C M Treadwell (Member) Date of Decision: 31 August 2016 DECISION

Transcription

1 IMMIGRATION AND PROTECTION TRIBUNAL NEW ZEALAND [2016] NZIPT AT AUCKLAND Appellants: FL (Fiji) Before: C M Treadwell (Member) Representative for the Appellants: Counsel for the Respondent: J Sidhu No Appearance Date of Decision: 31 August 2016 DECISION [1] These are appeals against decisions of a refugee and protection officer, declining to grant refugee status and/or protected person status to the appellants, citizens of Fiji, of Fijian-Indian ethnicity. The appellants are husband and wife. INTRODUCTION [2] These appeals are intertwined. They arise from, essentially, the same facts and each appellant relies on the evidence of both in each of their appeals. [3] The appellants claim to have a well-founded fear of being persecuted in Fiji on account of mistreatment at the hands of ethnic Fijians, and to be at risk of serious emotional harm if they return to Fiji, where they lack housing, employment and support. The issues for determination by the Tribunal are whether there is anything more than a remote or speculative chance of either of the appellants suffering serious physical harm and whether any emotional harm they might suffer would be for any Convention reason, or whether it would comprise treatment in the context of cruel, inhuman or degrading treatment [4] For the reasons which follow, the appeals are dismissed.

2 2 DECISION NOT TO OFFER AN INTERVIEW [5] The Tribunal may dispense with an interview if it considers that an appeal is, prima facie, manifestly unfounded or clearly abusive, or repeats a previous claim see section 233(3) of the Immigration Act 2009 ( the Act ). [6] The appellants were interviewed by the Refugee Status Branch in respect of their claims on 27 August Decisions declining their applications were issued on 12 November [7] By letter dated 15 July 2016, the Tribunal wrote to the appellants, providing them with an opportunity to present submissions and/or evidence to show why the Tribunal should not regard the appeals as, prima facie, manifestly unfounded or clearly abusive. They were provided with a copy of the Tribunal s decision in EN (Fiji) [2015] NZIPT , which had addressed similar claims in relation to Fiji, and advised that, unless it was persuaded that this was not the case, the Tribunal could consider and determine the appeals without providing them an opportunity to attend an oral hearing. The relevant aspects of their claims were set out and an explanation was given as to why the claims were considered to be, prima facie, manifestly unfounded. Those reasons are discussed below. [8] The appellants were given until 25 July 2016 to respond. On 27 July 2016, a letter was received by the Tribunal from Mr Sidhu, on behalf of the appellants, attaching a statement dated 16 July 2016, signed by both appellants. Whether the Appeals are, Prima Facie, Manifestly Unfounded [9] For reasons which follow, the Tribunal considers the appeals to be, prima facie, manifestly unfounded. [10] In essence, the appellants say that: (a) (b) In about 2002, the wife was the victim of theft when an unknown man snatched her handbag and ran off. In April 2002, the wife was attacked by a stranger at the door. She went to the hospital, where priority was given to ethnic Fijians before she was given Panadol. She reported the assault to the police, who never took any further steps.

3 3 (c) (d) (e) In January 2004, the husband was assaulted by five or six young men. He lodged a complaint with the police but they did nothing. They have suffered serious injuries in violent attacks by ethnic Fijians, because they were of Indian ethnicity and were renting a mataqali house (a house owned by an ethnic Fijian land-owning unit). Mataqali youths would demand money and attack them if they refused to pay. If they return, they may have to go back to renting a house in a mataqali area. They fear that there may be further political unrest. Past coups have led to ethnic Indians suffering home invasions, robberies and torture. (f) Their land has been forfeited to local Fijian natives. They have nothing left to survive in their home country. (g) To these concerns must be added the information provided by the appellants in their statement of 16 July In summary, they advise that they do not face any physical harm if they return to Fiji but they say that they will suffer serious emotional harm because their adult sons in Fiji will refuse to support them (because the appellants have never sent them money from New Zealand). They say that, at their ages, (they are in their mid-sixties) they will be unable to find employment or to afford accommodation. There is no social welfare or pension available to them and they will be deprived of life s basic needs. Further, it would be hard on them to be separated from the wife s New Zealand-resident sisters (one is said to be very ill). They have been here for 11 years and have developed close friendships and bonds within the New Zealand community. For all these reasons, a return to Fiji would cause them serious emotional harm. [11] For reasons which are set out below, the Tribunal determines that it is not necessary to provide an oral hearing, pursuant to section 233(3) of the Act. The appellants attended an interview with the Refugee Status Branch and the Tribunal considers that the appeals are both, prima facie, manifestly unfounded. It determines not to provide the appellants an oral hearing and to determine the appeals on the information and documentation on the file.

