1617982 (Refugee)

1617982 (Refugee) [2021] AATA 1016 (25 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617982
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Louise Nicholls
DATE:25 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made at 10.26am 25 March 2021

CATCHWORDS
REFUGEE – protection visa – Fiji – seasonal worker program – claimed exploitation from registered employer – mislead Fijian authorities by not claiming occupation as teacher – fear of reprisal – fines – detention and torture – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is [an age]-year-old male who claims to be a citizen of Fiji. [In] October 2015 he arrived in Australia travelling on a Fijian passport with an Australian TE416 (Special Program) visa.
The applicant applied for a protection visa on 19 April 2016.
On 27 September 2016 a delegate of the Minister for Immigration refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa.
The applicant attended an interview at the Department of Immigration on 6 September 2016. The Tribunal has listened to the recording.
This is an application for review of that decision, and it was made on 28 October 2016.
The applicant appeared before the Tribunal on 22 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant gave evidence about his background, migration history and his claims for protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Material before the Tribunal
The applicant provided a number of documents, including a copy of his Fijian passport, a copy of the delegate’s decision record[1] and a statutory declaration made on 29 March 2019.
[1] Departmental file [deleted]
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachment A.
Background
The applicant is an ethnic Fijian and is [age]. At the time he made his application he stated that he was married with two children, all of whom were living in Fiji. In his statutory declaration provided in March 2019 he stated he was currently working for [a company], doing some [trade work].
He stated his wife had left him and was living with another man. He stated he had his children removed and wanted to take them to his grandparents, but his children are now staying with his wife’s parents. He currently sends money to them in Fiji.
He stated he had a partner in Sydney, and at the time the statutory declaration was made they had been involved for nearly two months.
At the Tribunal hearing he stated that he had been brought up by his grandparents from the age of [number] months. His mother is a single mother and is living with other family members. He and his mother are not close and do not have much contact. He is very close to his grandparents and speaks regularly to them.
He lived in a rural village with his grandparents, that is, [named village]. It is located on the second largest island in Fiji. His grandparents were previously kava farmers and the applicant assisted them from time to time in kava farming.
He attended primary school in the village and in 1995 he and his grandparents went to live in his grandmother’s village so that he could attend high school. He completed high school and after high school he obtained [trade] qualifications. His grandparents returned to the [village].
He was working towards completing a diploma of education but has only completed half of that course. There was a shortage of rural teachers, so he obtained employment as a [trade] teacher with the Department of Education. He worked in a rural community [from] 2010 to 2015 and was earning about [amount] Fijian dollars a fortnight in 2015.
He is married and he and his wife have two children, however he and his wife are now separated. His wife left him and has moved in with someone else, and his children are now living with their maternal grandparents. He sends money for them and speaks to them on a regular basis.
The applicant also has an older child in Fiji, and she is living with his grandparents in their home village. His daughter is in [grade]and he has supported his daughter since she was very young. He explained that he had a child with a classmate while he was undertaking tertiary studies but after three months, she met someone else.
He is living in Sydney and working in [a particular] industry. He has been in a relationship with his Australian citizen partner for about 18 months.
Country of reference
The applicant claims he was born in [Fiji] and is a citizen of Fiji. He provided a copy of his passport which was issued [in]2008. He has consistently claimed that he is of Fijian nationality and appeared familiar with the geography and culture of the Fijian Islands.
Taking into account the available evidence, and noting there is no issue as to identity or nationality, the Tribunal is satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s.36(2)(aa) of the Act.
What are the applicant’s claims?
The applicant’s claims are set out in his application for protection lodged on 19 April 2016.
The applicant discussed his claims for protection with the delegate at an interview on 6 September 2016. The claims for protection were further developed in a statutory declaration made on 29 March 2019.
The applicant gave oral evidence concerning his claims at the Tribunal hearing held on 22 October 2020.
Essentially the applicant claims if he returns to Fiji, he faces serious harm from state authorities and local community members. He claims he was accepted into a seasonal worker program (SWP) in Australia and came to Australia to complete agricultural work with a contract labour business, [Company 1]. He stated he left his employment before the end of his contract because he felt that the employer was exploiting him in terms of pay and conditions.
He claimed that the seasonal worker program has only been extended to Fiji in the last few years and the Fijian government emphasised to all participants that the program is important to Fiji. He claimed that if a person did not fulfil the program’s requirements, the program will be shut to other residents of the home area.
