1614274 (Refugee)

1614274 (Refugee) [2018] AATA 5642 (20 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614274
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Frances Simmons
DATE:20 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 20 December 2018 at 5:20pm
CATCHWORDS
REFUGEE – protection visa – Fiji –– political opinion – discrimination against indigenous Fijians – economic hardship – mistreatment by the military and police – Fiji Native Government in Exile – medical condition – access medical services – no real chance of serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(H), 5(J), 5K-LA, 36, 65, 424A, 424(2), 499
Migration Regulation 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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

The applicants are citizens of Fiji. The first named applicant, [Ms A], is [age]. She first arrived in Australia [in] December 2006 and since then she has travelled in and out of Australia on multiple occasions. Her most recent arrival in Australia was [in] December 2015. She was accompanied by her husband, [Mr B], who is [age]. The applicants applied for protection visas on 28 March 2016.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The issue the Tribunal must determine is whether the applicants are owed protection obligations by Australia, either because the applicants are refugees or otherwise entitled to complementary protection. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicants are a married couple from Fiji who arrived in Australia [in] December 2015. The applicants lodged applications for protection visas on 28 March 2016.
In response to questions 89-96 of the protection visa application forms, the applicants gave the following reasons for seeking protection in Australia:
[Question 89: Why did you leave [Fiji]?] I am a strong supporter of the 2 Christian breakaway states of Nadroga/Navrosa and Ra, and this is being closely monitored by the Bainimarama regime. Bainimarama warns of severe punishment for sedition. And also, I associate with Ms Oni Kirwin and all those who are involved in Oni Kirwin have been forewarned by Bainimarama of the harm that awaits us if we go back to Fiji.
[Question 90: What do you think will happen to you if you return to Fiji?] There is military and police brutality happening in Fiji. The torture, rape and brutality continue unabated in Fiji. Death in custody has increased. I fear that this will happen to me if I return to Fiji.
[Question 93: Did you move, or try to move, to another part of that country(s) to seek safety?] The government of Fiji is over-militarised. My safety is at risk because of my involvement with Oni Kirwin and the recent breakaway of Nadroga-Navosa and Ra, the government in exile.
[Question 94: Do you think you will be harmed or mistreated if you return to Fiji?] I am a citizen of the Fiji Native Government in Exile, the breakaway Christian State of Nadroga-Navosa and Ra. I fear that I will be crushed by the Bainimarama Government because I am a follower of Oni Kirwin and also a member of Pacific Indigenous Samaritan Association Inc.
[Question 95: Do you think the authorities of Fiji can and will protect you if you go back?] The Bainimarama Government is over-militarised. The police does not have any power to protect me.
[Question 96: Do you think you would be able to relocate within Fiji?] No source of protection from the police. All ministries in Fiji are controlled by the military.
The applicants provided various documents to the Department including: a handwritten letter from [Ms A] to the Australian High Commission , a bank statement, photographs of the applicants’ house in [City 1] and the house they are building in their village, membership cards for the Fiji Native Government in Exile (FNGIE). The letter to the Australian High Commission from [Ms A] states in part:
It was the beginning of the year 2015 that we decided to come over to Australia to work… We are both retirees, after we retired we still had [an] outstanding home loan to pay off ….We lodged our visitors’ visa application .which was granted.
But I should honestly admit that we worked to make some money to help with our loan repayment as stated in the statement of account attached, from [Bank] in Fiji but we couldn’t make enough money as planned.
The delegate’s decision record accurately records the evidence the applicants provided during an interview with the delegate.[1]
[1] The Tribunal has listened to an audio recording of this interview.
The applicants told the delegate that they lived [on] Viti Levu Island from [years] and in [City 1] since 2013. They are married and have a mortgage on their home in [City 1]. They are also building a house in their village (photographs were provided). [Ms A], who was born in [year], was employed as a [occupation] for [number deleted] years. [Mr B], who was born in [year], was employed [by a company] for thirty years. They have [children] in Fiji. In Australia, the applicants worked [in Australian Town 1].
The applicants met Oni Kirwin around [March] 2016 when she gave a talk at [Australian Town 1]. They became members of the Pacific Indigenous Samaritan Association (PISAI) and had attended two PISAI meetings in [Australian Town 1]. The applicants opposed the decision to terminate the Great Council of Chiefs and said that everyone in Fiji felt fear and that they were unhappy with the government as they were removing the rights of Indigenous Fijians. Asked what she feared would happen upon return to Fiji, [Ms A] said that there was nothing that will happen but the inner person is being tortured because they disagree with what is happening in Fiji and they can’t do much, they can’t say anything. Evidence before the Tribunal
The applicants filed a copy of the delegate’s decision with their application for review. The applicants also submitted additional documentation, including:
(a) A letter from [a former official] in Fiji providing a ‘brief analysis’ of political events in Fiji since the 2006 coup and recommending a sympathetic consideration of the applicants’ case in light of the political situation as well as a doctor’s findings that the second named applicant has ‘multiple medical conditions that would be incurable in Fiji.’
