1501062 (Refugee)

1501062 (Refugee) [2018] AATA 2528 (26 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1501062
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Brendan Darcy
DATE:26 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 26 March 2018 at 12:58pm
CATCHWORDS
Refugee – Protection visa – Fiji – Social group – Whistle-blower – Corruption of school board – Political links – State protection unavailable
LEGISLATION
Migration Act 1958, ss 36, 65, 91
Migration Regulations 1994, Schedule 2, rr 1.05A, 1.12(4)(b)
CASES
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of the Republic of Fiji, applied for the visas [in] January 2014 and the Minister’s delegate refused to grant the visas [in] January 2015.
For the purposes of this decision, the primary or first named applicant[is] referred to as the first applicant; the secondary or second named applicant[is] referred to as the second applicant; the tertiary or third named applicant[is] referred to as the third applicant; the fourth named applicant[is] referred to as the fourth applicant.
The applicants applied to have the delegate’s decision reviewed by the Tribunal, differently constituted, on 23 January 2015 with the decision record attached.
The applicants appeared before the Tribunal on 12 July 2016 to give evidence and present arguments at the [offices] of the Tribunal. The applicants were represented in relation to the review by their registered migration agent.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly 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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spousal relationships and dependents.
CONSIDERATION OF CLAIMS AND EVIDENCE
As stated above, for the purposes of this decision, the primary or first named applicant, [is] referred to as the first applicant; the secondary or second named applicant[is] referred to as the second applicant; the tertiary or third named applicant[is] referred to as the third applicant; the fourth named applicant[is] referred to as the fourth applicant.
The first applicant claims to be born on [date] in Suva in the Fijian Islands and to be a citizen of the Republic of Fiji. On departmental file is a certified copy of the applicant’s birth certificate and passport, both issued by the Fijian authorities.[1]
[1] DIBP Folio 29 & 33
The second applicant claims to be born on [date] [in] the Fijian Islands and to be a citizen of the Republic of Fiji. On departmental file is a certified copy of the applicant’s birth certificate and passport, both issued by the Fijian authorities.[2]
[2] DIBP Folio 28 & 32
The second applicant claims to be the spouse of the first applicant with whom he had two children. Submitted to the Department as part of their applications for protection visa was a certified copy of the marriage certificate indicating the first and second applicants were married [in] March 2002 in Fiji. The marriage certificate also indicates the first and second applicants were divorcés at the time of their marriage; that the first applicant was a school teacher; and that the second applicant was [an occupation].[3]
[3] DIBP Folio 25
At the scheduled hearing, the first and second applicants both claim they do not have any children from their previous marriages and that their respective marriages ended amicably.
The third applicant claims to be born on [date] in Suva in the Fijian Islands and to be a citizen of the Republic of Fiji. On departmental file is a certified copy of the applicant’s birth certificate and passport, both issued by the Fijian authorities.[4] The birth certificate indicates the third applicant is the biological child of the first and second applicants.
[4] DIBP Folio 27 & 31
The first and second applicants both claims they do not have any children from their previous marriages.
The fourth applicant claims to be born on [date] in Suva in the Fijian Islands and to be a citizen of the Republic of Fiji. On departmental file is a certified copy of the applicant’s birth certificate and passport, both issued by the Fijian authorities.[5] The birth certificate indicates the fourth applicant is the biological child of the first and second applicants.
[5] DIBP Folio 26 & 30
The first applicant lodged an offshore application for a [student] visa [in] December 2012 and was granted the student visa [in] January 2013. The other applicants were granted student visas as subsequent visa holders by virtue of being members of the same family as the first applicant.
The first applicant arrived in Australia [in] January 2013 and her student visa ceased [in] March 2014. The second, third and fourth applicants arrived in Australia [in] January 2013. The applicants lodged class XA subclass 866 protection visas [in] January 2014 and were subsequently granted associated bridging visas.
The first applicant made written claims for protection in her 866C form at the time of applicant which include:
·The first applicant came to Australia to study at [a university];
·The first applicant has been continuously accused by military officers for not agreeing the school’s management in the [District 1]; that there were missing funds from the school’s accounts and that she disagreed in front of family members during her time as [a teacher] of this school;
·The first applicant claims that misinformation about the first applicant’s character was provided to the Department of Education and accusations were made against the first applicant as someone who created tensions among community leaders;
·The first applicant claims she fears she will be victimised and discriminated against as [an official] for the [District 1] School was [a government official], [Mr A];
·The first applicant claimed that her name was put forward to the Department of Immigration and was placed on a watch list and that she was aware of this through a phone conversation with [Mr B], [details deleted];
·The first applicant claims military officers work under the order of [Mr A]; that she received threats by military officers while at school, at her quarters and over the phone; that the first applicant made complaints to the Department of Education but the officials were too afraid to act on them; and because the military controls Fiji, such people will confront her if she returns and violate her human rights;
·The first applicant claims that as [an official] of the school, [Mr A], held excessive influence on the running of the school, particularly in matters pertaining to the financial record keeping of that school;
·The first applicant also stated that she is a member of the Social Democratic Liberal Party (SODELPA) and she stated the first applicant’s association with an opposition political party exacerbated her poor relationship that existed between herself and the school [official];
·The first applicant claims to belong to the Methodist faith tradition (a Protestant denomination of Christianity) and that she speaks, reads and writes in English and Fijian (i-Taureki).
On department file are a number of letters to support the applicant’s claims. These include
·An undated letter from the Methodist Church in Fiji signed by [a named person];[6]
·A signed letter dated [November] 2013 by [the] pastor of the [District 1] Methodist Church supporting the first applicants’ claims;[7]
·A letter from the Fiji Teachers’ Registration Board with a receipt attached dated [January] 2011;[8]
·Property documents in the second applicant’s name;[9]
·A payment voucher and a cash sale receipt of [amount] dollars from a [retailer] for the [District 1] School which the first applicant claims is a fake cash sales receipt prepared by the school committee; [10]
·A letter from the Social Democratic Liberal Party dated [November] 132 signed by [an official], indicating the first applicant’s salary was ceased by Fiji’s Ministry of Education two weeks after the applicants arrived in Australia;[11]
·A ltter dated [November] 2013 by [Mr B] , a parent of the [District 1] School supporting the claims of the first applicant; that she was [a teacher] of the school at the same time as [Mr A] was [an official] of the Board in 2011-2012; that the board was involved in financial irregularity; that the Education Department did not take action; that the first applicant was question on school grounds causing her embarrassment; that [Mr A] tried to have the first applicant posted to another school; and that [Mr B] had heard that the rumours that the first applicant was going to be put on Fiji’s watch list.[12]
[6] DIBP Folio 19
[7] DIBP Folio 24
[8] DIBP Folio 18
[9] DIBP Folio 7-13
[10] DIBP Folio 14-16
[11] DIBP Folio 21
[12] DIBP Folio 22-23
Prior to the scheduled hearing, the applicants’ representative submitted a number of newspaper articles and documents in support of the first applicant’s claims along with a statement of claims (unsigned and dated statutory declaration).[13]
[13] AAT Folio 45-50
The statement of claimed is dated 6 July 2016 has additional details about the first applicant’s claims including that [an official] of the board was a retired teacher named [Mr C] whose [relative] is [a government official], [Mr D]. The first applicant claimed that she approached the Minister in a function at the end of 2012 and the Minister made an undertaking to speak personally to [Mr A].
The first applicant also claimed that her friend, [Mr B], had continued to pursue the matter on the first applicant’s behalf by taking a letter to the Opposition which the first applicant claims was leaked. This led to [Mr B] being detained for two days and questioned by military and police officers.
Submitted documents include a letter dated [December] 2011 by [Mr B], the abovementioned parent of one of the pupil’s at [District 1] School complaining to the Education Office that the school’s AGM minutes in 2010 had never been held although he was aware minutes and a financial report had been submitted.[14]
[14] AAT Folio 65
There is handwritten file notes outlining a number of key events indicating it had been signed by the first applicant as [a] teacher. The file note is also stamped with the school’s official stamp with the date [February] 2015: One entry is dated [April] 2011 and it states the first applicant received a visit from an official from the Prime Minister’s office about gathering information about misused funds by [Mr A]and that the visit had no ID to officially identify him. [In] November 2011, the file note states the first applicant received a phone call from the school secretary do register his unhappiness about the Turaga ni Vannas (village head) visit [in] November 2011. It adds the first applicant visited the Suva Education office to state she was uncomfortable with the phone call with the school secretary. Another entry dated [November] 2011 dates the first applicant as [a] teacher received a team from the Prime Minister’s Office to discuss the event that hammed. [15]
[15] AAT Folio 68

Submitted to the Tribunal was also a letter from [a person] claiming to a traditional village leader in [District 1]. The village leader claims to have been a witness and to have been informed on numerous occasions from 2011 and 2012 to military officers to wan and threaten the first applicant concerning reporting the misuse of school funds to the Department of Education. [16]
[16] AAT Folio 70-71
Also submitted to the Tribunal was a letter claiming to be signed by the first applicant and dated [in] September 2012. The letter is written to the Suva Education Office notifying officials about financial irregularities and outlining the first applicant’s numerous unsuccessful attempts to discuss with the school [official], [Mr A] about the misuse of funds and the lack of accountability.
A delegate on behalf of the Minister refused to grant the applicants protection visas [in] January 2015.
The applicants applied to the Tribunal to have the delegate’s refusal decision reviewed on 23 January 2015.
Oral Evidence at the Scheduled Hearing
On 12 July 2016, the applicants attended a scheduled [hearing]. They were assisted by an interpreter in the Fijian and English languages. They were also assisted by their appointed representative. The third and fourth applicants, as minors, did not provide oral evidence.
Post Hearing Submission
On 26 September 2017, the applicant’s representative submitted many of the documents already submitted to the Department and the Tribunal.
Country Information: Fiji
Situation in Fiji following September 2014 elections
Country information before the Tribunal indicates that Fiji held general elections on 17 September 2014 in accordance with the constitution promulgated in 2013 and following eight years of military rule. In a contest deemed credible and “broadly reflecting the will of the Fijian people” by the Australian-led Multinational Observer Group, citizens elected 50 new parliamentarians. Josaia Voreqe (Frank) Bainimarama’s Fiji First Party won 32 of the 50 seats and he was sworn in as prime minister. Bainimarama led a bloodless coup in 2006. In 2009 his interim government abrogated the existing constitution and then ruled by decree until national elections returned the country to a constitutional republic during the year. Civilian authorities regained effective control over the security forces after the general elections.[17]
[17] US State Department Human Rights Practices Reports, Human Rights Report 2014 Fiji, (accessed 10 July 2015). See also CXBD6A0DE4520: "Human Rights and Democracy Report - Case Study: Fiji Elections 2014", United Kingdom: Foreign and Commonwealth Office, 12 March 2015,
The 2015 Department of Foreign Affairs and Trade (DFAT) Country Report on Fiji states in relation to the security situation[18]:
2.48 Fiji is generally stable and secure. The 2006 coup was non-violent and did not affect the country’s overall security. Elections in 2014 were calm and free of violence. Security services, including police and military, are well-resourced and maintain effective control of the country
[18] Department of Foreign Affairs and Trade (DFAT) Country Report on Fiji, 14 April 2015, p 9
In relation to the treatment those expressing political opposition in Fiji, the 2015 DFAT Country Report – Fiji provides the following information as to the situation following the election of the Bainimarama government:
3.70 Fiji’s constitution guarantees freedom of speech, expression and publication, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
3.71 A range of decrees in place prior to the 2013 Constitution limits these rights in practice. In particular, The Public Order (Amendment) Decree 2012 permits the Commissioner of Police to prohibit or subject to such conditions as he/she sees fit any procession, meeting or assembly on the grounds of public safety or public order. Under this decree, from June 2012 onward, NGOs, political parties and others were required to seek permits to hold public meetings. At times these permits were withheld (further detail is provided below at relevant sub-sections). The implementation of this policy gradually became less strict, and by late 2014 political groups did not generally need to seek permission to hold public meetings. Police presence was however common at known political events.
3.72 Other decrees which have been used in practice to limit the freedom of expression, assembly and association include the Essential National Industries Decree 2011, Media Industry Development Decree 2010, Political Parties Decree 2013 and the Electoral Decree 2014. Each of these decrees is covered in more detail at relevant subsections, below.
3.73 In practice, the environment for the public expression of political opinion in late 2014 was more open than in previous years. Public commentary on political issues, including criticism of government policies, is permitted and occurs regularly. The media is increasingly open, and regularly carries articles outlining opposition political party views, or on issues which might embarrass the government. Public gatherings are permitted, including, for example, to discuss the outcomes of the 2014 election. At times such gatherings include robust political criticism of Fiji First and the government, though most commentators are circumspect in any public criticism of Prime Minister Bainimarama or Attorney-General Sayed-Khaiyum.
3.74 However, some uncertainty remains about the permissible limits on public commentary. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion. In general, DFAT assesses that those at risk are high-profile public figures, including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy. Examples and further information on the risks to specific groups are given below.
In relation to non-government organisations/human rights activists, the DFAT report observes that the judicial system can sometimes be used to constrain critical commentary by NGO leaders and the security services are sometimes sued to harass and intimidate human rights activists. Overall, DFAT assesses those members of NGOs and human rights activists in Fiji, who are outspoken in their opposition to the government, or who engage in public protests critical of the government, are at a moderate risk of monitoring and harassment by the military and of harassment through the court system.[19]
[19] Department of Foreign Affairs and Trade (DFAT) Country Report on Fiji, 14 April 2015, para 3.78, 3.79, 3.80
The Freedom in the World Report 2015 Fiji [20] provided the following information:
a.Although opposition parties have not succeeded in generating widespread voter support, there are no legal restrictions on the ability of opposition parties to campaign or participate in elections. Fiji First (launched by Prime Minister Bainimarama in March), Fiji United Freedom Party, Fiji Labor Party, NFP, One Fiji Party, People's Democratic Party, and SODELPA are the approved parties .
b.Under the current electoral system, and in contrast to the previous system, no ethnic group has reserved seats or receives preferential treatment.
c.Since the election of the new parliament, political transparency has increased through measures such as live internet broadcast of the inaugural legislative session, parliamentary sittings open to the public, official asset disclosures, and published meeting notes. The national budget is now subject to meaningful legislative review and public analysis, and is also posted online. However, despite promises from the transitional government that a formal freedom of information framework would be developed, no concrete proposals had surfaced by year's end. Some opposition members have complained that the Fiji First-dominated parliament passes government bills and budgets without allowing adequate time for review and questions.
d.There were no confirmed reports of government restrictions on private discussion on political matters or other sensitive topics in 2014. Personal blogs and other forms of social media, both for and against the interim government, operated with relative freedom, unlike traditional media.
e.There were no reports of serious police misconduct in 2014. However, prisons are overcrowded and have poor sanitary and living conditions.
f.There have been fewer politically motivated arrests since greater political transparency was ushered in by the September elections. The 2013 constitution grants amnesty to those involved in the 2006 military coup.
g.Indigenous Fijians receive preferential treatment in many areas despite multiple actions by the interim government to eliminate it.
[20] Freedom House, "Freedom in the World 2015 - Fiji", , NG5A1E6BC195, >
US Department Of State’s 2014 Human Rights Report referred to the following human rights problems: restrictions on freedoms of speech, assembly, and movement; government harassment and intimidation of the media, political opponents, nongovernmental organizations (NGOs), and human rights and labour activists; and restrictions on trade union and collective bargaining rights as well as severe limitations on the ability of workers in certain sectors to strike. Other human rights problems included cases of police and military abuse of persons in custody, poor prison conditions, interference with judicial independence, government corruption, violence and discrimination against women, sexual exploitation of children, and deep ethnic divisions. The government failed to prosecute or punish some security forces officials who committed abuses, but it prosecuted or punished most officials who committed abuses elsewhere in the government. Impunity was a problem.
Amnesty International’s 2014/15 report in respect of Fiji acknowledged the elections held in September, however also referred to new electoral laws having expanded restrictions on freedom of expression and a prevailing climate of fear and self-censorship and abuses by security forces continuing to occur, with one reported death in police custody in August. [21]
[21] >
In August 2015, the Australian Broadcasting Corporation reported that 65 people in Fiji had been arrested and charged with sedition and inciting political violence during the month of August. Some of the arrested had been charged with ‘trying to form a separate Christian state while others are alleged to have used firearms and been involved in military-style training’. Defence lawyer Aman Ravindra-Singh claimed that he had not yet received any evidence from prosecutors and police. Commenting on the case, Mr Ravindra-Singh stated that:
the police and prosecution had created a climate of fear and insecurity over the people and citizens of Fiji, adding that the local media had been censored with regards to the case.[22]
[22] ‘Fiji defence lawyer slams lack of evidence against clients charged with sedition; military deployed in investigation’ 2015, Australian Broadcasting Corporation, 20 August < Accessed 19 October 2015 <CXBD6A0DE13020>
In August 2015, Mr Bainimarama was reported to have delivered a speech in which he warned of ‘severe punishment and many years in jail’ for anyone attempting to form a breakaway state or overthrow the government. Mr Bainimarama claimed that ‘high profile’ figures in Australia were plotting to bring down his government and that these figures would be ‘tracked down and brought to justice’. Mr Bainimarama was also reported to have criticised the opposition party SODELPA for not supporting his condemnation of those he claimed were threatening the integrity of Fiji. The opposition party SODELPA responded to Mr Bainaimarama’s criticism by claiming that his ‘threats over sedition are becoming aggressive and similar in tone to his behaviour before the 2006 coup’. A separate media report on the same speech delivered by Mr Bainimarama in August 2015 claimed that he had also called on Fijians to report anyone to the police who was involved in plotting against the government.[23]
[23] ‘FIJI: PM warns against 'plotters' and opposition cries 'hypocrisy’ 2015, Pacific Media Centre, 31 August < Accessed 19 October 2015 <CXBD6A0DE14716>
Information concerning the sudden resignation of the Police Commissioner, Ben Groenewald and his replacement by former Land Force commander, Sitivenu Qiliho is confirmed in sources consulted by the Tribunal.[24] Information was located referring to a statement from Mr Groenewald that his abrupt exit from the force was largely because of military interference in peacetime policing.[25]
Opposition political parties
[24] CXBD6A0DE15927: "UN in Fiji calls for police to uphold human rights", Radio New Zealand International, 13 November 2015, (Opens in a new window);
[25] CXBD6A0DE16211: "Exit 'reason'", Fiji Times, The, 20 November 2015, (Opens in a new window)
In relation to opposition political parties, DFAT notes that the 2013 Constitution guarantees freedom of operation for political parties and a range of opposition political parties were able to contest the 2014 elections. Though it also noted most representatives of opposition political parties reported they were routinely monitored and followed by police and military during the campaign and credible claims made that government used a range of government agencies to harass and impede opposition political parties, such as tax audits, withholding re-registration as a legal practitioner, or investigations by the Fiji Independent Commission Against Corruption (FICAC) Overall, DFAT assesses that senior members of opposition political parties (i.e., those running for office) in Fiji are at a moderate risk of being monitored and intimidated by security services. They are at a low risk of being arbitrarily detained or otherwise harassed. The leaders of opposition political parties are at a moderate risk of being harassed, including through the judicial system.[26]
[26] Department of Foreign Affairs and Trade (DFAT) Country Report on Fiji, 14 April 2015, para 3.82, 3.84
According to the same country information, although Fiji has a long history of functional democratic rule, over the last thirty years has been marked by political instability, including four coups, the imposition of martial law and multiple instances of the constitution being abrogated. As of late 2014, following the elections, and as a result of the return to constitutional government, the rule of law in Fiji has generally improved in comparison to the situation prior to the elections. For most ordinary citizens, the police and military are effective and impartial. However, the ability of institutional checks and balances on government power (including the Parliament, the judiciary and the media) to actually restrain the government from taking unilateral action is limited. The country information goes on to state that the independence of the judiciary and police has diminished and this may affect state protection in certain circumstances.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of Reference
The applicants provided certified copies of the applicants’ passport and birth certificates which in on departmental file. Those passports were issued by the Republic of Fiji. Based on these documents and without evidence to the contrary, the Tribunal finds that the first and second applicants are citizens of the Republic of Fiji, that the Republic of Fiji is the first and second applicants’ country of nationality for the purposes of the Refugees Convention, and that Fiji is their receiving country for the purposes of complementary protection.
The third and fourth applicants also provided their copies of their passport and birth certificates to the Department, indicating that they are minors and that they were born in Fiji. Without evidence to the contrary, the Tribunal finds that the third and fourth applicants are citizens of the Republic of Fiji, that Republic of Fiji is the third and fourth applicants’ country of nationality for the purposes of the Refugees Convention, and that Fiji is their receiving country for the purposes of complementary protection.
Based on the evidence presently before me, I am not satisfied the applicants have statutory effective protection in any safe third country pursuant to subsections 36(3)-(5A) of the Act.
Membership of the same family unit
Second Applicant
At the time of application with the Department, the applicants submitted a certified copy of a marriage certificate indicating that the first and the second applicants were married in Fiji [in] 2008. Both of these applicants presented at the scheduled hearing and claimed that the third and fourth applicants were also their biological children. The first and second applicants gave oral testimony indicating that they were divorced before they were remarried to each other. The first applicant mentioned that she had children from these earlier marriages; while the second applicant claimed that he had not. Based on the available evidence and with no evidence to the contrary, the Tribunal accepts these specific claims to be the case.
The Tribunal is accordingly satisfied the first and second applicants are in a genuine spousal relationship and that the second applicant satisfied clause 1.12(4)(a) of the Migration Regulations, that she has membership of the same family unit as the first applicant for the purposes of this application for review.
Third and Fourth Applicant
At the time of application and the hearing, the first and second applicant claimed the third and fourth applicants were minors and that they were their biological children. During the scheduled hearing, the third and fourth applicant appeared before the Tribunal and the Tribunal cited their passports indicating they were minors. With no evidence to the contrary, the Tribunal accepts the third and fourth applicants were minors.
Under clause 1.12(4)(b) of the Migration Regulations, a person can be considered a member of the principal applicant's family unit if the person is a dependent child of the family head or of a spouse or de facto partner of the family head. Dependent child is defined by r.1.05A as wholly or substantially reliant on the other person for financial, psychological and physical support. Based on the evidence above, the Tribunal finds that third and fourth applicants who are minors are members of the same family unit as first applicant and does satisfy regulations 1.12 and 1.05A of the Migration Regulations.
Findings
Accepted Claims
The Tribunal has carefully considered the written and oral evidence for the applicants’ claims for protection as well the oral testimony from the applicant’s witness. The first applicant has submitted an array of documentary evidence and long detailed statements about her fears in returning to Fiji. It is accepted by the Tribunal that the first and second applicants have provided mostly consistent written, oral and documentary evidence to support her claims.

The Tribunal accepts that the applicants were born in Fiji as claimed, based on the submitted evidence including certified copies of birth certificates. It is accepted that the applicants. It is accepted that the first applicant originally arrived in Australia in 1985 and visited one a few other occasions.
Based on the weight of testimony from third parties and the documentary evidence, The Tribunal accepts that the first applicant has been a teacher and that she had a role as [teacher] in a district school in [District 1], about [distance and location] of Suva, Fiji’s capital and largest city, and that she and the other applicants had been long term residents in [District 1].
It is also accepted that the applicants’ belong to the Methodist faith tradition within Christianity and that they are indigenous Fijians who speak, read and write English and i-Taukei.
The first applicant further claimed that she was also a member of the SODELPA, typical of many teachers from an Methodist and Indigenous Fijian background, and that this heightened her marital connections to the SODELPA as it was argued that the second applicant’s [relative] was the first cousin of the leader of the Opposition. The first applicant encouraged [their relative] to take up her cause but claimed she was too afraid to do so. Based on the first applicant’s overall favourable credibility, the Tribunal accepts that the first applicant is a Methodist and a supporter of the SODELPA. On the departmental file, the first applicant submitted a letter from the General Secretary of the Social Democratic Liberal Party (SODELPA) – the party affiliated with Fiji’s main opposition party. In that letter the General Secretary claims the first applicant is “a well-known strong support of he was Soqosoqo Duavata ni Lewenivuanua (SDL) party supporter’. There is no claim in the letter that she was ever a member of the party and there is no specific claims of harm or mistreatment he experienced as a result of his political affiliation in this written or by the first applicant in her oral evidence. Based on this information, the Tribunal does not accept the first applicant was or is a member of the SDL or SODELPA. It further finds that while she has anti-government opinions and informally supports SODELPA, the first applicant had not been harmed based on support of this party or any imputed membership belonging to this party in the past.
Claims to be a Whistle Blower
The first applicant claimed she was a witness and a complaint against an influential local leader who was involved in malfeasance as a board member to a school in a provincial town, That board member, it is claimed, was [Mr C], a retired teacher. The first applicant claimed he used his connections with his Ministers in the Fijian government, namely [Mr D] and [Mr A] to halt her whistleblowing activities in exposing the board’s malfeasance to the Education Board. The first applicant claimed that she and her family departed Fiji in 2014? Because she was a very vocal person in the community who had spoiled the image of powerful Fijian men, both locally and nationally. She claimed that a concerned parent, [Mr B], had also raised concerns and had been arbitrarily detained in the past due to his own whistle blowing activities.
There is also the oral evidence from the second applicant to consider, including that he had personally received phone calls from soldiers or others in authority.
Consideration of the Evidence of Alleged Persecutors
When the Tribunal undertook research of [Mr A], it was apparent that the individual has his political base in [Province 1] which is includes [District 1], township and [other] area. It is also apparent that this individual has a long history of surviving both coups and corruption scandals. Most notably, [Mr A] [details deleted].[27] [Details deleted].[28] [details deleted].[29]
[27] [Source deleted].
[28] [Source deleted].
[29] [Source deleted].
This information strongly indicates to the Tribunal that while he is now [retired], he was a senior [government official] at the time of the applicants’ departure, that he remains an important local figure in [District 1] in 2013, and it is reasonable to assume that he has maintained his political connections with those in authority, especially among elected representatives for Fiji First Party and Minister of the Bainimarama-led Fijian government.
Among those in [still active] is [Mr D] who is mentioned in the applicant’s claims as the brother of one of those she suspects of malfeasance. [Mr D] [details deleted].
This information strongly indicates to the Tribunal that [Mr D] does remain an influential political and well connected figure [and] that [Mr D] and [Mr A], a former [government official], enjoy had a long standing association in politics and in obscuring the financial accountability of a scandalised government scheme, as well as mutual relationship with [Mr C], a [District 1] school board member, supporting the first applicant’s claims she fear collusion between the two individuals.
Membership of a Particular Social Group
As discussed during the hearing, the essential and significant reason the first applicant claimed to have a well-founded fear of persecution that would satisfy paragraphs 5J(1)(a) and (4)(a) is the claim that the first applicant is a whistle-blower and that this is the first applicant’s membership of a particular social group.
In parenthesis, the Tribunal finds that being a whistle-blower as a person who exposes information or activities that could be deemed as corruption, malfeasance or other illegal or unethical wrongdoing within an organisation that is in the public interest does constitute a membership of a particular social group. This is based on whistle-blowers being identifiable with a recognizable or cognizable group with a society that shares some interest or experience in common. In this regard, the Tribunal has also considered the decisions by Justice Gummow in Applicant A[30] and Justice McHugh in Applicant S[31].
[30] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
[31] Applicant S v MIMA (2004) 217 CLR 387 at [69] per McHugh J.
The applicants submitted a number of documents and made specific claims during the hearing that the first applicant is a whistle-blower. First the applicants have claimed the first applicant expressed her concerns about malfeasance by a school board in [District 1] where she was a teacher and school administrator; that the malfeasance included the lack of financial statements for a period of time between 2006 and 2010 and that school funds were being spent for personal use. The first applicant claimed that she had reported the malfeasance to the Education Department in Suva and that she informed [an official] of the local school board, [Mr A], about her concerns and that it had been reported. Attached to these protection visa applications is a letter signed by the first applicant to the Education Office to demonstrate her concerns. She claimed the Education Department continued to remind the board to provide financial statements but the local school board had falsely created the statements and attached faked receipts, one of which [was] attached as documentary evidence for the Department and Tribunal to consider. The applicants also attached a copy of the late financial statement dated in November 2011.
Other evidence to consider that the first applicant was a whistle-blower was the letter by [Mr B], a concern parent from [District 1]. The letter states the first applicant was [a] teacher in 2011-2012; that the school board [official] was [Mr A] and that [another official] was [Mr A]’s [employee]. [Mr B] also claimed that continued to pursue the matter with the Education Department after the applicants had departed.
Based on these favourable credibility findings about the applicants’ oral and documentary, the Tribunal accepts that the first applicant can reasonably be described as a whistle-blower with regards to malfeasance where board members were alleged to have acted corruptly and that she did genuinely report the matter to the relevant authority, the Education Department based in the Fijian capital city. Accordingly, the Tribunal accepts that the first applicant was a whistle-blower in the past, as claimed. Furthermore the Tribunal accepts that the applicants departed Fiji because the first applicant had a genuine personally held fear of persecution based on her claims to be a whistle-blower as outlined.
Findings regarding the First Applicant
The Tribunal has considered whether the fist applicant has a well-founded fear of persecution for a Convention reasons. if she were to return to [District 1] in [Province 1].
In this regard, the Tribunal has found it credible that a vulnerable woman has genuine whistle blowing claims albeit pertaining to an otherwise small and obscure corruption incident in [District 1]. However as the whistleblowing is directed towards an alleged malfeasance involving a retired [government official], [Mr A] and a local, [Mr C], whose brother of that an existing [government official], [Mr D]. The Tribunal assesses that although the Fijian authorities have undertaken to measures to permit the reportage of corruption and human rights abuses, those institutions have been deliberately designed to be weakened in favour of powerful political actors whose reputations they jealously guard and who have the informal capacity to direct local police and other authorities for political purposes. The Tribunal is satisfied that [Mr A and Mr D] have the ongoing motivation to protect their personal and family reputations against accusations regarding petty corruption whereby they had corruptly misappropriated school money for personal purposes. It also accepted that these two individuals also have the capacity harass, monitor, economically frustrate, socially ostracise and even arbitrarily detain the first applicant, as they had done to [Mr B] (which the Tribunal accepts to be credible).
The Tribunal is satisfied that the applicant’s capacity to find work in [District 1] would be severely affected and that she will face a significant level of economic hardship if she were to return to this area of Fiji, given her profession as a teacher. In combination with this economic hardship, the Tribunal finds that the first applicant does face a real chance of ongoing and significant physical harassment that would satisfy s.91R(2)(b), if she were to return to [District 1]. The Tribunal is also satisfied that the essential and significant reason for the persecution will be her membership of a particular social group as a whistle blower and that the persecution involves ‘systemic and discriminatory conduct’ as required by s91R(1)(a) and (c). Therefore the Tribunal is satisfied that the first applicant has a well-founded fear of persecution if she had to return to [District 1], now or into the reasonable foreseeable future.
Having considered that the first applicant has a well-founded fear of persecution within a localised area, it has considered whether the first applicant has a well-founded fear of persecution anywhere outside of the [District 1], if she were to return to Fiji.
In this regard, the Tribunal is satisfied that former [government official] [Mr A], remains a significant figure in recent political Fiji history and contemporary society and that it is accepted that there is an actual political link between [Mr A] and [Mr D]. It is also the assessment of the Tribunal that [Mr A], a former [government official], has [details deleted]. In accepting these political ties and given that Fiji remains a small state where influential political actors continue to act with impunity and with little meaningful accountability.
According to the September 2017 DFAT country information report about Fiji, as a very small economy, Fiji has not been included in Transparency International’s recent Corruption Perceptions indices. However, it also states that corruption is perceived to be widespread, but not endemic in Fiji: in 2010, 12 per cent of surveyed Fijians reported paying a bribe. It is further noted that DFAT states Fiji’s 2013 Constitution contains a comprehensive Bill of Rights and alleged breaches of the Bill of Rights are justiciable in the High Court. The Constitution sets out the mandate and functions of a Human Rights and Anti-Discrimination Commission (FHRADC). However, the Bill of Rights is weakened by numerous caveats. Most significantly, any right can be restricted by law and during a state of emergency. A general ‘claw-back clause’ provides that any right can be limited where that limitation is ‘necessary’ and ‘prescribed by law’. Key rights including of association, expression and assembly can also be restricted on grounds relating to public safety, national security and the orderly conduct of elections.[32] It goes on to state that the Constitution establishes the FHRADC as the successor to the Fiji Human Rights Commission, but, like its predecessor, the law prohibits the FHRADC from investigating cases filed by individuals and organizations relating to the 2006 coup and the 2009 abrogation of the previous constitution.[33] There is country information that those in authority continue to act arbitrarily. For instance In July 2016, the FHRADC reportedly assisted with the case of young male who alleged police, while detaining him for interviewing as a crime suspect, beat him. There are also credible reports about nepotism and favouritism stemming from appointments and awarded contracts.
In this decision the Tribunal has considered that DFAT has assessed that high profile public figures, including the leaders of organisation, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention such as arrest or detention; that senior members of the opposition political parties in Fiji are at a moderate risk of being monitored and intimidated; that trade unionists, outspoken NGO and human rights activists are also at a moderate risk of monitoring harassment by the military or harassment through the court system.[34] Since Fiji’s September 2014 election, the first since the 2006 coup, there have been several accusations of torture committed by police officers in 2015 and 2016. Four such cases were detailed in Amnesty International’s 2016 report, ‘Beating Justice: How Fiji’s security forces get away with torture’. Although overall DFAT assesses that individuals who are critical of the government now face a low risk of torture, however events move fast in Fiji and it is conceivable for events to escalate quickly where torture could occur.[35]
DFAT also explains that while the 2013 Constitution provided for the right to freedom from cruel, inhuman, degrading or disproportionately severe treatment or punish; in practice, there are confirmed cases and credible allegations of violent treatment of prisoners by the police and military in recent years. In March 2013 a YouTube video emerged of escaped prisoner Iowane Benedito in handcuffs being beaten and sexually assaulted by police and military personnel and another escaped prisoner having a dog set upon him by police. The video attracted worldwide condemnation. Three police officers and two military officers have been charged with offences relating to Benedito’s assault and at the time of writing were awaiting trial. A similar event occurred in 2012, involving the alleged severe beating of five prison escapees.[36]
Amnesty International, however, reports that extrajudicial punishment is often meted out by the security forces in Fiji, resulting in severe injuries and sometime death and outline its concerns with examples in Fiji: Beating Justice: How Fiji’s Security Forces Get Away with Torture. [37] Of particular concern to this decision is this disturbing examples: Rajneel Singh (a witness) was been assaulted on three separate occasions by the security forces after reporting emails found on a computer at the internet café he owns, apparently disclosing criminal activity. In November 2015, he was picked up in a police vehicle, driven to a remote location where he was beaten, burned and left by the police. He complained about this incident and has since received ongoing threats and been assaulted on two occasions in 2016. On 26 November 2015, a police spokesperson said the alleged perpetrators were known to police, but no charges have been made.
[32] DFAT Country Information Report on Fiji, September 2017, DFAT, paragraph 2.39 and 2.40.
[33] DFAT Country Information Report on Fiji, September 2017, DFAT, paragraph 2.41 and 2.42.
[34] DFAT Country Information Report on Fiji, September 2017, DFAT, ‘Political Opinion’
[35] DFAT Country Information Report on Fiji, September 2017, DFAT, paragraph 4.8,4.8 and 4.10
[36] DFAT Country Information Report on Fiji, September 2017, DFAT, paragraph 4.12 and 4.13
[37] Amnesty International, 2016, >
As of late 2014, following the elections, and as a result of the return to constitutional government, the rule of law in Fiji has generally improved in comparison to the situation prior to the elections. For most ordinary citizens, the police and military are effective and impartial. However, the actual ability of institutional checks and balances on government power (including parliament, the judiciary and the media) to constrain government action is limited.[38] Overall, DFAT assesses those members of NGOs and human rights activists in Fiji who are outspoken in their opposition to the government, or who engage in public protests critical of the government, are at a moderate risk of monitoring and harassment by the military and of harassment through the court system.[39] At the opening speech during a UN workshop on the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment on 28 October 2016, the Prime Minister of Fiji has candidly identified the widespread use of significant physical ill-treatment wielded throughout the applicant’s country of national:
We have long had a culture in Fiji of people resorting to violence; whether it is against women in the home, instilling discipline in our children or the police attempting to extract confessions from criminal suspects. The culture of what we call the buturaki – the beating – is deeply ingrained in parts of the Fijian psyche.[40]
[38] DFAT Country Information Report on Fiji, September 2017, DFAT, paragraph 5.40.
[39] DFAT Country Information Report on Fiji, September 2017, DFAT, paragraph 3.61.
[40] Prime Minister Voreqe Bainimarama’s opening speech during the regional workshop on the UN Convention Against Torture and
Equally candidly the same Prime Minister has said in response to the earlier 2013 incident regarding Iowene Benedito that the buturaki remains indispensable:
At the end of the day, I will stick by my men, by the police officers or anyone else that might be named in this investigation... We cannot discard them just because they’ve done their duty in looking after the security of this nation and making sure we sleep peacefully at night [41]
[41] Michael Field, Bainimarama stands by Fiji police, Stuff (NZ), 9 March 2013, available at >
In the context of the weakened protective institutions for whistleblowing and given the personal circumstances of the first applicant in which she has accused an influential member of the ruling Fiji First Party, the Tribunal finds that the weight of country information points to there being a moderate risk of harassment, monitoring and arbitrary detention by the authorities in a small country where protections for whistle blowing is not strong. Given her ongoing efforts to raise a matter of minor corruption, the first applicant will not have any meaningful legal recourse to pursue a matter as one of the subjects of the applicant’s whistleblowing complain includes [Mr A], [and] a brother of a [government official]. While the first applicant has not been seriously harmed in the past and was not apprehended when she departed in 2013, the Tribunal’s assessment is primarily guided by a consideration of the available country information. Although the reported incidents of politically motivated violence are not numerous, the Tribunal cannot not discount the under-reporting of such recent incidents given the control of and intimidation towards the local media and non-government organisations by the authorities. Nor can it under-estimate, as the Prime Minister has described, a widespread and deeply ingrained culture of the buturaki, which invites the Tribunal to consider there is a real chance of significant physical ill-treatment if she were to return to Fiji. The Tribunal further assesses that as the first applicant will be targeted by those in authority; that they can act with impunity and that her association with the opposition heightens her risk, it does not have the confidence that such physical ill-treatment will not unpredictably sour into being significant physical-treatment, whereby the first applicant faces a real chance of being physically assaulted or abused while in detention or that the chance of such harm are not less than a real chance. Therefore the Tribunal assesses that the first applicant faces a real chance of harm that amounts to one of the kinds of harm non-exhaustively listed in s.91R(2)(c) and satisfies s.91R(1)(b), if she were to return to Fiji into the reasonably foreseeable future.

The Tribunal finds that the persecution feared by the first applicant comes within the Convention reasons of she has a membership of a particular social group, by virtue of her being a whistleblower which is heightened by her opposition to the current ruling party of Fiji and her association with Fiji’s leading opposition party. The Tribunal finds that the applicant's whistleblowing membership is the essential or significant reasons for the persecution which she fears, as required by paragraph 91R(1)(a) of the Act.
As the harm feared by the first applicant includes persons of substantial influence with the Fijian Government and the Fijian authorities continue to act in a arbitrarily and punitive manner towards perceived threats towards powerful parties, the Tribunal finds that state protection is not available to her, and that there is nowhere in Fiji, in the reasonably foreseeable future, where there is no appreciable risk of the persecution feared by the first applicant.
For the reasons given above, the Tribunal is satisfied that the first applicant has a well-founded fear of persecution in accordance with the Refugees Convention.
In accordance with Article 1A(2) of the Convention, the Tribunal is satisfied that the first applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, is unwilling to avail herself of the protection of that country. There is no information before the Tribunal to indicate that any of the exclusions set out in the Convention apply to the first applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the first applicant is a refugee.
In considering whether the first applicant is a person to whom Australia has protection obligations pursuant to s.36(2)(a), the Tribunal is obliged to consider the qualifying provisions in subsections 36(3), (4), (5) and (5A) of the Act.
There is no information before the Tribunal indicating that the first applicant has a present right to enter and reside in any other country. The Tribunal is therefore satisfied that the first applicant is not excluded from Australia's protection by s.36(3).
For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). The appropriate course is to remit the matter to the Department for reconsideration.
Findings regarding the Other Applicants
In the light of the Tribunal's finding that is satisfied the first applicant satisfies s.36(2)(a), it is not necessary to consider that whether the second, third and fourth applicants’ claims and circumstances satisfy the same or the alternative criteria.
As mentioned in an earlier finding, the Tribunal is satisfied that the second applicant is the spouse of the first applicant and is a member of the same family unit as the first applicant for the purposes of s.36(2)(b)(i). It is also satisfied that the third and fourth applicants are the dependent children of the first applicant and are members of the same family unit as the first applicant for the purposes of s.36(2)(b)(i).
As such, the fate of their applications depends on the outcome of the first applicant's application. It follows that the second, third and fourth applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
Conclusions
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

100. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the other named applicants are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i).
101. As such, the fate of their applications depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
102. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Brendan Darcy
Member

other Cruel, Inhuman or degrading treatment or punishment, delivered at Natadola Fiji on 28 October 2016

[2018] AATA 2528

26 March 2018

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Immigration

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Procedural Fairness

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