The applicant believes that if he returns to Fiji he will be imprisoned, made to pay large financial penalties, be mistreated by government authorities and possibly be physically harmed by members of his local village community.
Assessment of claims and evidence
Was the applicant accepted into the seasonal worker program and given a seasonal worker’s visa?
The applicant claimed and the Tribunal accepts that the applicant obtained a Class TE (Subclass 416) (Special Program) visa on 2 October 2015. This evidence is supported by Departmental visa grant records.
The Tribunal accepts that the applicant arrived in Australia [in] October 2015 as the holder of a Subclass 416 visa. The visa ceased on 20 April 2016.
Did the applicant leave the program before the end of his contract?
The applicant claimed that he had broken the terms of his contract under the SWP by walking off the job and leaving his sponsoring employer. He felt his employer was exploiting him due to a large mismatch between the amount of money the employer estimated he would make in Australia and actual financial terms.
At the delegate’s interview the applicant stated that he came to work in Australia under the seasonal worker program for a company called [Company 1]. He joined the program in Fiji where he had entered into a contract with a person involved in the company called [name deleted]. He had signed a contract for seasonal work from October 2015 to April 2016.
When he arrived in Australia he first went to [Location 1], Queensland where he worked from October to December 2015 and then to [Location 2] from January to February 2016. He told the delegate he left his employment in February 2016 because of the poor pay and conditions.
He explained that the promises made in Fiji were not correct. He was told by a representative of the program that once he came to Australia, he would make 30,000 to 40,000 Fijian dollars as he would be paid the hourly rate of $21.60AU an hour. Once he arrived, he was told he would earn a piece rate dependent on the amount of produce picked rather than an hourly rate. He stated he had signed an employment contract in Fiji when he attended the National Employment Centre and was given the impression he would be paid at an hourly rate.
He explained that he had to repay monies for his flights. He also had deductions for meals, accommodation and transport so the nett amount he earned was often negative. Overall, he earned about $1000AU for four months’ work.
The applicant knew it was a condition of the visa that he had to remain employed. He was dissatisfied from the start and was unhappy with the conditions. He could not discuss his concerns with his employer. He did raise concerns about his pay with his supervisor after one month and his supervisor threatened he would be sent back to Fiji.
In his statutory declaration he claimed he was a rural teacher in Fiji and not eligible to join the SWP. He did so anyway even without the permission of the education ministry. He thinks he will face a tribunal for leaving his teaching work without permission if he returns to Fiji.
At the Tribunal hearing, the applicant stated he was not supposed to be a seasonal worker, but he wanted to join the program so that he could earn money for his family and his grandparents.
The income he made as a teacher was not good enough to support his children, himself and his grandparents so he wanted to join the SWP. He went to the National Employment Centre in Suva and asked for information and they told him he could not be accepted in the program because he was working as a teacher. When he completed his form, he did not tell anyone what he was doing so that he could be part of the program and did not state he was a teacher. He made the application to join the program for financial reasons. He sent the application to the Employment Centre and later he found out he was approved for seasonal work.
After he was approved, he returned to Suva for fitness training and medical checks. He was told he would be farming and the representatives told him that he could earn 30,000 Fijian dollars over the six months. He received and signed a contract of employment for six months. He thinks he has a copy of his contract of employment at home in Fiji.
He waited for a few months and they called him and told him the next afternoon he would leave Fiji. He flew from Suva to the Gold Coast and he and nine other workers went to [Location 1], Queensland on a minibus. He lived in one room in a converted container and he bought and cooked his own food.
At [Location 1] he started [produce] picking and worked from Monday to Friday. There was provision for weekend work, but he explained that the work was physically difficult, and he did not work on weekends. The money he got from [Company 1] was paid into [a] bank account. After deductions for accommodation, weekend food and transport to the farms there was not much money left. In two months, he made about $1000 after deductions.
After [Location 1] he went to [Location 3] and [Location 4] where he was employed to pick [produce], again on a piece work rate. He and his work colleagues lived in one big house with separate rooms. After two months in [Location 3] he made about $1000 after deductions.
After two months in the [Location 3] area he decided to leave the SWP. He stated that the work was hard physical work, he was getting up early and finishing late. He did not tell anyone he was leaving the company. After he left he got a text message from the leading hand who told him that the Fiji government will find out that he has abandoned the seasonal worker program.