(b) Various medical records relating to [Ms A] including but not limited to: a [report] stating that she has [a condition] which requires medical treatment and regular [monitoring]; and a letter from [Dr C], who writes that she has a [condition], is currently under the care of [a specialist] and returning to Fiji would be a detriment to her health.
(c) Various medical records relating to [Mr B] including but not limited to: records relating to his [treatment] and a letter from a [Dr C] (submitted [January] 2018) describing [Mr B]’s current [problems] and his past medical [history]. [Dr C] writes that if [Mr B] returns to Fiji it will be detrimental to his health and [Dr C] supports his application to remain in Australia for medical reasons.[2]
(d) A document titled ’17 decrees promulgated by the Bainimarama military regime’ which asserts that these decrees remove Indigenous rights from native Fijian speople and breach various international conventions.
[2] Tribunal file, f. 37 -66 and f.78-79
On 16 October 2018, the Tribunal wrote to the applicants pursuant to s.424A and s.424(2) of the Act. The combined letter:
(a) Invited the applicants’ comments on or response to information that the Tribunal considered would be part of the reason for affirming the decision under review. The information was that the applicants’ written claims in response to questions 86-96 of the protection visa application form were identical or substantially similar to other protection visa applications before the Tribunal. The letter explained this information was relevant to the review because the Tribunal might conclude that these claims were not personal to the applicants and were not credible or genuine. The letter explained that, subject their comments, this information would be the reason or part of the reason for affirming the decisions under review.
(b) Invited the applicants to provide a statement about the reasons that they left Fiji and the reasons that they did not want to return to Fiji now.
In response to the Tribunal’s invitation to comment pursuant to s 424A of the Act, the applicants stated:
It is true that more of the written reasons above have been found identical in wording with other protection visa applications. To be honest Oni Kirwin helped us [fill in] … our protection visa with claims above word by word with the other applicants. But I must say that most of the things really happened back home and some were ever worse.
The first named applicant also provided a handwritten response in response to the invitation to provide an updated statement of claims pursuant to s 424(2) of the Act. [Ms A] writes that:
·Just before their visas expired they met Oni Kirwin. Kirwin ‘helped most of the Fijians’ apply for protection visas in Victoria and at this time they became members of the PISAI. The PISAI strongly supported the Christian breakaway states of Nadroga and Ra.
·Before they left Fiji supporters of these two Christian breakaway states were taken to court. Some are still in jail. Oni Kirwin appeared on a Fiji newspaper because of her involvement with these two breakaway states and she is not allowed to come to Fiji by the Bainimarama government
·[Ms A] assumed her association with Oni Kirwin would enable her to speak up as a group against the Bainimarama government. Until now, nothing has happened.
·Anything can happen because it has already happened to innocent civilians. It is the applicants’ involvement with Kirwin that places them at risk. Because of their involvement with Kirwin, the Fiji authorities will not protect them. The government is over-militarised. People have no freedom of speech; no one could speak against the Bainimarama government.
·The applicant is ‘not quite sure’ who will harm her on return to Fiji. Supporters of Christian state of Nadroga Navosa and Ra are in prison and the members of the PISAI who are involved with Oni Kirwin are also at risk.
The applicants gave evidence with the assistance of an interpreter in the Fijian languages at a hearing on 12 December 2018.
The applicants told the Tribunal that they are both working in Australia. They came here on visitor visas hoping to find ‘some financial assistance to help them pay their mortgage’. Before they left Fiji they lived at a property in [City 1] and they are still making mortgage repayments on this [property]. They began living in the [City 1] property in 2008 after they retired. Their [adult] children live in Fiji [and] are employed in private and public sectors. One [child] is currently living in the [City 1] property.
The applicants expressed concern that the Fijian government enforced a retirement age of 55. The Tribunal put to the applicants the compulsory retirement age in public agencies was fifty-five, that the rationale was to reduce to youth employment.[3] [Mr B] said after he retired he struggled to make sufficient income from a [business] he started to cover the costs of the mortgage on their [City 1] property. They did not want to burden their children with their financial difficulties. They decided to travel to Australia where they have secured work, first in Victoria and more recently in Sydney, where [Mr B] is employed in a [casual] job and [Ms A] is employed full [time].
[3]
The applicants told the Tribunal about they have been diagnosed with certain medical conditions in Australia and sought treatment for these conditions. The Tribunal accepts that [Ms A] has been diagnosed with a [medical condition] and that she requires, and is currently receiving, medical treatment for this condition. [Mr B] was admitted to the hospital in Fiji for [specified pain] in Fiji and was subsequently diagnosed with a [condition] in Australia. He has received treatment for this issue and is doing [‘light work’].
The applicants were asked if they had ever experienced any harm in Fiji. Neither applicant claimed to have been personally harmed in the past but both expressed concern about having seen prominent people experience torture and that people were taken to military bases and into custody. [Ms A] said that they had no power in the community so they were afraid that things like this could happen to them. [Mr B] added that they were afraid that the freedom to voice your opinion was suppressed and also of becoming the object of intimidation.
The applicants referred to an article in Fiji Times in which the prime minister said that anyone overseas who criticised the government will be ‘crushed’. Ms Kirwin was banned from entering Fiji and they were afraid of what would happen because of their involvement with her and her group.