4 4 THE APPELLANTS CASE [12] The appellants claims are set out in their confirmation of claim forms, their Refugee Status Branch interview notes, letters dated 22 July 2015 and 17 October 2015 by Mr Sidhu and the appellants respectively, the Refugee Status Branch decision and the appellants recent statement of 16 July [13] The appellants are both nationals of Fiji, both born in The husband worked as a carpenter and in the construction industry and the wife worked as a seamstress. They have three children an adult daughter who lives in Canada and two adult sons who live in Fiji. The husband has a brother and a sister in Australia and a brother and two sisters in Fiji. The wife has a sister and two brothers in Fiji, three sisters in New Zealand and a brother in Australia. [14] In about 2002, the wife was the victim of theft when an unknown man wrenched her handbag away from her and ran off. [15] In April 2002, the wife was attacked in her home when she opened the door to a man asking for a drink of water. When she turned to fetch one, he struck her in the face, causing her to black out. She has no recollection of events after that, until her husband came to her aid. The wife went to the emergency department at the hospital, where priority was given to ethnic Fijians. She was, however, eventually seen and was given Panadol. The assault was reported to the police, who took a statement but never took any further steps, so far as the appellants are aware, even after the appellants made a follow-up visit to them. [16] In January 2004, the husband was assaulted while walking home from work. Five or six young men, unknown to him, attacked him from behind and beat and kicked him. When he reached home, the wife took him to the police station to lodge a complaint. In spite of the police saying that they would come to their home, they did not do so. Again, a follow-up visit to the police did not produce any results. [17] As well as the foregoing incidents, the appellants have also suffered serious injuries in violent attacks by ethnic Fijians. No dates are given for such attacks, nor is any description of the injuries given, but it is said that they were targeted because they were of Indian ethnicity, renting a mataqali house. Mataqali youths would randomly ask them for money and would attack them if they did not comply. The appellants do not own any property in Fiji and it is claimed that, if they return, they may have to go back to renting a house in a mataqali area.

5 5 [18] The appellants also fear that there may be further periods of political unrest. Past coups have led to ethnic Indians suffering crime in the form of home invasions, robberies and torture. [19] The wife came to New Zealand on a temporary visa in December The husband followed her here in May On 24 July 2015, the appellants lodged claims for recognition as refugees or protected persons. They were interviewed by the Refugee Status Branch on 27 August The grounds of their claims were expressed in Mr Sidhu s letter of 22 July 2015 to be (verbatim): [S]ince the coup happened in New Zealand their life became very hard. [The wife] said, their land has been forfeited by the local Fijian natives. Basically they have nothing left to survive in their home country. The couple said, life has become difficult in their home country. They said many racial attacks have been happening on non-fijian people. The couple is feeling scared to go to their country. They said they would have less favorable living conditions in there. They said, the Police authorities would not help to Indian people living in Fiji. After the coup their life has become miserable. The [appellants ] family is in a due fear of being tortured in their home country. [20] To these concerns must be added the information provided by the appellants in their statement of 16 July In summary, they concede that they do not face any physical harm if they return to Fiji but they say that they will suffer serious emotional harm because their adult sons in Fiji will refuse to support them (because the appellants have never sent them money from New Zealand). They say that, at their ages, they will be unable to find employment or to afford accommodation. There is no social welfare or pension available to them and they will be deprived of life s basic needs. Further, it would be hard on them to be separated from the wife s New Zealand-resident sisters (one is said to be very ill). They have been here for 11 years and have developed close friendships and bonds within the New Zealand community. For all these reasons, a return to Fiji would cause them serious emotional harm. [21] On 27 August 2015, the Refugee Status Branch interviewed the appellants. Their applications were declined on 12 November 2015, leading to the present appeals.