While he was employed the applicant did not make a complaint to Fair Work about his working conditions or pay; he stated he did not know much about the system in Australia and was told if he complained to Fair Work he would be sent home and would not be able to bring his family to visit. He and others in the SWP did talk to each other about how they were unhappy with the conditions under which they were working.
He made the decision to leave his employment in February 2016 and he and a friend went to [Location 4], NSW because they found some work there. They started picking [produce] in [Location 4] and then he was employed in a [farm] for about 18 months before he came to Sydney.
The Tribunal has considered the country information on the operation of the SWP. The information indicates that Fiji joined Australia’s SWP in April 2015, when Australia’s Parliamentary Secretary signed a Memorandum of Understanding in Suva with Fiji’s Minister for Employment, Productivity and Industrial Relations.[2] Sanctions imposed by the Australian government in the wake of Fiji’s 2006 coup had previously seen Fiji excluded from the SWP.[3]
[2] 'Fiji joins the Seasonal Worker Program', Australia: Minister for Foreign Affairs, 2 April 2015, CXBD6A0DE18514
[3] ‘Fiji to send seasonal workers to New Zealand’, The Economist Intelligence Unit, 30 January 2015, 20201007171504
Only organisations approved by the Australian government are permitted to recruit workers under the program. These organisations are referred to as ‘Approved Employers’ and may recruit and place workers with their own business or recruit workers to place with another business in a labour hire arrangement.[4]
[4] ‘Seasonal Worker Programme - Approved Employers’, Australian Government Department of Education, Skills and Employment, 4 March 2020
With respect to the commencement of the scheme:
[Details deleted].[5]
[5] [Deleted]
A September 2015 press release from the Fiji Ministry of Employment reported that a further 90 seasonal workers were due to depart for Australia by the end of the month:
[Details deleted].[6]
[6] [Deleted].
Concerns were raised in 2016 about working conditions for some workers in the SWP. In April 2016, Fiji’s Employment Minister stated in parliament that two Australian companies were under investigation by the Fair Work Ombudsman, Fijians employed under the SWP having claimed underpayment and unfair working conditions.[7]
[7] ‘FIJI SEASONAL WORKERS COMPLAIN OF BAD TREATMENT IN AUSTRALIA’, RADIO NEW ZEALAND, 28 APRIL 2016
A June 2018 Special Broadcasting Service (SBS) report noted that income from remittances by overseas workers can be a significant income source for Pacific economies. The SWP ‘was founded as a soft aid program for Pacific nations’, but questions had been raised about exploitation and about the health and safety of workers, according to the SBS report:
Those on the scheme have to work with government-approved private employers who are supposed to abide by all Australian labour laws and pay appropriate wages and superannuation.
…
The Department of Jobs and Small Business told SBS News "no seasonal worker participants have died as a result of a workplace incident".
But the Queensland coroner is investigating two… deaths amid allegations that squalid living conditions, mistreatment, insufficient food or a failure to provide medical assistance were contributing factors.
…
Unions told a 2016 senate inquiry that “exploitation of workers participating in the seasonal worker programme is common”. The inquiry heard complaints about substandard accommodation, which is usually provided by the employer as part of the work contract, as well as long hours and excessive deductions for food and board.