The Tribunal asked why they applied for a protection visa. [Ms A] recalled that when they were staying in [Australian Town 1] Ms Kirwin started promoting the protection visa. [Ms A] told the Tribunal that the claims contained in the protection visa application were dictated to her. [Ms A] also said that at the time they decided to apply for protection visas and join with Oni Kirwin they thought it would be an opportunity to voice their opinion about some of the disagreements with the government back home as it wasn’t really safe to do so in Fiji. At the same time it was an opportunity for them to do something for themselves and stay.
The applicants met Ms Kirwin [Australian Town 1]. After they moved to Sydney they attending [meetings], most recently in 2017. Asked whether they were still members of any organisations with which Kirwin was associated, the applicants said they were no longer with her, they had come out from the organisation, and they didn’t want to have anything to do with her. This was why she was no longer their authorised recipient (in relation to the review application). The applicants have not had any involvement in public political activity in Australia.
The Tribunal questioned the applicants about their political activity in Fiji and in Australia and invited their comment on DFAT’s assessment of the risks facing those engaged in different types of political activity, both in Fiji and in Australia. It was put to the applicants that in light of the fact that they gave evidence to the Tribunal that they were not politically active in Fiji, had not seen Ms Kirwin since 2017, and were not currently engaged in any political activity in Australia, the Tribunal might form the view that they would not seek to engage in any political activity if they returned to Fiji. The Tribunal also discussed with the applicants their economic circumstances and compulsory retirement in Fiji, their concerns that they would not be able to obtain medical treatment in Fiji and the treatment of Indigenous Fijians. Where relevant their evidence and the country information is discussed below in the assessment of claims and evidence.
Country information
The most recent DFAT report published in September 2017 provides the following information that is relevant to the applicant’s claims.[4]
[4] ‘DFAT Country Information Report Fiji’, 27 September 2017 , CISEDB50AD5787.The Tribunal considers that the information in the most recent DFAT report is generally consistent with the country information cited in the delegate’s decision filed with the Tribunal.
Indigenous Fijians (iTaukei)
…
Indigenous Fijians constitute nearly 60 per cent of Fiji’s population. Despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government. They are under-represented in business, professional services and the transport sector.
In part to protect the Fijian culture and way of life, early British governors established a ‘native administration’, which entrenched the tribal / hierarchical relationships prevalent in parts of Fiji at the end of the 19th century. Though modified and renamed, much of this administrative system continues to exist today. It consists of an iTaukei Affairs Board (the ‘guardian’ of the Fijian administrative system and other aspects of Fijian custom); an iTaukei Lands Commission (which registers the names of each member of a mataqali, or tribe); the iTaukei Land Trust Board (which manages native land leases); provincial (yasana) councils; and district (tikina) councils. Other elements of the ‘native administration’, such as the Great Council of Chiefs (Bose Levu Vakaturaga) which was once able to appoint Senators, have been disbanded by the interim government in the name of removing indigenous privilege as part of its attempts to de-racialise Fijian politics.
The continued existence of the indigenous Fijian administration (provincial councils and the iTaukei affairs ministry) is a minor form of positive discrimination towards indigenous Fijians. The overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis.
…
In remote rural and outlying island areas, indigenous Fijians are generally an overwhelming majority of the population and are unlikely to be the victims of societal discrimination.
…
Overall DFAT assesses there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians.
Religion
The 2013 Constitution establishes Fiji as a secular state and guarantees freedom of religion. The Constitution provides specifically for protection from religious discrimination. Freedom of religious belief is widely respected in practice in Fiji. Fiji’s government states its commitment to addressing discrimination and promoting a vision of equal rights and equal treatment for all Fijians regardless of race, including freedom of religion and belief. Designated public holidays include Christian, Hindu and Muslim holy days. In October 2015, retired Major General Jioji Konrote, a Seventh-day Adventist, was elected as the country's first non-Methodist President.
The idea of defining Fiji as a Christian state (even if only symbolically) retains some currency – this has been promoted by some groups who wish to restore indigenous prerogatives such as a more prominent role for Fiji’s chiefs. The current government abolished those prerogatives as inconsistent with democracy and equal treatment of all Fijians. The government rejected proposals for a recognition of Fiji as a Christian country during the 2013 consultations in the lead-up to the drafting of Fiji’s new constitution. Several (small) groups were charged with sedition after they sought to proclaim the existence of regional ‘independent Christian states’ to challenge government policy on indigenous issues.[5]
…
Political opinion (actual or imputed)
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.
The Political Parties (Registration, Conduct, Funding and Disclosures) (Amendment) Decree 2013 and Electoral Decree 2014 provide the legislative framework for the registration and conduct of political parties. Some of the administrative processes for establishing a political party are restrictive: for example, there are harsh penalties for non-compliance, parties must gather 5,000 signatures to register and candidates can be barred from elections for any election-related offences.
A range of decrees in place prior to the 2013 Constitution limits these rights in practice.
…
. The new Public Order Amendment Act 2017 removes the requirement for a permit for a meeting in a public place; a permit is still required for a meeting organised or convened in a public park or on a public road.
Credible sources reported an increase in self-censorship by members of civil society on political issues. 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 high-profile public figures, including the leaders of organisations, 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.