6 6 ASSESSMENT [22] Under section 198 of the Act, on an appeal under section 194(1)(c) the Tribunal must determine (in this order) whether to recognise the appellant as: (a) (b) (c) a refugee under the 1951 Convention Relating to the Status of Refugees ( the Refugee Convention ) (section 129); and a protected person under the 1984 Convention Against Torture (section 130); and a protected person under the 1966 International Covenant on Civil and Political Rights ( the ICCPR ) (section 131). [23] In determining whether the appellants are refugees or protected persons, it is necessary first to identify the facts against which the assessment for each is to be made. Credibility and Factual Findings [24] Because the appellants have not been given the opportunity of an interview, for the purposes of this decision the Tribunal accepts their accounts as credible. [25] It follows that the Tribunal finds the appellants to be a Fijian-Indian couple in their mid-sixties. They have lived in New Zealand on temporary permits and visas since 2005 (the wife) and 2007 (the husband). They have two sons residing in Fiji and a daughter in Canada. Each appellant has several siblings residing in Fiji. Between 2002 and 2005, the appellants suffered a number of unconnected incidents of criminal violence at the hands of ethnic Fijians, either in the course of robbery or for racist reasons. Neither appellant was seriously hurt on any occasion and the appellants concede that they are not at risk of physical harm if they return to Fiji. [26] The appellants are well-settled in New Zealand and say that they will suffer serious emotional harm if they return to Fiji because they will have no employment or accommodation and cannot look to their sons for support. There is no financial support available to them from the Fijian government and they fear that they will suffer in great poverty and hardship if they return. They will also suffer emotional harm at being separated from friends and family in New Zealand.

7 7 The Refugee Convention [27] Section 129(1) of the Act provides that: A person must be recognised as a refugee in accordance with this Act if he or she is a refugee within the meaning of the Refugee Convention. [28] Article 1A(2) of the Refugee Convention provides that a refugee is a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it. [29] In terms of Refugee Appeal No (17 September 1996), the principal issues are: (a) (b) Objectively, on the facts as found, is there a real chance of the appellant being persecuted if returned to the country of nationality? If the answer is yes, is there a Convention reason for that persecution? Assessment of the Claims to Refugee Status [1] For the purposes of refugee determination, being persecuted requires serious harm arising from the sustained or systemic violation of internationally recognised human rights, demonstrative of a failure of state protection see DS (Iran) [2016] NZIPT at [114]-[130] and [177]-[183]. [2] In determining what is meant by well-founded in Article 1A(2) of the Convention, the Tribunal adopts the approach in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA), where it was held that a fear of being persecuted is established as well-founded when there is a real, as opposed to a remote or speculative, chance of it occurring. The standard is entirely objective see Refugee Appeal No (11 September 2008) at [57]. Objectively, on the facts as found, is there a real chance of either of the appellants being persecuted if returned to Fiji? [30] The appellants accept that they are not at any risk of physical harm if they return to Fiji. As they say in their statement of 16 July 2016:

8 8 although there is no physical harm faced if we were to return to Fiji, there is certainly emotional harm involved if we were to be separated from our New Zealand family. [31] The concession by the appellants that they are not at any risk of physical harm in the future is an appropriate one. The incidents of harm experienced by them in the past were random and unconnected instances, usually associated with criminal activity by the perpetrator/s. Further, the incidents are now well in the past. On no view could they sensibly be said to give rise to any risk in the future. [32] At the core of the appellants claim as now presented to the Tribunal is the claim that a return to Fiji will cause the appellants serious emotional harm because: (a) (b) (c) they will be separated from their New Zealand-resident family members; their Fiji-resident sons will reject them because of their own failure to support their sons; and they will have nowhere to live in Fiji and no employment, causing them great hardship. [33] Although the appellants refer to the harm they fear as emotional harm, the Tribunal does not overlook that there are aspects of physical harm inherent in notions of poverty and other forms of socio-economic deprivation. Future references to harm in this decision should be taken as encompassing such harm. [34] The first point to be made, however, is that the evidence does not establish that either appellant faces a real chance of serious harm in terms of socio-economic deprivation if they return to Fiji. They will face the same opportunities for employment and accommodation as everyone else. They may have to find more poorly remunerated work in Fiji than they would have in New Zealand, but their work history has been as a carpenter and in the construction industry and as a seamstress. Such employment is available in Fiji (indeed, they have both worked there in the past in those roles). The appellants claim that the retirement age in Fiji is 55 years is correct but only insofar as the public service is concerned. In the private sector, they are able to work to whatever age they wish. They are currently in their mid-sixties and there is no reason, on the evidence, to indicate that they cannot find work again in Fiji.

9 9 [35] As to accommodation, the appellants will be able to access rental accommodation in the normal course, and there is no evidence that it would be withheld from them for any discriminatory reason. Whether or not they rent in a mataqali area is a matter for them. [36] In summary, the evidence does not establish anything more than a speculative risk of the appellants suffering serious harm by way of socio-economic deprivation if they return to Fiji. [37] As to the appellants claim of harm by way of separation from their family in New Zealand, a degree of reality needs to be brought to bear. The family in New Zealand comprise three of the wife s sisters (and their families). While the Tribunal accepts that there will have been bonding between them since the wife arrived in 2005 and that such separation will occur, both the husband and the wife have other siblings living in Fiji and their own sons continue to live there. They will not be bereft of close family support. The claim that the sons will not support them because they have been unable to send money to the sons over the years is noted, but it is no more than speculative that the sons would allow such feelings of disappointment to lead to a permanent rift with their own parents, if the parents were in fact to return to Fiji. Even if it did, the appellants have siblings there. [38] It is accepted that there will be some hardship for the appellants in returning to Fiji. They will have the sadness inherent in leaving the wife s sisters and their families in New Zealand and they will likely face some challenges in becoming re-established in Fiji, particularly in terms of employment and accommodation. However, the risk of those factors, singly or cumulatively, amounting to serious harm is no more than speculative. [39] Finally, for the sake of completeness, the Tribunal has regard to the issue of discrimination against Fijian-Indians generally. In recent years, it has considered this issue on a number of occasions. See, for example, DH (Fiji) [2014] NZIPT , CF (Fiji) [2013] NZIPT , BO (Fiji) [2012] NZIPT , BI (Fiji) [2012] NZIPT , BE (Fiji) [2011] NZIPT , AB (Fiji) [2010] NZIPT and EN (Fiji) [2015] NZIPT In those cases, the Tribunal accepted that Fijian-Indians sometimes face instances of discrimination but that the discrimination encountered, including in obtaining employment, does not typically reach a level of serious harm such as to constitute being persecuted.

10 10 [40] Further, in recent times Fiji has seen a return to democracy with the holding of elections on 17 September The United States Department of State s Country Reports on Human Rights Practices: Fiji (25 June 2015) reports that the elections were: deemed credible and broadly reflecting the will of the Fijian people by the Australian-led Multinational Observer Group [41] The Department of State s more recent report on Fiji (13 April 2016) notes some continuing improvement in terms of respect for the rights of Fijian-Indians. While tensions remain over some issues such as land ownership and the dominance of ethnic Fijians in the civil service, the government is opposed to such discrimination. As the Department of State notes: Tension between ethnic Fijians and the Indo-Fijian minority was a longstanding problem. Indigenous Fijians, or itaukei, make up an estimated 58 percent of the population, Indo-Fijians comprise 36 percent, and the remaining 6 percent is composed of Europeans, Chinese, Rotuman, and other Pacific Islander communities. The abrogated constitution contained a nonjusticiable compact that cited the paramountcy of Fijian interests as a guiding principle and provided for affirmative action and social justice programs to secure effective equality for ethnic Fijians and Rotumans, as well as for other communities. The compact chiefly benefited the indigenous Fijian majority, although Indo-Fijians dominated the commercial sector. The government publicly stated its opposition to such policies, which it characterized as racist, and called for the elimination of discriminatory laws and practices that favor one race over another. [42] Taking the jurisprudence and the more recent country information into account, the evidence does not establish that the appellants face a real chance of discrimination amounting to being persecuted. [43] The Tribunal is satisfied that neither of the appellants faces a real chance of serious harm on return to Fiji. Neither of them has a well-founded fear of being persecuted in Fiji. Convention reason [44] Having regard to the above finding, it is not necessary to address this issue. Conclusion on Claims to Refugee Status [45] For the above reasons, the appellants are not entitled to be recognised as refugees under section 129 of the Act.

11 11 The Convention Against Torture [46] Section 130(1) of the Act provides that: A person must be recognised as a protected person in New Zealand under the Convention Against Torture if there are substantial grounds for believing that he or she would be in danger of being subjected to torture if deported from New Zealand. Assessment of Claim under the Convention Against Torture [47] The appellants rely on the same evidence and submissions under this aspect of their claims as they rely on in terms of their refugee claims. They provide no evidence that either of them is in danger of being tortured. For the reasons given in relation to the refugee claims, there are no substantial grounds for believing that either of the appellants is in danger of being tortured if returned to Fiji. The ICCPR [48] Section 131 of the Act provides that: (1) A person must be recognised as a protected person in New Zealand under the Covenant on Civil and Political Rights if there are substantial grounds for believing that he or she would be in danger of being subjected to arbitrary deprivation of life or cruel treatment if deported from New Zealand.... (6) In this section, cruel treatment means cruel, inhuman, or degrading treatment or punishment. Assessment of the Claim under the ICCPR [49] Again, the appellants rely on the same evidence and submissions in support of their appeals under section 131 as they did to support their appeals under the Refugee Convention and the Convention Against Torture. [50] Just as neither of the appellants faces a real chance of cruel, inhuman or degrading treatment, or of arbitrary deprivation of life, as a form of being persecuted in the context of the refugee enquiry, neither is either of them in danger of it in the context of the ICCPR. The seriousness of harm inherent in cruel, inhuman of degrading treatment is no lesser in the protected person jurisdiction than it is in the refugee jurisdiction see, in this regard, BG (Fiji) [2012] NZIPT

12 12 [51] For the sake of completeness, even if there were substantial grounds for believing that the appellants were in danger of serious harm by way of socioeconomic deprivation (which, for the reasons above, they are not), it would not be the result of the appellants being treated in any way. The treatment element of cruel, inhuman or degrading treatment is a key requirement see BG (Fiji) [2012] NZIPT at [136]-[159]. Absent some discriminatory cause, a return to cruel, inhuman or degrading circumstances does not amount to treatment. [52] Nor does the evidence support any finding that the appellants are in danger of arbitrary deprivation of life if they return to Fiji. [53] The appellants are not protected persons under section 131 of the Act. CONCLUSION [54] For the foregoing reasons, the Tribunal finds that the appellants: (a) (b) (c) are not refugees within the meaning of the Refugee Convention; are not protected persons within the meaning of the Convention Against Torture; are not protected persons within the meaning of the International Covenant on Civil and Political Rights. [55] The appeals are dismissed. C M Treadwell C M Treadwell Member Certified to be the Research Copy released for publication. C M Treadwell Member