But because of the necessity of their employer signing off paperwork for their visas, the inquiry heard workers were “generally disinclined to complain about improper treatment for fear it will adversely impact on their potential earnings.”[8]
[8] 'Who are Australia's seasonal workers?', Kelsey Munro, Special Broadcasting Service (SBS), 18 June 2018
SBS reported comment from the Australian government that the majority of approved employers were responsible and ethical, but that five employers had been suspended in 2016–17 and one had been expelled from the SWP for ‘serious non-compliance’.[9]
[9] 'Who are Australia's seasonal workers?', Kelsey Munro, Special Broadcasting Service (SBS), 18 June 2018
However, an Australian government Department of Education, Skills and Employment document last updated in March 2020 listed ‘[Company 1] Pty Ltd’ as an Approved Employer participating in the seasonal worker program.[10]
[10] [Deleted]
Reporting from the New Zealand Institute for Pacific Research has noted ‘concerns around the inappropriateness of the first cohort of workers – most of whom came from urban areas and did not have the right skills for work in the rural horticulture sector’. Poor work experiences led to reduced remittances and restrictions on future international work opportunities.[11]
[11] ‘Are There Only Winners? Labour Mobility for Sustainable Development in the Pacific’, Yvonne Underhill-Sem, Evelyn Marsters, Richard Bedford, Vijay Naidu and Ward Friesen, New Zealand Institute for Pacific Research, n.d., accessed 8 October 2020, pp.38-39
Taking into account the evidence of the applicant, which was consistent with relevant country information, the Tribunal accepts that the applicant was employed to work for [Company 1] in Australia under the SWP. The Tribunal accepts after he arrived in Australia, he worked in [Location 1] for two months and then in the [Location 3] area[12] for another two months. It accepts his evidence that the work was extremely demanding, and the level of remuneration was not consistent with the advice he had been given in Fiji, although he did not provide any financial documents which might have corroborated this claim. It also considers that the applicant was not used to the physical demands of the agricultural [produce] picking work he was given in Australia, having been employed as a teacher before he came to Australia on the SWP. He gave evidence of the demanding nature of the work and his reluctance to do weekend work for that reason. Country information indicates that mismatched skills for agriculture was a problem in the SWP in the early stages.
[12] [Deleted].
The Tribunal accepts that the applicant left the SWP in about February 2016, two months before the end of his six-month contract. It accepts that he left his employer, [Company 1] without giving notice and that he and a friend found other work in [Location 4] after he left.
What are the consequences for persons, such as the applicant, who abandoned the seasonal worker program before completion?
In his application form the applicant stated he is afraid if he returns to Fiji that he will be punished by the Fijian government, including being imprisoned and facing severe financial penalty for leaving the program two months before the end of his contract. The applicant also claimed he feared he will face serious harm from people in his home area and that the government authorities will not protect him from this harm.
He stated that at the time of the application for protection, the SWP had only recently been extended to Fiji and the Fijian government stressed to participants that they were representing Fiji and the program is very important to Fiji.

As well, a representative of the sponsoring company stressed to the applicant and other participants that they would owe 10,000 Fijian dollars and face imprisonment, if they abandoned the program.
The applicant also believes that he will be harmed by residents in his home area in Fiji, who are hoping to participate in future assignments under the program. Current participants in the program have been warned that if they do not fulfil the program’s requirements, the program will be shut to other residents of their home areas.
As these residents believe the program to be of potentially great financial benefit to them, the applicant considers they will be hostile towards participants who break the program’s terms and endanger their own potential to participate. The applicant believes that authorities will not protect him from harm caused by hostile residents of his home area, as the government will be annoyed with him for breaching the seasonal worker program.
The applicant stated it is impracticable and useless to relocate to avoid harm.
In his statutory declaration the applicant stated that he was a teacher in Fiji and as a teacher in a rural area he was not permitted to join the seasonal worker program. However, he signed up to the program without the government’s knowledge.
He also referred to claims that persons were subject to mistreatment if they did not obey government directions or rules. He claimed he would face three years in gaol and a large financial penalty. He also fears harm because he suddenly left his job as a schoolteacher working in government. He thinks he will be facing a tribunal if he returns.
The applicant stated he was concerned about the prospect of mistreatment if he returned to Fiji. He stated he feared government authorities would harm him and that when he returned to Fiji his name would be on a list at the airport.
He referred to the Fijian government’s restrictions on social media, however, the Tribunal notes that the applicant has not made any claims about social media. It considers that this was included in his statutory declaration to give some context. He did state that when talking on the telephone to his father (grandfather) he was told to be careful, otherwise his father would suffer.
At the delegate’s interview the applicant stated that he was told by the manager of [Company 1] that if he did not complete the six months’ contracted work the Fijian government would fine him 10,000 dollars. The applicant also knew it was a condition of the visa he had to remain employed in the SWP.
He was asked if he spoke to anyone from the Department of Immigration or the Fijian government. He had not, but stated that he had been told in [Location 1] if he did not complete the six months he would be fined 10,000 dollars in Fiji, would not be able to return to Australia and if he did not pay the fine he would be imprisoned for three years. He heard this twice in [Location 1] and once in [Location 2].
He claimed that an assistant government secretary from Fiji confirmed this at one of their meetings and therefore he believed the threat. He is aware that others left the program and went back to Fiji, but he was not aware of what happened to them. The applicant claimed that, based on what he had been told, if he returned to Fiji he would be imprisoned if he did not pay a fine of 10,000 dollars.
The delegate put it to the applicant that the media in Fiji and Australia have reported on exploitation in the seasonal worker program so members of the Fijian community would be aware of the problems. He stated that people do not know what they are facing. The delegate put it to him that there was no information suggesting that persons abandoning the program have faced fines or imprisonment. He stated Fiji is different now and people go to prison and are tortured if they go against the law.
The applicant stated that he could not return to Fiji after he left the program in February 2016 because he promised to earn money and take money home for his family.
He also claimed he feared returning home to Fiji because he was representing his village and province in the seasonal worker program. If participants broke the conditions of their contract the whole village and province would be stopped from coming to Australia to join the SWP. He claimed he was facing a threat from persons in his village who were waiting for him to return.
It was put to the applicant by the delegate that he would have contacted his family and told them about his exploitation. If this had been conveyed to other villagers, it would be in their interests not to join the program. He told the delegate that going abroad is something quite special to enable people to make money.
He stated that he was afraid of torture and imprisonment due to his non-participation in the SWP. He was also concerned because people from his village are no longer able to participate in the program and they will be angry with him.
The delegate questioned whether he genuinely believed abandoning the program was a crime for which he would be imprisoned. He stated he thought it was against the rule of the government.
The applicant’s representative submitted that this was an arbitrary threat made by the manager of [Company 1] in the presence of a member of the government. In those circumstances it was understandable that the applicant would believe that abandonment of the program constituted a criminal offence.
At the Tribunal hearing the applicant stated that he decided not to return because once he left the SWP he was concerned about the consequences. When asked why he thought he would be fined or imprisoned he stated that he had been told this in Fiji before he left. He stated it was reported at a press conference.
The Tribunal discussed country information which indicated that the Fijian government wanted to encourage the scheme to assist people but noted there was nothing in the material which suggested people would be punished or have to pay a fine for leaving the scheme early.
The Tribunal put it to him that someone might have made these comments to make sure that participants did not leave the program but there was no evidence that any person leaving the program has been punished or fined in Fiji or that his employment contract contained such a provision. He stated that the leading hand at the company repeated this threat a few times and he heard this from a few others.
He claimed if he returned to Fiji he would be fined or imprisoned because he and his fellow workers were the first ones to break that contract. The Tribunal put it to him that there is country information about complaints made by seasonal workers but there is no evidence of anyone who has returned being harmed. He stated no one has returned to Fiji from his group. The Tribunal put it to him some people who successfully finished the program have returned[13] and some who did not have also returned.[14] He stated that about five of his fellow workers have kept in contact with each other and have not gone back. He claimed a lot more people have not gone back.
[13] Matuku Man Returns From Australia $26,000 Richer’, Arieta Vakasukawaqa, Fiji Sun, 8 April 2017
[14] ‘Ministry to review selection process for seasonal workers’, Fiji Village, 21 December 2015
The Tribunal put it to him that there is some country information which indicates that where participants have left the program, other people from their villages have not been allowed to join the program. Commentators have observed that this is unfair on other members of those communities.
With respect to his claim he will face hostility in his village, the Tribunal put it to him that his grandparents have gone back to their village and have come to no harm and had not been threatened. The applicant stated he really wanted to go back because he misses his grandparents and they are very close.
He reiterated he fears he will be fined by the government. The Tribunal put it to him that there was no evidence of any law or regulation which gave the government the power to fine him. He stated it was written in the agreement. However, it was put to him that he has not been able to provide a copy of that agreement. The Tribunal pointed out he had applied for protection four years ago and has not provided any documents which show that he would be punished if he left the seasonal worker program and there was no country information indicating there had been mistreatment of returnees who had not completed their contracts.
With respect to his claim that he feared harm because he left his teaching job, the Tribunal put it to him that there was no reason why the government of Fiji would take action against him for leaving his job after five years’ absence from Fiji. He stated that the government does not respect the rights of individuals and the government will punish individuals if they have gone against the government.
He said some people have been mistreated if they criticise the government. The Tribunal put it to him that it was difficult to see how leaving his job as a teacher would be treated as a criticism of the government.
With respect to threats made to SWP workers the Tribunal notes that in December 2015, Australian rural newspaper [reported] that a number of workers from Fiji who had complained about mistreatment and underpayment claimed that ‘their employer and Fijian Government officials threatened them with two to three years’ jail in Fiji when they walked off the job’. As reported:
[Details deleted].[15]
[15] [DELETED].