[5] DFAT Country Report – Fiji, 27 September 2017, paras 3.17 – 3.18
Opposition parties
A range of opposition political parties contested the 2014 elections. Most representatives of opposition political parties have told DFAT that police and military routinely monitored and followed them during the campaign. Some reported continuing monitoring in 2017, intensifying in the lead up to the 2018 election. Monitoring was in some cases relatively open and cordial (for example, a polite telephone call enquiring after the subject’s movements and plans), sometimes annoying (for example, a vehicle parked outside the home), and sometimes intimidating (for example, overt police presence at a political gathering).
Credible contacts allege that the government brought charges against opposition political party leaders, including former Prime Ministers Qarase and Chaudhry, in order to disqualify both from running in the 2014 election: according to the Constitution, individuals convicted of a crime with a maximum sentence exceeding 12 months are ineligible to run as candidates.
….
Since Fiji’s 2014 election, three Opposition MPs have been disqualified from Parliament for periods of at least two years [including two MPs from SODELPA]
….
On 10 September 2016, police detained opposition NFP Leader, Dr Biman Prasad; opposition SODELPA Leader, Sitiveni Rabuka; Fiji Islands Council of Trade Unions Leader, Attar Singh; former SODELPA politician and academic, Dr Tupeni Baba; Director of the NGO Pacific Dialogue, Jone Dakuvula; and Fiji Labor Party Leader, Mahendra Chaudhry. They were arrested ‘on suspicion of having breached the Public Order Act 1969 (as amended)’ for attending a public meeting that police had not permitted. Credible sources informed DFAT that all detained were taken to a police station in Suva, charged and subsequently released. Authorities dropped the charges on 17 October 2016, citing insufficient evidence and noting the arrests ‘appeared selective’.
Overall, DFAT assesses that senior members of opposition political parties (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 and monitored, especially in the lead-up to elections.

In the national elections in November 2018 FijiFirst, the party of the incumbent Prime Minister, Frank Bainimarama, secured a narrow victory but his political opponents indicated they may challenge the result due to concerns over the counting process. Official results showed that the FijiFirst party won 50.02 per cent of the vote and the SODELPA party secured 39.85 per cent of the votes to become the largest opposition party.[6]
[6] "Fiji election: PM Frank Bainimarama's FijiFirst party narrowly wins election", Australian Broadcasting Corporation (ABC) (News), 18 November 2018, CXBB8A1DA38775
The 2017 DFAT report also provides the following information about the Fiji Democracy and Freedom Movement (FDFM) or Pacific Indigenous Samaritan Association (PISAI)
The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody.
In August 2015, several media outlets reported around 40 indigenous ‘rebels’ had been arrested for conducting ‘military-style training’ in Ra province in the north of Fiji’s main island, Viti Levu. Police officers were deployed to the province in search of alleged firearms used, but none were reportedly found. On 16 August 2015, 16 people were reportedly arrested in Nadroga-Navosa province for causing communal antagonism and sedition for signing the ‘Provincial Institutions of Self Government’ of the Nadroga Navosa Christian State. During the week of 10-15 August, a further 37 individuals associated with the Ra Sovereign Christian State were arrested. The pro-government Fiji Sun was particularly vocal when reporting on the issue, often conflating the incidents and alleging links to the main opposition political party, SODELPA. Credible sources agree that the government sensationalised the situation for political gain.
Provincial councils in Ra, Ba and Nadroga-Navosa provinces and chiefs have distanced
themselves from the groups involved and pledged their allegiance to the Bainimarama government. The SODELPA opposition party officially denied any links to the groups involved.
At the time of writing, 16 individuals from Ra province remain on bail on sedition charges for allegedly attempting to form a separate Christian state in their province. They appeared in Lautoka High Court on 16 March 2017, pleaded not guilty to the charges and bail was extended. The trial began on 14 August.
A separate sedition trial involving 14 remaining individuals from Nadroga province, charged with two counts of sedition for their alleged involvement in attempting to establish a separate Christian state, will also take place at Lautoka High Court. …
Overall, DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.
ASSESSMENT OF CLAIMS AND EVIDENCE
The applicants have produced passports as proof of their identity and nationality. The Tribunal finds that the applicants are citizens of Fiji.
In determining whether the applicants are entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[7] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]
[7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2011 at para 196.
[8] MIMA v Rajalingam (1999) 93 FCR 220.
[9] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Based on the applicants’ evidence to the Tribunal, the Tribunal finds that:
(a) The applicants are citizens of Fiji. They are married. Their [adult] children all reside in Fiji. They own two properties in Fiji: the [City 1] property (currently occupied by their [child] and subject to a mortgage) and their village property.
(b) The applicants were working [in Australian Town 1] in 2016 when Oni Kirwin ‘started to promote things about this protection visa’. At this time the applicants joined the PiSAI, attended [meetings] presided over by Kirwin, and applied for a protection visa.
(c) The applicant’s written claims for protection (submitted to the Department) were dictated to them and are identical or substantially similar to the claims made in other protection visa applications before the Tribunal.
(d) The applicants have met with Ms Kirwin in person twice in [Australian Town 1] and more than ten times [elsewhere], during which period they made donations to PISAI.[10] The last time they attended a meeting with Kirwin was in 2017.
(e) The applicants no longer maintain, or wish to maintain any contact with Kirwin or any organisation with which she is associated.
(f) The applicants have not been involved in political demonstrations or published any material that is critical of the Government of Fiji, either in Fiji or Australia. The applicants have not published any material in support of Ms Kirwin or any organisation that she is associated with.
(g) The applicants support the main opposition party, SODELPA (The Social Democratic Liberal Party).
[10] Tribunal file, f. 129 (receipts).
Actual or imputed political opinion
At the hearing the Tribunal put to the applicants that, while the country information indicates that there can be risks facing political activists in Fiji, their evidence was that they were not politically active in Fiji and they were not currently politically active and, they no longer followed or associated with Oni Kirwin or any organisations with which she was associated. The applicants conceded they were not engaged in political activity in Australia but suggested that they had hoped that Ms Kirwin would provide a vehicle for them to express their political opinions. They told the Tribunal they didn’t agree with what happening in Fiji at the moment or the suppressing of freedom of speech or the disbandment of the GCC.
The Tribunal put to the applicants that, even if they had some sympathy for Kirwin’s views, it appeared that their dominant motivation in applying for protection visas was to remain in Australia to work and reduce the financial pressures they were facing in Fiji. [Ms A] said it was correct that one of their motives for coming to Australia was that they needed financial assistance. At the same time when they were in Fiji because of the political environment they didn’t have that ‘much boldness to express their opinion’; they believed joining Kirwin might be a way to voice their opinions and at the same time enable them to stay and help them financially with situation back home. However, as the Tribunal put to the applicants, they have not voiced their opinion publicly about the political situation in Fiji whilst in Australia. Furthermore, their evidence was they were not politically active in Fiji and had not engaged in any political activity since they ceased attended meetings of the PISAI in 2017.
On the evidence before it, the Tribunal finds that while the applicants may have had some sympathy for sentiments expressed by Kirwin, their dominant motivation in joining the PISAI and associating with Kirwin was to remain in Australia so they could continue to earn money and pay their mortgage in Fiji (as opposed to any genuine desire to advocate the political views espoused by Ms Kirwin, the Fiji Native Government in Exile and the PISAI, particularly their secessionist aims). In any event, the Tribunal finds, based on the applicants’ clear evidence to the Tribunal, that they no longer maintain, or wish to maintain, any connection with Kirwin or any organisation with which she is associated.
On the evidence before it, the Tribunal is not satisfied that either of the applicants have a political profile that would give rise to a real chance that they would face serious harm or significant harm in Fiji. The applicants have made broad statements that they are not free to express their views in Fiji. However, their evidence indicates that their political activity in Australia has been limited to a brief involvement with Kirwin and organisations she has founded. This involvement began in 2016 in the same month they applied for a protection visa and ended in 2017. When the Tribunal put to the applicants that their evidence did not indicate that they were politically active in Fiji or in Australia and the Tribunal might form the view that this situation would continue if they were to go back to Fiji, [Ms A] told the Tribunal that this was correct but they had disagreements with the government back home, particularly in relation to the rights of indigenous Fijians, which had been stripped back. [Ms A] said that they could go back to Fiji anytime but these were some of the disagreements that they had and when they were there they could not express this openly. [Mr B] also stated they agreed with the information the Tribunal had provided but they were concerned that things had happened to other people and they were concerned that they might happen to them.
In the Tribunal’s view those at risk of serious harm or significant harm in Fiji because of their political opinion have a very different profile to that of the applicants. The Tribunal acknowledges individuals or groups who organise and take actions to create a Christian separatist state within Fiji are at a moderate to high risk of harassment and arrest by authorities.[11] However, the Tribunal does not accept that the applicants have any intention to become actively involved in secessionist causes in Fiji. The applicants were not politically active in Fiji and, other than their brief association with Kirwin between 2016 and 2017, they have not had any involvement in with any individuals or groups that support the creation of Christian breakaway states in Fiji. Because the Tribunal does not accept that the applicants would be motivated to have any involvement in secessionist causes in Fiji, the Tribunal does not accept that they will attract the adverse attention of the authorities for this reason.
[11] Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787.
The Tribunal accepts that the applicants may believe that the rights of Indigenous Fijians are being eroded and disagree with the government’s decision to disband the Great Council of Chiefs (GCC) in 2012 (as the delegate’s decision notes the GCC was first suspended in 2007). However, the applicants’ own evidence is that they were not politically active in Fiji and that they are not currently engaged in any political activity in Australia. The Tribunal does not accept that the applicants would be motivated to engage in any political activity in Fiji that would give rise to a real chance that they would attract the adverse attention of the Fijian military or authorities.
As noted above, the applicants told the Tribunal that they were not politically active in Fiji. Elsewhere in the hearing the applicants indicated that they were members and supporters of SODELPA. The Tribunal accepts that the applicants identify as supporters of SODELPA and, although they have not produced any evidence to corroborate this claim, is prepared to accept that they may be members of SODELPA. As the Tribunal discussed with the applicants, while SOLDEPA was not victorious in the recent elections, SODELPA did attract a significant percentage of the vote (39 per cent).[12] The applicants expressed concerns about the irregularities the voting process in the recent 2018 election, which resulted in a narrow victory for the incumbent, Prime Minister Frank Bainimarama[13] and referred to the treatment of an Australian journalist who was told to go back to Australia when interviewing the Prime Minister. The Tribunal acknowledged that SODELPA had filed a petition with the Fiji Court of Disputed Returns following the election result. Furthermore, while there are risks facing senior members of opposition parties, the DFAT report, which the Tribunal considers reliable, does not suggest that there is a real chance that ordinary members or supporters of SODELPA are at risk of serious harm or significant harm in Fiji. Accordingly, the Tribunal is not satisfied that either applicant faces a real chance of serious or significant harm on the basis of their membership of, or support for, SODELPA on return to Fiji.
[12] Fiji election: PM Frank Bainimarama’s FijiFirst party narrowly wins election’, Australian Broadcasting Corporation (ABC) (News), 18 November 2018, CXBB8A1DA38775; "More women, bigger opposition in Fiji parliament", Radio New Zealand International, 19 November 2018, CXBB8A1DA38779
[13] Fiji election: PM Frank Bainimarama’s FijiFirst party narrowly wins election’, Australian Broadcasting Corporation (ABC) (News), 18 November 2018, CXBB8A1DA38775.
The Tribunal does not accept that there is a real chance that the applicants would be of any interest to the Fijian authorities because of their past association with Oni Kirwin, the PISAI or any organisation with which Kirwin has been associated. As the Tribunal put to the applicants, DFAT reports it is not aware of any interest in Fiji regarding persons associated with PISAI or other groups linked to Oni Kirwin. Relevantly, DFAT reports:
The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody.
The Tribunal acknowledges that in 2015 the Prime Minister Frank Bainimarama was reported in the media warning Fijians in Australia involved in supporting secessionists in Australia as being a potentially targeted upon their return to Fiji for encouraging sedition.[14] The Tribunal also accepts that Kirwin is banned from returning to Fiji. However, having considered the applicants’ evidence and the latest DFAT report, the Tribunal is not satisfied that the applicants’ past association with Kirwin (including the fact that in 2016 they became members of the PISAI and the Fiji Native Government in Exile) would give rise to a real chance that the applicants would face serious or significant harm on return to Fiji.
[14] CXBD6A0DE17506: "Fiji PM ‘distracts’ with overseas plotter threat", Special Broadcasting Service (SBS), 31 August 2015.
The Tribunal does not accept that the applicants have a well-founded fear of harm on the basis of their actual or imputed political opinion of being opposed to the Fijian government because of their past association with Oni Kirwin, the PISAI and the Fijian Native Government in Exile or for any other reason including their support/membership of SODELPA. While the Tribunal accepts that the applicants may hold views that are critical of the Fijian government, it does not accept that either applicant would be motivated to engage in public political activity or any other activity that would expose them to a real chance of serious harm or significant harm in Fiji. The Tribunal accepts that there continue to be some constraints on political freedoms in Fiji, however the Tribunal accepts DFAT's assessment that those at risk of harm because of their political opinion are high profile public figures who oppose the Fijian government, leaders of the opposition parties and organisations who oppose the government, those actively engaged in supporting secessionist causes, and those who might otherwise be seen to challenge the government's authority or undermine its legitimacy. The Tribunal finds that neither applicant has such a profile. Accordingly, the Tribunal finds that there is not a real chance that the applicants will face serious harm or significant on return to Fiji for any reasons related to their actual or imputed political opinion.
Indigenous Fijians
While the Tribunal accepts that the applicants are Indigenous Fijian, their evidence does not indicate that they have experienced serious harm or significant harm in Fiji for this reason. The applicants have given evidence that they have a history of employment in Fiji, they own property in Fiji, their [adult] children live in Fiji and do not have difficulty doing so. Furthermore, as the Tribunal put to the applicants, DFAT reports that Indigenous Fijians constitute nearly 60 per cent of Fiji’s population and discussed DFAT’s assessment of their socio-economic situation (as set out above).[15] DFAT reports that the overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. With respect to land rights and as discussed at the hearing, indigenous Fijians communally hold approximately 87 percent of all land. [16] Furthermore, as the Tribunal put to the applicants, DFAT assesses that there is no official discrimination against indigenous Fijians and a low level of societal discrimination against indigenous Fijians.[17]
[15] ‘DFAT Country Information Report Fiji’, 27 September 2017, p. 13-14, CISEDB50AD5787.
[16] DFAT Country Information Report Fiji’, DFAT, 27 September 2017, p. 13-14 (the government holds four per cent, and the remainder is freehold land, held by private individuals or companies)
[17] ‘DFAT Country Information Report Fiji’, 27 September 2017, p. 14.
The applicants stated that the information was right before expressing concern that this information was from government agencies in Fiji and that what was happening ‘on the ground level’ was different. However, as the Tribunal discussed with the applicants, DFAT’s report is based on a range of independent sources.[18] The Tribunal considers the DFAT report to be a reliable picture of the situation on the ground in Fiji. Further, while the Tribunal accepts that the applicants believe the rights of Indigenous Fijians are being eroded by the current government, the Tribunal notes that the applicants own two properties in Fiji and have a long history of employment. The Tribunal is of the view that their primary concern is paying off the mortgage on the [City 1] property so as not to impose a financial burden upon their adult children. Based on the applicants’ evidence about their circumstances and DFAT’s assessment of the situation of Indigenous Fijians the Tribunal is not satisfied that there is a real chance the applicants will suffer any serious harm or significant harm on return to Fiji for reasons of their race (Indigenous Fijian).
[18] DFAT Country Information Report Fiji’, DFAT, 27 September 2017, p.3 .
Medical conditions

The Tribunal accepts that the first named applicant has [a medical condition] and the comorbidities stated in the medical documentation and that she requires medical treatment for this condition. The Tribunal notes that [Ms A] said she had [an issue] and they couldn’t find the cause of it until she came [here]. The Tribunal also accepts that [Mr B] has had treatment for a [condition] and is now doing some light [work].
The applicants have provided the Tribunal with a large volume of documentation relating to their medical conditions and the treatment they have received in Australia. Both of the applicants are working in Australia. The medical documentation does not indicate that either applicant is unfit to do so because of illness. Furthermore, while the Tribunal has had regard to the medical evidence submitted in relation to [Mr B], this documentation does not indicate, with any specificity, what medical treatment [Mr B]requires that he would be unable to obtain in Fiji. While [Mr B] has said that his [condition] was not correctly identified in Fiji, he has now received treatment for this issue. Asked what treatment he currently requires, [Mr B] said he was asked to have a [test] and he hasn’t received any result and he told the Tribunal that their doctor (the Tribunal takes this as a reference to [Dr C] said if they were both in Fiji with their medical conditions he didn’t know if they could survive.
However, as the Tribunal put to the applicants, the evidence before the Tribunal didn’t indicate that they would be unable to get medical treatment in Fiji and, as discussed at the hearing, the country information indicates largely free and generally effective healthcare is generally available in Fiji. Specifically, the Fijian government provides generous public health services, including free primary and secondary health care: preventive care, generalist and specialist services, and hospitalization. X-ray and other support services are not generally subsidised.[19] There is a government Free Medicine Scheme for low income individuals. There are five main hospitals in Fiji, four of which are state-funded institutions, and one - Suva Private - a commercial facility.[20] Fiji has an estimated 2.1 hospital beds per 1000 population and spent about three per cent of GDP on health in 2014, figures which are comparable to regional averages.
[19] ‘DFAT Country Information Report Fiji’, 27 September 2017, , p. 6, CISEDB50AD5787; ‘Social Security Programs Throughout the World: Asia and the Pacific’, 2016, [United States] Social Security Administration, March 2017, p.80 CISEDB50AD5682; 'Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance', UNICEF, February 2015, p. 147, CISEC96CF15027
[20] ‘DFAT Country Information Report Fiji’, 27 September 2017, p. 6, CISEDB50AD5787; ‘How to Benefit from Government’s Free Medicines Programme: Akbar’, DEPTFO News, Fiji Sun, 16 February 2017, CXC90406614206
There is no evidence before the Tribunal that the applicants would be denied access to health care in Fiji. Nor have the applicants identified, with any specificity, what medication/ medical treatment they would be unable to obtain to Fiji. The applicants have not claimed and no evidence has been presented that indicates that either applicant is at risk of being denied medical treatment in Fiji for one of the reasons in refugee definition. Having considered the applicants’ evidence about their medical conditions, the Tribunal is not satisfied that there is a real chance either applicant would be persecuted in Fiji for reasons of their race, religion, nationality, membership of a particular social group or political opinion.
With respect to the complementary protection, the Tribunal is not satisfied that there is real risk that either applicant will be exposed to significant harm for reasons relating to their respective medical conditions. In any event, the Tribunal notes that any difficulties which might arise for the applicants due to the general standard of Fiji’s health system which might result in harm for the applicants are not matters of that would fall within the definition of significant harm as defined in s.36(2A) and s 5(1) of the Act for the purpose of the complementary protection criterion. This is because the harm envisaged is simply a product of resources allocated to the health system and not an act or omission intended to cause harm. Accordingly, any harm would not be torture or cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor would the harm fall within any other category of significant harm for the purposes of the Act.
Economic hardship
The Tribunal accepts that the applicants travelled to Australia in 2015 in the hope of alleviating financial pressure of making mortgage repayments in Fiji. The applicants have stated that they are working in Australia and continuing to make mortgage repayments on the [City 1] property. Based on the country information, the Tribunal accepts that the government introduced a compulsory retirement age of fifty-five for employees of public agencies but notes [Mr B] gave evidence that after he retired he established a [business]. As discussed with the applicants, the Tribunal considers that the compulsory retirement provisions are laws of general application that apply to the population generally, are not discriminatory in their terms or application and the laws are appropriate and adapted to achieving a legitimate object of Fiji, increasing youth employment. [21] In these circumstances, Tribunal does not accept that compulsory retirement amounts to persecution.
[21] ‘DFAT Country Information Report Fiji’, 27 September 20176. DFAT notes the official unemployment rate was approximately 6.2 per cent in 2015; however, youth unemployment (18-25 years) is 18.2 per cent.
In any event, before the applicants travelled to Australia in 2015 the applicants gave evidence [Mr B] had a [business]. While the Tribunal accepts that [Mr B] was concerned that his [business] was not generating sufficient income to continue to repay the mortgage and that the applicants did not want to burden their children with their debts, the evidence before the Tribunal does not indicate that the applicants were suffering economic hardship such that their capacity to subsist was threatened. Furthermore, while the Tribunal accepts that the applicants still have a mortgage on the [City 1] property and they may not be able to generate the same level of income in Fiji as they can in Australia, the Tribunal put to the applicants it did not appear that if they returned to Fiji they would suffer such significant economic hardship such that their capacity to subsist will be threatened. In response to the Tribunal’s concerns, the applicants did not assert that their capacity to subsist would be threatened but pointed to comparatively lower incomes in Fiji than in Australia and their desire not to impose a financial burden on their children. The Tribunal was told that one child had offered to pay the mortgage off but they found it was affecting him and his family so they didn’t allow him to do it, they allowed him to pay the bills, and decided to cover the mortgage themselves as the income in Fiji was just sufficient for their children’s families.
The Tribunal accepts that the applicants may be able to earn a comparatively higher income in Australia than in Fiji, that they perceive that the quality of medical treatment in Australia is better than that available in Fiji, and they would prefer to manage their finances without relying on their children. However, the Tribunal considers the applicants’ evidence indicates that they have a network of family support in Fiji as well as property assets. Notwithstanding their medical conditions, both applicants are currently able to work and generate income. Furthermore, even if the applicants found it difficult to find work in Fiji, the Tribunal is not satisfied that they would be unable subsist given their property ownership and the support of their adult children.
To the extent that the applicants have raised a claim to owed protection on the basis that they would face economic hardship in Fiji, the Tribunal is not satisfied that any economic hardship that they might encounter in Fiji would amount to serious harm (having regard to the examples of 'serious harm' set out in s5J (5) of the Act) or significant harm (having regard to the definitions in s.36(2A) and s.5(1) of the Act).
Conclusions
Refugee criteria
The Tribunal is not satisfied that either applicant faced any harm or adverse interest in Fiji, nor is it satisfied that there has there been any adverse interest in either applicant while they have been in Australia, or that the Fijian authorities or military will have any interest in the applicants if they return to Fiji. Looking forward, the Tribunal does not accept that there is a real chance that they will face serious harm for their actual or imputed political opinion and/or their indigenous Fijian race if they return to Fiji now or in the reasonably foreseeable future. The applicants have not claimed that they will be denied medical treatment for any of the reasons set out in s 5.J and the Tribunal is not satisfied that either applicant will be denied access to medical treatment or otherwise subject to serious harm for one of the reasons in the refugee definition. The Tribunal is not satisfied that any difficulties the applicants might encounter in Fiji in relation to their medical conditions would amount to serious harm (having regard to the non-exhaustive examples of 'serious harm' set out in s5J (5) of the Act) or significant harm as defined in s.36(2A) and s.5(1) of the Act.
Having regard to its findings of fact about the applicants’ circumstances including their political opinions and associations, family networks in Fiji, medical conditions, property ownership, race and history of employment, the Tribunal is not satisfied that either applicant will be denied the ability to earn a livelihood or that they will suffer such significant economic hardship on return to Fiji such that their capacity to subsist will be threatened. Accordingly, the Tribunal rejects any implied claim that the applicants would experience severe economic hardship that threatens their capacity to subsist or be denied the capacity to earn a livelihood, where the denial threatens their capacity to subsist. Nor does the Tribunal accept that the applicants will be denied access to basic services, where the denial threatens their capacity to subsist. In sum, having regard to what it has accepted of the applicants’ claims and circumstances, the Tribunal is not satisfied that there is a real chance that they will be subject to any form of serious harm for any of the reasons claimed.
Having considered the claims made by the applicants singularly and cumulatively, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution as defined in s.5J if they return to Fiji now or in the reasonably foreseeable future. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criteria in s.36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[22] ‘Significant harm’ is exhaustively defined in s.36(2A) and s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of life, the death penalty will be carried out, or the person will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. ‘Torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ require intentionally inflicted severe mental or physical pain and suffering or extreme humiliation.
[22] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Having regard to its findings of fact, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicants will face significant harm for reasons related to their past association with PISAI or Oni Kirwin and/or their membership and support of SODELPA and/or their actual or perceived political opinion. The Tribunal does not accept that there is a real risk that they will face significant harm for reasons relating to their indigenous race or as a consequence of their respective medical conditions or any economic hardship that they may experience if they return to Fiji or for a combination of these reasons. On the evidence before it, the Tribunal is not satisfied that there is any basis upon which to conclude that the applicants are owed complementary protection.
The Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Frances Simmons
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
[Ms A],
[Mr B], who
Namaka [City 1
[Australian Town 1].
[Dr C],

[2018] AATA 5642

20 December 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction