitiveni Rabuka was re-elected in 1994.

An independent, multiethnic Constitutional Review Commission presented its long-awaited report to the President in September. The 1990 Constitution reflected the pro-indigenous Fijian bias of the two coups; the Constitutional Review Commission's report proposes a more representative system. The report aims to encourage multiethnic government through heterogeneous electoral districts and a preferential voting scheme, while preserving ethnic Fijian veto power over legislation affecting interest in land or customs. The proposal, if approved, would be a major step toward an improved political and business climate...

The small but professional Fiji Military Forces (FMF) and a separate police force report to and are under the control of the Minister for Home Affairs and, ultimately, the President. The Constitutional Review Commission report recommends that the army's legal basis be legislative, not constitutional. In 1990 the Government established the Fiji Intelligence Service, with limited statutory powers to search people and property, monitor telephones, and access mail correspondence and financial records. There continue to be credible reports of human rights abuses by individual police officers...

The principal human rights problem remains constitutionally imposed and ethnically based political discrimination, which abridges the right of citizens to change their government. The Government and people are seeking to redress this problem through the constitutional review process. Other human rights problems include overt bias in land tenure and government policies favouring ethnic Fijians, occasional police brutality, potential constraints on the exercise of freedom of the press, continued delays in bringing criminal and civil cases to trial, discrimination and cases of violence against women, and instances of abuse of children...

There were no reports of political or other extrajudicial killings... There were no reports of politically motivated disappearances... Police sometimes physically abuse detainees; the authorities have punished some of the offending officers, but these punishments have not been sufficient to deter all police abuses. The Police Department's internal affairs unit investigates complaints of police brutality and is working with the Ombudsman's office to ensure impartial observers in the investigation of complaints about police conduct... Incommunicado and arbitrary detention, both illegal, did not occur...

In general, the Government respects the privacy of the home. However, the Intelligence Service has powers, within specific operational guidelines, to search people and property, access private financial records, and monitor mail and telephones when a warrant is issued by the National Security Council. The Intelligence Service does conduct surveillance of persons it believes represent a security threat. Some political dissidents believe their telephones and mail are monitored, but they have not produced substantiating evidence.

The Government does not restrict freedom of movement within the country or abroad. Occasional detentions at the airport occur, but the courts order redress where this is warranted. Citizens are free to emigrate, and an estimated 40,000 have done so since 1987. The Government does not restrict their return if they choose to do so, and has, in fact, encouraged those who left after the coups to return." (Country Reports on Human Rights Practices for 1996: Fiji, U.S. Department of State, 1997; see also Country Reports on Human Rights Practices for 1995: Fiji, U.S. Department of State, 1976).

The Tribunal also discussed with the applicant information provided by the Department of Foreign Affairs and Trade (DFAT) which indicated that there have been recent developments in the debate regarding the ethnically biased Constitution of Fiji. In cable SU1803, dated 11 September 1996, DFAT indicates that the President and Prime Minister have supported a new Constitution which emphasises inter-communal harmony. Although nationalists have opposed recommendations to reduce the advantages currently enjoyed by indigenous Fijians, there appears to have been broad approval for such changes to the Constitution (see also: DFAT cables SU1794 dated 10 September 1996, SU1792 dated 9 September 1996, SU1789 dated 6 September 1996, and SU1765 dated 4 September 1996). The Australian indicated that the report on the Constitution has called for the "return to multi-ethnic democracy it lost in two 1987 military coups" (see: 'Fiji report urges return to pre-coup democracy', The Australian, 11 September 1996, p. 9, and 'Fijians may lose ethnic privilege', The Australian, 10 September 1996, p.8).

The Tribunal discussed with the applicant information from DFAT which indicated that the military coups in Fiji, during 1987, led to "turmoil and confusion", and that "the effectiveness and morale of the police force dropped sharply" (cable SU53056, 2 March 1990). However, DFAT has commented more recently that the effectiveness of the police force in Fiji has improved considerably since the civil unrest of 1987. They stated the following:

"The Fiji Police Force is a professional and well-respected organisation. There is now a much clearer sense of a separation of powers between the executive, the judiciary and the police than was the case after the 1987 coups. Accusations of police brutality are rare and investigated seriously... it is generally acknowledged in Fiji that the police force itself is of a high standard. Unlike the military, both major ethnic communities are represented in the force ( see: DFAT "Law and Order" Cable SU 448 of 2 June 1995).

In its advice of 12 June 1995 the Department of Foreign Affairs and Trade provided the following additional information:

"At a conference of Commissioners of Police of Australasia and the South Pacific region held in Suva 8-12 May [1994], opposition leader Reddy allowed that public confidence in the police force was now at its highest since the 1987 coups. This can be attributed in large part to the efforts of the current police commissioner (Isiakia Savua) and his immediate predecessor (Philip Arnfield) to restore the neutrality and professionalism of the police force. New initiatives such as community policing and decentralisation of the force have been welcomed by both major ethnic communities. However, Reddy was also critical of the police force's lack of resources and of properly trained police investigators which, he said, led to sloppy investigative work. " (see: DFAT, "Fiji: Monthly round-up of events: May 1995" Cable SU473 of 12 June 1995).

DFAT indicated that "the Police Department's internal affairs unit investigates complaints of police brutality, whilst links to the Ombudsman's office guarantee impartial investigations of complaints". DFAT further indicated that there "is no evidence to suggest that police brutality is a characteristic of law enforcement in Fiji" (DFAT, cable SU1675 dated 6 August 1996; see also cable SU448, dated 2 June 1995).

[paragraph deleted under section 431 of the Act]

"Yavato" was an anti-corruption unit probably within the RMFF which preceded the Fiji Intelligence Service (FIS) and its function was subsequently taken over by FIS. It is believed that "yavato" was staffed by officers with legal, accountancy and similar qualifications. Ordinary citizens would have had no protection against "yavato" - however, the FIS was established by decree and is governed by laws which afford protection to the people of Fiji." (DFAT, Cable from Suva SU 63346 of 14 July 1995).

The Tribunal also noted further advice regarding the FIS provided by DFAT:

"We are not aware of any reports of police harassment or monitoring of FLP or NFP members or supporters or of other prominent critics of the coups or the Constitution, other than routine monitoring of the activities of all political parties in Fiji by the Fiji Intelligence Service and the police special branch. We are not aware of any reports of harassment since our last report" (DFAT, cable SU63682 on 3 October 1994).

DFAT had previously provided the following advice regarding the FIS:

"The promulgation of a decree for the establishment of the Fiji Intelligence Service (FIS) in September 1990 attracted the attention of some international human rights organisations, but the decree did little more than regularise an existing situation, the joint intelligence centre, established in 1987.

While the FIS could be open to abuse by the government of the day, the decree nonetheless specifies heavy penalties for abuse of authority by FIS staff. Rabuka has assured parliament that the FIS is accountable and controlled. The FIS has no powers of arrest.

Claims of extensive telephone monitoring are exaggerated and at odds with the known resources and staffing of the FIS. We are not aware of any incidents of harassment by the FIS and in general its existence has not affected political activities".

It was suggested to the applicant by the Tribunal that the above information tends to indicate that protection mechanisms had improved considerably in Fiji since he was harassed in 1989 and that under such improved circumstances he would be able to seek protection from harassment if it occurred in the future. He replied that from his own experience, civil and political circumstances in Fiji had not improved since 1989 and that he continued to be fearful of the security forces in Fiji.

The applicant's sister, also presented evidence at the hearing.[deleted under section 431 of the Act]. The applicant's sister stated that she was persecuted by security personnel in Fiji during 1988 and that her brother, the applicant, would be persecuted in the future because of his association with her.

The Tribunal indicated to the applicant's sister that in her own application for refugee status she did not state that her younger brother, the applicant, had been harassed by the authorities in Fiji. It was indicated to her that she only stated that her sister and two other relatives were questioned by the authorities after her departure from Fiji. The applicant's sister replied that she knew of the harassment that her brother had suffered in 1989 and as she had neglected to mention it previously she came to the hearing in order to verify his claims.

The applicant's sister was asked regarding the circumstances of relatives in Fiji who had been questioned previously regarding her activities. She replied that they remain in Fiji and to the best of her knowledge they are no longer harassed by the authorities. She stated that her older sister is married [deleted under section 431 of the Act] that she no longer has contact with her or the applicant in Australia. The applicant's sister also stated that she no longer has contact with other relatives in Fiji who were questioned regarding her activities.

The applicant's sister stated that the persons who persecuted her were still in positions of power in Fiji and they would persecute her brother in the future because he had been in contact with her in Australia. She further stated that her brother had been a withdrawn and frightened individual when he arrived in Australia and she attributed his behaviour to the suffering he endured as a child in Fiji after she departed the country.

A witness, who also presented evidence, essentially repeated what he had stated previously in support of the applicant's sister's application. He stated that he and his brother had also been harassed by the authorities, regarding [deleted under section 431 of the Act], and they fled to Australia where they have lived since 1989. He stated that the applicant will be persecuted by the authorities in Fiji because the same people who persecuted himself, and the applicant's sister, continue to be in positions of influence. He stated that the applicant will be "watched" by the authorities and he will not be able to live a peaceful life while the matter of the [deleted under section 431 of the Act] remains unresolved.

The task of the Tribunal is to determine whether the applicant's circumstances support a claim to refugee status. For the reasons indicated below, the Tribunal finds that the applicant is not a refugee.

The Tribunal noted the difficulties experienced by the applicant prior to his departure from Fiji, particularly the harassment he suffered in 1989 after his older sister departed the country. The Tribunal noted that the applicant suffered those circumstances during a period of civil and political unrest in the country, at the young age, and that as a result of those experiences he continues to be fearful of the security forces of Fiji. Nevertheless, the applicant's statements indicate that he effectively had no contact with the authorities in Fiji for approximately five years prior to his departure. Therefore, although the Tribunal acknowledges that the applicant suffered hardship in Fiji during 1989, particularly as he was a child at the time when he was harassed by the authorities, the Tribunal does not find that he was suffering circumstances amounting to persecution at the time when the applicant departed the country in 1995.

The Tribunal considered the applicant's claim that he will be at risk of suffering persecution if he returns to Fiji due to his association with his sister in Australia. However, the Tribunal has decided, after also considering information from external sources regarding current circumstances in Fiji, that the applicant will not be at risk of suffering persecution in Fiji, or be denied access to the protection mechanisms commonly available to the citizens of Fiji, for a Convention related reason. In making that decision, the Tribunal particularly noted that the government, police and the courts in Fiji, which were either unable or unwilling to offer protection during the unrest and instability of the coup period, have since regained their ability to provide protection to all citizens in the country. The Tribunal has decided that under such improved conditions, the applicant will not be denied protection for a Convention related reason if he returns to Fiji in the foreseeable future.

The Tribunal noted the concerns expressed by the applicant's sister regarding the applicant's dependence on her for emotional and financial support. The Tribunal further noted the applicant's concerns regarding the financial and psychological hardship he anticipates in Fiji. However, although the Tribunal acknowledges that the applicant and his sister raised legitimate concerns, it does not have the authority to respond to such matters as they are beyond the scope of the Refugees Convention.

In summary, the Tribunal has decided that there is no real chance that the applicant will suffer persecution in Fiji for a Convention related reason. Accordingly, as the applicant is not a person to whom Australia has protection obligations under the Refugees Convention, a Protection Visa cannot be granted.

The Tribunal is not satisfied that the applicant is a refugee and affirms the decision not to grant the applicant a Protection Visa.