[Another media outlet] also reported on the case in December 2015, citing comment from a Fijian community leader in [Melbourne].
In an interview, Fiji’s Labour Minister Semi Koroilavesau said that a senior official had been sent to Australia and had ‘inspected and interviewed all the workers’ and reported that ‘everything was normal’. Koroilavesau stated that the workers had nothing to fear, further commenting as follows:
KOROILAVESAU: It's quite amazing when people try to make their own statements to suit the purpose of what they intend to do. We have one of the workers that has come back. We have done an arrival brief and we will brief him next week and it's up to him what he wants. I understand from my executives that he wants to go back to Vanua Levu where he was recruited from. So those allegations should be thrown back at them and ask what is the real purpose on why they didn't board the plane to come back. I think they may be trying to get the status of a political refugee.[16]
[16] [DELETED]
Fiji Village reported that:
Minister Semi Koroilavesau says one of the participants has returned to Fiji and is currently being debriefed.
He says the five remaining participants are supposed to return to Fiji and the government are now working on ensuring that this is done.[17]
[17] 'Ministry to review selection process for seasonal workers', Fiji Village, 21 December 2015
After complaints by some SWP participants in late 2015 and early 2016 about working conditions and pay, and the abandonment of work placements by a number of participants, Fiji’s Employment Minister travelled to Australia in April 2016, both to head a delegation to negotiate an increased number of workers for the program and to investigate claims of exploitation.[18] As reported on 14 April 2016 by Radio New Zealand:
[18] ‘Fiji wants expansion in Aust seasonal programme’, Radio New Zealand, 18 April 2016, 'Employment minister in Australia to discuss expansion of seasonal worker scheme', Newswire, 19 April 2016
Fiji's Employment Minister Semi Koroilavesau will head a delegation to Australia next week to negotiate more workers for the seasonal workers program.
FBC News reports while there, the minister will look into claims of exploitation with some workers claiming they were paid less than 8 US dollars a week.
Mr Koroilavesau says the delegation will visit farms and the workers and also have discussions with the government.
He says the emphasis will be on securing more work for people from rural and isolated parts of Fiji.[19]
Minister Koroilavesau later concluded that the complaints by workers were ‘basically fabricated’, according to a Radio New Zealand report of 26 April 2016:
Fiji's Employment Minister says allegations of underpayment and unfair working conditions in Australia's Seasonal Worker Programme are lies.
Semi Koroilavesau traveled [sic] to Australia to investigate claims of exploitation and also request an expansion of the programme to allow greater numbers.
Mr Koroilavesau says the claims made by 13 Fijians were basically fabricated, and there has been a lot of misinformation included in TV coverage of the situation.
He told FBC news that there's a lot of influence and interference around the workers from Fijians living in Melbourne.[20]
[19] ‘Fiji delegation looking at seasonal worker programme concerns’, Radio New Zealand, 14 April 2016
[20] ‘Fiji govt says worker exploitation claims are lies’, Radio New Zealand, 26 April 2016
In August 2016, the Fiji government news centre reported comments from Koroilavesau about ‘a need to review the seasonal work recruitment and selection criteria’, and his personal involvement in community consultations at a village level:
Government needs dedicated seasonal workers with a clear focus under the seasonal work scheme and programme for both Australia and New Zealand.
This was highlighted by Minister for Employment, Productivity and Industrial Relations Hon. Semi Koroilavesau this week during consultation talks in the Northern Division.
“Due to the complaints received under the Australian Seasonal Worker Programme and the follow up ministerial visit by the Ministry earlier this year, it has proven that there is a need to review the seasonal work recruitment and selection criteria,” Minister Koroilavesau said.

…
Minister Koroilavesau added that one of the major challenges witnessed in the initial open recruitment and selection criteria is the selection of workers that did not have any skills and experiences in agricultural farming work.

…
“Dedicated workers with a clear focus are the ones who will open up doors for more employment opportunities and also ensures the best retention rate of Fijian seasonal workers,” Minister Koroilavesau said.[21]
[21] ‘Government Needs Dedicated Seasonal Workers With A Clear Focus Says Koroilavesau’, Government of Fiji, 11 August 2016
The Tribunal considers that the applicant is a generally truthful witness and that, while ill informed, it considers at the time he abandoned his work in 2016 he was genuinely concerned that if he returned to Fiji he would be fined for breaking the conditions of his contract and that if he was unable to pay the fine that he would be imprisoned. However, as put to the applicant at the hearing there is no country information which indicates that persons returning to Fiji who have not completed the six months of contract work have been fined, imprisoned or mistreated in any other way in the last five years.
The Tribunal also notes that the applicant left the program in February 2016 some two months after it was reported that six persons had left the SWP in [Location 2] in December 2015. Despite apparently not being a part of the group referred to in the media reports, the Tribunal accepts that the applicant may have received the same information as those persons and may have formed the view that he would be punished if he returned at that time.
The Tribunal does not accept that villagers in the applicant’s home village will harm him if he returns to the village where his grandparents live. The applicant made this claim in his written statement, statutory declaration and his interview with the delegate but he did not raise the issue at the Tribunal hearing. However, the Tribunal raised and discussed the claim and the relevant country information with the applicant at the hearing. It noted there was some country information which indicated that villages had been banned from participation in the SWP if a villager had been involved in transgressions of the program.
A report on labour mobility published by the New Zealand Institute for Pacific Research noted seasonal workers from Fiji who had ‘poor work experiences’ in Australia were sent home with reduced remittances and individuals had been ‘banned from future international work opportunities’. Adverse consequences flowed from Fiji enacting ‘a strict policy that banned recruitment from villages where workers had transgressed rules while they were on seasonal contracts’.[22]
[22] ‘Are There Only Winners? Labour Mobility for Sustainable Development in the Pacific’, Yvonne Underhill-Sem, Evelyn Marsters, Richard Bedford, Vijay Naidu and Ward Friesen, New Zealand Institute for Pacific Research, n.d., accessed 8 October 2020, pp.38-39
Radio New Zealand reported in June 2017 that more than two dozen Fijian villages had been suspended from taking part in seasonal worker programs after complaints from employers in New Zealand. As reported:
The Employment Minister Jone Usamate said the offending workers' village or settlement would not be allowed to take part in either the New Zealand Recognised Seasonal Employer scheme or its Australian equivalent, the Australia Seasonal Worker Programme.
The government said it had earlier emphasised suspension was possible if workers damaged Fiji's reputation while working on the schemes…[23]
[23] 'Fiji Govt Bans Villages From Seasonal Work In New Zealand', Radio New Zealand, 7 June 2017
In response, the opposition National Federation Party in Fiji described banning whole villages from seasonal employment schemes as ruthless and unfair, and suggested that the selection process conducted by the National Employment Centre was at fault, not the villages.[24]
[24] ‘Fiji Village Seasonal Work Ban Labeled 'Ruthless'’, Radio New Zealand, 9 June 2017
The country information does not identify the nature of the transgressions which have given rise to bans on seasonal work opportunities or whether such a ban had actually been applied to the applicant’s home village. Furthermore, there is no other clear evidence that such a ban has been applied. However, despite the absence of any evidence to support the applicant’s claims that his village has been banned, the Tribunal accepts that it is possible that banning or suspension may have taken place. If that was so, there may have been some hostility towards the applicant at that time as a result of a possible banning or suspension. However, the Tribunal notes that the applicant’s grandparents and eldest daughter are living in their home village and have come to no harm and there is no claim or evidence that they have been threatened. The applicant responded to this by saying he missed his grandparents and would like to see them again but did not address the issue raised.

100. Further the applicant has been away from Fiji since 2015 and in view of the passage of years, the Tribunal considers any such hostility, if there were any, would have abated. In any event it notes that the claim is entirely speculative. There is no other evidence which supports a claim that the applicant would be harmed by villagers due to his conduct in leaving the SWP two months before the end of the contract.
101. The applicant also suggested that he may be viewed as being critical of the Fijian government because he left his job as a rural teacher and joined the SWP. There is no evidence or country information to support this claim and the Tribunal does not accept it. It appears to be speculation on the applicant’s part.
102. The Tribunal also considers that as time has gone on the applicant has settled into life in Australia with an Australian partner and is [working]. He gave evidence that he provides financial support for his children and grandparents and he sees this as an important obligation. He gave evidence that the salaries in Fiji are poor, he has three children to support and on his teacher’s salary it was difficult to make ends meet. Given the passage of time and the absence of any reliable evidence or information indicating that returnees in similar circumstances have faced harm in Fiji, the Tribunal considers that the current reason he is reluctant to return to Fiji is for reasons of his lifestyle and for financial reasons rather than a genuine fear of harm on his return.

Does the applicant meet the refugee criterion?
103. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Fiji now or in the foreseeable future he faces a real chance of persecution for reasons of imputed political opinion or his membership of a social group, that is, a participant in the SWP who broke his six-month contract.
104. The Tribunal has accepted that the applicant did not comply with his employment contract as a part of the SWP. It accepts that he left his employment after four months when his contract stipulated that he would work for a six-month period.
105. The applicant has given evidence, which the Tribunal accepts, that after he commenced the SWP in Australia, he experienced harsh working conditions and was disappointed in the level of his pay.
106. Country information indicates that the Fijian government was heavily involved in supporting and promoting the SWP and following claims that workers were being exploited in 2015, the government took steps to investigate the claims made by former workers. There is no evidence that the Fijian government authorities took any action or mistreated any individual who had complained about work conditions or left their employment before the end of the term.
107. The Tribunal accepts that the applicant initially feared he may face being fined, or imprisoned for leaving the program two months before the end of his six-month contract on the basis of statements made to him by persons in the program such as his leading hand and other representatives of the company. However, the Tribunal considers that those statements were not correct and there was no real foundation for the applicant’s fears. There is no country information or other evidence before the Tribunal indicating that any person has faced a fine or imprisonment by government authorities for reasons of abandoning the SWP before the end of their contract of employment.
108. There is also no country information or any other evidence that any persons who have abandoned the program have faced any other mistreatment, such as physical abuse, detention or other mistreatment, by Fijian government authorities if they have returned to Fiji. The Fijian government has publicly stated that workers who have abandoned the program have no reason to fear harm by the government. While the Tribunal accepts that the success of the program is important to the Fijian government, it considers that the investigation of some workers’ complaints by the Australian and Fijian government authorities indicates the complaints were taken seriously and have led to some companies being suspended from the program as well as a greater commitment from the Fijian government to carefully recruit and select appropriate persons to work in the agricultural sector in Australia under the SWP.
109. The Tribunal does accept that the Fijian government took steps to restrict participation in the SWP from communities where members of the communities had transgressed or had poor work experiences in the SWP. However, the Tribunal does not accept that the applicant will face harm from members of his village community for reasons set out earlier in this decision.
110. The Tribunal also does not accept that he will face any disciplinary action or mistreatment by the Fijian government for leaving his employment as a teacher in 2015 for reasons set out earlier in this decision.
111. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s.5J(1)(a) of the Act.
Does the applicant meet the complementary protection criterion?
112. Having found that the applicant does not meet the refugee criterion, the Tribunal has considered whether on the evidence before it, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
113. The Tribunal accepts the applicant left his employment under the SWP before the end of his six-month contract but for reasons set out above does not consider he will suffer significant harm for this reason if he returns to Fiji. It has not accepted he faces harm for reasons of leaving his teaching job. The Tribunal also does not accept that he will face significant harm from members of his village community if he returns to Fiji.
114. The applicant has claimed that he was not able to earn enough in Fiji to properly support his grandparents and three children and while the Tribunal accepts that the level of remuneration in Fiji is less than he could earn in Australia, it does not consider that this constitutes a risk of significant harm if he returns to Fiji. He has supportive family members, has worked as a teacher in the past, has [trade] qualifications, has worked in [a particular] industry in Australia and has also assisted his grandparents in kava farming. He had demonstrated that he has many skills. If he returned to Fiji he would be able to use these skills to obtain employment or practise an occupation.
115. He has given evidence that the Tribunal accepts that he has formed a relationship in Australia and sees this as a long-term relationship and is working in [a particular] industry in Sydney. It is understandable that he wants to remain in Australia, however the Tribunal does not accept that he faces significant harm if he returns to Fiji.
116. Having considered the applicant’s circumstances singularly and on a cumulative basis, and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
Conclusion
117. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
118. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
119. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
120. The Tribunal affirms the decision not to grant the applicant a protection visa.
Louise Nicholls

Senior Member
ATTACHMENT A
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
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.
…

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.
…

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.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

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 the 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 of 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 of persecution would not exist if it were assumed that the fear of 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.
…

36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.
…

[2021] AATA 1016

25 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction