1701418 (Refugee)

1701418 (Refugee) [2022] AATA 4558 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Cindy Zhao
CASE NUMBER:  1701418
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Vlahos
DATE:7 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 7^th October 2022 at 7.46AM.
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to the military takeover in 2006 – opposition to Bainimarama – land dispute with an Indo-Fijian – credibility concerns – country information – property law in Fiji – constitutional immunity for public servants – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
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 & Anor (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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 January 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 2 November 2016. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments. The Tribunal did not receive any oral evidence from any other party on the applicant’s behalf.
The applicant was represented in relation to the review. The representative, Ms Cindy Zhao LL.B, No Borders Migration Advocates who attended the Tribunal hearing.
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 (Cth) (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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether Australia has protection obligations in respect of the applicant and for the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality & identity
Based on copies of the applicant’s passport which was provided to the Department of Home Affairs (‘the Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Fiji and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa).
Based on the abovementioned reasons, the Tribunal further accepts the applicant’s identity as claimed.
Background – Migration history
[In] May 2016 the applicant arrived in Australia and was immigration cleared on a FA Subclass 600 visa. On 2 November 2016 the applicant lodges an application for a Protection visa which the Department’s delegate refused to grant.
The applicant’s Protection visa claims
The applicant’s claims submitted to the Department[1] as part of his application for Protection visa can be summarised as follows:[2]
§The Applicant left Fiji because of the behaviour of the government. He feared persecution and was not able to express himself freely.
§If the applicant returns to Fiji, he will be continuous torture.
§The applicant was harmed because he had a government job.
Applicant’s – Personal Background
[1] see Department of Home Affairs File no. [number].
[2] Ibid Department File decision record dated 10 January 2017.
The applicant is a Fijian national who was born in [Town 1], Fiji. He has family living in Fiji which consists of his mother ‘who lives in the village’ but no other family members are currently living in Fiji. He has a sister and relatives who live away from Fiji. The applicant is married, his wife and daughter are living in [Country 1]. While residing in Fiji, the applicant worked as a ‘[Occupation 1]’ for [a government department] where he worked for ’15 years.’ The applicant’s education level was described as at ‘Level 10’ and thereafter, he attended a ‘vocational training school.’ The
What were the issues which caused the applicant to leave his country?
The Tribunal asked the applicant to explain as to what were the issues which caused him to leave Fiji to go to [Country 1] and later to Australia? The applicant described his situation while being in Fiji a ‘fear’ and went on to state that in Fiji ‘your voice is not heard’ by the government.
The applicant said that ‘in Fiji’ a citizen – like himself, ‘cannot say anything – your freedom of expression is limited.’ The applicant described the situation in Fiji as the ‘people’ are ‘divided’ in those who support the current government and ‘others’ who are opposed to the current government and its policies.
The Tribunal asked the applicant if, while in Fiji, did he protest against the current government and what consequences did this invite upon him and why? The applicant told the Tribunal that his problems commenced in 2007 when his ‘cousin was killed’ by a person belonging to the Fijian military.
The applicant said that the entire situation which led to his cousin’s death was caused by a dispute over land owned by the applicant’s family which was being claimed by an Indo-Fijian.
The applicant said that the Indo-Fijian wanted to increase his share of landownership and would do anything to achieve his goal. The applicant’s cousin and family objected to this ‘land grab’ and were determined to oppose any such move.
The applicant also said that the government of the day did not show much interest in their plight and concerns to safeguard their family’s lands. The applicant explained that the Fijian government did not act with justice for the Fijian people in such matters.
The applicant said that there was a public protest about this land grab which he and his cousin participated in 2007 which also opposed the coup that had happened and there was ‘a confrontation with the military and his cousin was killed.’
The applicant said that his cousin disappeared and later was found dead, when an ‘opponent reported him’ and ‘he was never found alive again’.
The applicant said that this incident involving his cousin ‘was reported in the newspapers.’ The Tribunal asked the applicant if he had the newspaper article available for the Tribunal to observe and read. The applicant told the Tribunal (after searching his documents) that he could not find the article in question but would ‘search and provide it to the Tribunal.’ The Tribunal made it known to the applicant and his Legal counsel that the referred to newspaper article be copied and provided to the Tribunal within 14 days (from 22^nd September 2022).
The applicant described this dispute (concerning land) as an Indo-Fijian had leased land that bordered the applicant’s family’s land and had proceeded, despite increasing protests from the family, to try and ‘steal more land.’ When the protests broke out with the applicant’s cousin in the forefront, local army members intervened which caused the death of the applicant’s cousin.
The applicant said that between 2007-2010, the military were still in control of the government in Fiji and the applicant and family could not get justice. The applicant went on to say that the family could not take the matter to court and that there was not in existence any ‘title deeds.’
According to the applicant, even the government of today is corrupt and unwilling to support the rights of Fijians.
The applicant said that inaction by the authorities over the land dispute and the death of his cousin caused him to ‘fear for his life’ while he remained living in Fiji. The applicant described the current situation in his country as ‘our voice is not being heard…’ The applicant also said, that if ‘you do not follow the rules of the government, you will not receive any help.’
The Tribunal brought to the attention of the applicant that Fiji currently is a ‘democratic state’ with a ‘democratically elected government’. The Tribunal asked the applicant, if that is the current country information, why is he describing the situation as he did? The applicant said that ‘everything in Fiji is controlled…’ They (meaning the authorities) have changed everything before…’
The applicant acknowledged that he had left Fiji in 2010 to work and live in [Country 1] on a ‘validly issued Fijian passport’. The applicant also acknowledged that he experienced no issues leaving Fiji and did not believe he would have issues returning to Fiji.
The applicant and his legal counsel were provided with fourteen days (14) to provide further written submissions.
At the hearing the applicant’s legal counsel provided the following written submission.[3] In summary the following was provided:
[3] see, AAT File, see submission from No Borders Migration Advocates dated 15 September 2022 per Ms. Cindy Zhao
§The applicant left Fiji because of the behaviour of the government and he feared persecution if he returns to Fiji.
§The applicant says that the Fiji Islands have been gripped by political turmoil and coups in the span of 20 years, and he had witnessed or experienced 3 of these violent take overs since 1987.
§According to the applicant, his third experience was on 5 December 2006. This was the ‘worst ever coup his life’ because the applicant was working for the Government at the [specified] Department, ‘when he saw that the Fijian military took over the democratically elected government.’ The applicant saw soldiers killing civilians without justification and the Military controlled government gave Fijians like the applicant ‘no rights to voice his opinion.’
§During this period the applicant was personally involved in his cousin’s [Mr A]’s case and ‘witnessed his death.’
§The applicant’s cousin owned a piece of land in the village of [Village 1], in [Area 1], Fiji, about 46.3 acres and this property was adjacent to another piece of land of the [Village 2] in [Area 1], which was 22.2 acres. The [Village 2] landowner was an Indo-Fijian and greedy and wanted to share equal rights of the two blocks of land, 50/50. The applicant’s cousin refused.
§The [Village 2] landowner complained about this to the Army Camp and [in] January 2007, the RFMF soldiers forced the applicant’s cousin into an army vehicle.
§Before the army truck arrived at the army camp, the applicant’s cousin was taken to hospital and was pronounced dead on arrival. The cousin had been tortured badly to death.
§The applicant was devastated by this event – especially when he saw his cousin’s picture in the newspaper.
§The applicant, together with the cousin’s family, sought justice but nothing was done.
§The applicant heard that among the group of soldiers who killed his cousin, only one soldier was jailed for the killing and that soldier was later released (3 years after).
§The applicant’s family (most) who had supported his late cousin left Fiji to work in [Country 1].
§The applicant left Fiji for [Country 1] in 2010 and then in 2016 came to Australia.
§The applicant has strong views against the Fijian government as he has been traumatised in witnessing the country’s turmoil and the injustice caused by the death of his cousin.
§The applicant fears that if he returns to Fiji, he will be killed by the [Village 2] landowners, or by the group of soldiers that killed his cousin in revenge, or the security forces may persecute him because of his strong views (he has) against them.
COUNTRY INFORMATION – FIJI - LAND DISPUTES – THE RULE OF LAW – THE MILITARY – THE POLICE – HUMAN RIGHTS – JUDICIARY – STREET PROTESTS – PERSONS INVOLVED IN COUPS AND THE FIJIAN GOVERNMENT.
Land rights and property law and rights are controversial in Fiji as they are in Australia. The colonial government allocated ancestral land to traditional owners who now own most of the land in Fiji. Indo-Fijian indentured workers were not given access to land by the colonial government and iTaukei were prevented from working on the sugar cane plantations.[4]
[4] DFAT Country Information – FIJI – May 2022 at paragraph [2.24]
About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years, but land is usually leased for 30 years. Residential leases are longer, and leases can be bought and sold.[5]
[5] Ibid [2.25]
Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. A tenant can be removed from land if it is not maintained or used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time). This involves a breach of lease and a court process that can lead to eviction.[6]
[6] Ibid [2.26]
Informal land use (‘squatting’) is common. Most squatting is done with the permission of the landowner; for example, extended family using the land without a formal lease agreement. Informal land users have few legal rights and may be asked to leave at any time. Internal migration from rural areas to cities has increased the number and size of informal settlements in recent years.[7]
[7] Ibid at [2.27]
The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.[8]
[8] Ibid at [5.1]
The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.[9]
[9] Ibid at [5.2]
Although the military is an active and visible presence in Fiji, they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état (see Recent history) are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.[10]
[10]Ibid at [5.3]
Upon expiry of their original enlistment period, RFMF members are transferred to the Reserve until age 55. They can be recalled to service by the President until that age in cases of ‘invasion, war or danger … or by reason of any internal emergency’. DFAT is not aware of any recent examples of this occurring.[11]
[11]Ibid at [5.4]
In the unlikely event that a reservist is called up for service, absence from Fiji at the time of being called up would be a reasonable excuse for non-attendance according to section 20 of the Republic of Fiji Military Forces Act 1949. The penalty for refusing service without a reasonable excuse (noting that absence from Fiji is a reasonable excuse) is up to 12 months’ imprisonment or a fine not exceeding FJD 100. DFAT is not aware of any cases of a reservist being imprisoned for being absent for the purposes of making an asylum application outside Fiji or any other absence reason.[12]
[12]Ibid at [5.5]
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to dis[13]rupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.[14]
[14]Ibid at [5.6]

Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.[15]
[15]Ibid at [5.7]
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated.[16]
[16] Ibid see paragraph [5.8]
Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.[17]
[17] Ibid see, [5.9]
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[18]
[18] Ibid see, [5.10]
Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.[19]
[19] Ibid see, [5.11]
According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide. [20]
[20] Ibid see, [5.12]
Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported. [21]
[21] Ibid see, [5.13]
Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses. In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident. [22]
[22] Ibid see, [5.14]
A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest. [23]
[23] Ibid see, [5.15]
With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube. Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them.[24]
[24] Ibid see, [5.16]
Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.[25]
[25] Ibid see, paragraph [5.19]
The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. It provides services in family, criminal and civil law and may file out briefs to private lawyers who may volunteer their time and expertise. Eligibility criteria apply, with an annual income threshold of FJD15,000 (about AUD10,000). The Commission has recently increased its geographic outreach and more people, including in rural and maritime areas of the country, are now able to access its services. There may be few other lawyers practising in more remote areas, which may in practice mean that people cannot access representation, especially where Legal Aid is already acting for the other party. The quality of legal services provided by legal aid is variable.[26]
[26] Ibid see, paragraph [5.20]
People involved in coups d’état: Fiji has had four coups d’état in recent history. The leader of the 2000 coup, George Speight, is still in prison. Sitiveni Rabuka, who instigated both of the 1987 coups, later served as Prime Minister and Leader of the Opposition. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups[27].
[27] Ibid see, [3.40]
People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public service is immune from prosecution as set out in the Constitution. DFAT understands from in-country sources that the 2006 coup may be a sensitive topic but is not aware of a related pattern of violence or discrimination[28].
[28] Ibid see, [3.41]
Fiji has a vibrant human rights NGO scene relative to its small size. NGOs include those linked to women’s rights, trade unions, environmental activism, religious organisations and health services. Human rights organisations are registered under the Charitable Trusts Act 1945 and associated decrees. There is some ministerial discretion in the law, for example the Minister can revoke the appointment of NGO officials or refuse registration for a NGO. DFAT understands that these provisions are not often used, and that NGOs generally operate freely. Some politicians might accuse civil society organisations (CSOs)of being politically biased but DFAT is not aware of a strong pattern of incidents of interference. DFAT assesses that NGOs, and their members are at low risk of official discrimination.[29]
[29] Ibid see, [3.42]
Street protesters: Street protests are relatively uncommon in Fiji. In the last several years protests have been especially uncommon due to COVID-19 lockdowns and restrictions. The lack of protests may also be related to the country’s turbulent political history and police restrictions; permits are needed for a protest and these are sometimes denied. Violence has been reported in some protests and police will attend to violent incidents, but there is no suggestion that street protests or street protesters are inherently violent.[30]
[30] Ibid see, [3.26]
DFAT assesses that protesters in general may be prevented by the state from protesting lawfully. DFAT notes that COVID-19 restrictions against protest have been enforced by police as they have elsewhere, including in Australia. Laws, including provisions outlawing sedition and the Public Order Act, can be used against protesters which can lead to prison sentences. DFAT has not observed a strong pattern of interference against low-level attendees of protests (protest leaders are more likely to be charged). On that basis, DFAT assesses that protesters face a low risk of official discrimination but notes that such discrimination is not impossible.[31]
[31] Ibid see [3.27]
People involved in coups d’état[32] Fiji has experienced four coups in recent history. The leader of the 2000 coup, George Speight, is still in prison. Sitiveni Rabuka, who instigated both of the 1987 coups, later served as Prime Minister and Leader of the Opposition. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups.
[32] see, DFAT Country Information Report – Fiji – May 2022, paragraph [3.40]-[3.41] at p. 16
People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public is immune from persecution as set out in the Constitution. DFAT understands from in-country sources the 2006 coup may be a sensitive topic but is not aware of a related pattern of violence or discrimination.
Further evidence and written submissions by the Applicant
On 29 September 2022 the applicant through his legal counsel, Ms. Zhao, No BordersMigration Advocates, provided further evidence and a written submission.
It was noted that the applicant claimed (in the written submission) that “the death of his cousin [Mr A] has been a sensational event in Fiji and reported extensively around the world to the extent that his cousin has been elevated to become the name and prominent martyr of Fiji’s human right[s] abuse in terms of deaths in custody, arbitrary or unlawful deprivation of life and the State authorised impunity for violations of the right to life.”[33]
[33] see, Applicant’s legal (written) submission, see p.1 in AAT File documents.
Other documents which were provided as “attachments” to the (further) written legal submission were as follows:
·A copy of an online blog named ‘[title]’ on [website] dated [in] July 2007 provided a plausible insight to the circumstances of the applicant’s cousin’s death with the name [abbreviated].[34]
·The applicant’s cousin’s death has been used in Fiji for political purposes.[35]
·There has been a petition to rescind the appointment of [Dr B], as [position] referring to the death of the Applicant’s cousin.[36]
·His cousin’s murder was investigated by the Fijian police commissioner in 2007.[37]
·The applicant’s cousin’s death was highlighted in a world press discussion about Fiji politics.[38]
·A newspaper report, “Violence ‘every day’ in Fiji” dated 23 June 2007, Southern Times reported the death of another human right victim Rabaka who died age 19-years after a Fijian Police and army beating.[39]
·Online posts were created to remember the applicant’s cousin.[40]
·[Named media] reported in 2009 that one of the soldiers who killed the Applicant’s cousin was convicted of manslaughter and given a three-year jail sentence for the killing.[41]
[34] [Source redacted].
[35] [Source redacted]
[36] [Source redacted]
[37] [Source redacted]
[38] [Source deleted].
[39] [Source redacted]
[41] [Source redacted].
The applicant also submitted comments made on [social media] which spoke about the Fiji security forces committing extensive human rights abuses named the applicant’s cousin as the first victim of the security forces.[42]
[42] [Source redacted]
Evidence was provided in writing of the applicant’s relatives openly condemning the government. In 2016, the brother of [Mr A] killed by a soldier after the 2006 coup was reported to have stated that the Fiji government lied about human rights in Fiji at the UN forum on Human Rights in New York.[43]
[43] [Source deleted]
The legal counsel’s submission went on to say as follows:[44]
The name of the applicant’s cousin [Mr A] symbolises high profile victims of the human right abuse committed by the Fijian government headed by Bainimarama and [the] security forces that were the backbone of the Bainimarama government. The applicant’s family have been highly vocal on their views against [the] government in seeking justice because [of] the death of his cousin, and the applicant is holding the same views against the Fijian government and cannot hide these views.
[44] see, AAT File, applicant’s legal written submission at p. 17
The legal counsel’s submission concludes by describing the ‘current Fiji government’ as being ‘the same government headed by [then General] Bainimarama as in 2007 when the applicant’s cousin was killed.’ According to submission, ‘there are a number of high-profile collaborators who were involved in the applicant’s cousin’s killing [and] [who are] most likely in the local area’ and this created a concern for the applicant ‘should [he] be removed to Fiji, [he] will be at a risk of harm by the Fijian government and security forces’.[45] The submission also claimed that the applicant could be (if returned to Fiji) ‘abducted, tortured, detained, killed or disappear, like his (late) cousin by the security forces, the reason being that the applicant was ‘a close relative of his high profile deceased cousin’[46] and ‘holding anti-government views’ by seeking justice for his late cousin.[47]
[45] Ibid
[46] Ibid
[47] Ibid
REASONS FOR DECISION
Question of credibility – preliminary comments
The Tribunal is aware of the importance of adopting a reasonable approach in a finding (or findings) of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [194]:
“care must be taken that an over-stringent approach does not result in an exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted…”
The Tribunal also accepts that “…if the applicant’s account appears credible, he should unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, (1992) Geneva, see paragraph [196]. However, the Handbook states at (paragraph [204]) that:
“The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts…”
When assessing claims made by the applicant, the Tribunal needs to make finding of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing this, it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.
The Tribunal must bear in mind that if it 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 be possibly true: see, MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any, or all the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the particular assertion of an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Summary of claims made before the Tribunal
The applicant claims that he will be persecuted because of his actual or imputed political opinion being a protestor against the coup of 2006 and that he remains a person of interest to the current Fijian government (which comprises of persons who instigated the 2006 coup). He claims that he may be arrested, charged, and prosecuted in an unfair trial or tortured or killed in police or military custody if he returns to Fiji because he supported his late cousin in his opposition to the military takeover in 2006. The applicant claims to hold a political opinion opposing the current government and current prime minister, Frank Bainimarama.
The applicant claims he became involved in a land dispute with an “Indo-Fijian” who was demanding from his family’s (traditional) land which they owned in their village. According to the applicant, these Indo-Fijian interests were demanding a ‘50% use’ of the land in question. The issue, according to the applicant, was met head on by his family and fellow villagers and this was met with resistance by the local security forces and military. The dispute (according to the applicant) coincided with the then military coup which had occurred in 2007.
The applicant claims that his now deceased cousin participated in protests against the military and security forces. There were a series of very public altercations which resulted in violent protests and at one of these protests his late cousin was apprehended, taken away for questioning by the authorities and later it was made known that the applicant’s cousin had been “killed” by the military. The applicant claims that he was engaged (in what followed) in protests and public outcry together with other family members – seeking an investigation into his cousin’s death and the punishment of all persons who were involved or caused his untimely demise. The applicant claims that this involvement has made him a ‘person of interest’ to the current government which has within its ranks those who had instigated the coup.
Did the Applicant have a political profile of interest to the Fijian authorities at the time he chose to leave Fiji?
After careful consideration of all the evidence before it, the Tribunal has concerns about the applicant’s recollection of events and concludes that the applicant has exaggerated and embellished his claims about his association with his late cousin and his involvement in his late cousin’s public protests against the coup instigators in 2006 which eventually caused his untimely death.
The applicant in his evidence at the hearing told the Tribunal that his late cousin had taken up protests against the coup instigators which today are the legal government of the Republic of Fiji. The applicant argued that there were pressures being placed on his family in the village to relinquish part control of their land holdings to an Indo-Fijian who was very powerful locally. At paragraph [21] the applicant in his evidence told that an Indo-Fijian wanted to increase his share of landownership and would do anything to achieve his goal. The applicant’s and his family objected to this ‘land grab’ and were determined to oppose any such move. At paragraph [22] the applicant said the government of the day did not show much interest in their plight and concerns to safeguard their family’s lands. The applicant said that the Fijian government did not act with justice for the Fijian people in such matters. At paragraph [23] the applicant’s evidence was that there was a public protest about this landgrab which he and his cousin participated in 2007 which also opposed the coup that had occurred and there was a confrontation with the military and his cousin was killed.
The description of the land dispute as submitted to the Tribunal by the applicant lacks credibility. The issue of credibility emanates first, from the available country information. The country information the Tribunal has included above reports that land rights are controversial in Fiji as they are in Australia. DFAT states that Indo-Fijian indentured workers were not given access to land by the colonial government and the iTaukei were prevented from working on sugar cane plantations.

The same DFAT report states, that about 90% of land is owned by traditional owners, with 6% government-owned and 3% freehold land. iTaukei owners often lease land to others through government-coordinated leasing system. There are restrictions on land use.[48] Land banking is outlawed. According to DFAT, both iTaukei and Indo-Fijian lease land from traditional landholders but it cannot be brought or sold, only leased. A tenant can be removed from the land if it is not maintained or used for it unintended purposes. This involves a breach of lease and a court process that can lead to eviction. It would seem from the available information that the process of land allocation is heavily regulated by the state with sensitivities and protections in place to protect the traditional land holders, like the applicant’s family. Also, Indo-Fijians are not allowed by law to be landowners. Indeed, if there was a land dispute as claimed, there was, and is, a process in place to resolve disputes in state-run land courts. Moreover, Indo-Fijians may lease but ‘cannot steal more land’ as the applicant claimed in his evidence before the Tribunal. However, even if there was an attempt to steal traditional lands, it would be prevented by the regime of property law in place in Fiji.
[48] see DFAT Country Information Report – Fiji – May 2022 at paragraphs [2.24] to [2.27] at p.9
Other aspects of concern with the applicant’s evidence concerning the alleged land dispute, was that the applicant provided a very limited description of the land that was the subject of the dispute which resulted in local protests and the death of his cousin. When asked by the Tribunal to describe the subject land or if there were any documents as evidence of possession of land by his cousin’s family, the applicant described the land as land in ‘his village’ but told the Tribunal that there ‘were no titles’ or copies of such available. Therefore, the Tribunal does not accept that there was a land dispute between the applicant’s family involving the applicant and his late cousin with a land grabbing Indo-Fijian. Nor does the Tribunal accept the claim of the applicant that the Fijian authorities refused to intervene to protect his family’s traditional lands against a possible landgrab by a local Indo-Fijian.
Another aspect of the applicant’s evidence which caused a credibility concern to the Tribunal was the applicant’s role in the protests against the coup regime at that time as he claimed.
The applicant (see paragraph 23) told the Tribunal ‘there was a public protest about this land grab which he and his cousin participated in 2007 (specific date was not tendered) which also opposed the coup that had happened and there was a confrontation with the local military units and his cousin was killed.’ Further, (see, paragraph 24) the applicant’s evidence was that his cousin disappeared and later was found dead.’ What is of concern, to the Tribunal is that the applicant in his evidence appears uncertain as to his actual position on that fateful day. Was he present? If he was present at the protests, why was he not apprehended together with his ill-fated cousin.
Obviously, from the applicant’s evidence it can be assumed that he was not there and what he told the Tribunal about his own circumstances was an embellishment of truth with the sole purpose of attracting to himself Australia’s protection obligations as provided for in the Act.
The Tribunal noted that the applicant offered no explanation in his later written submission with regards to his own role at these protests where he escapes the attention of the authorities, but his cousin is taken away, detained, and subsequently murdered. The Tribunal does not accept the applicant’s claim that he is or would be a person of interest to the current government because of his involvement in protests against the coup in 2007 where his cousin had been killed by units of the Fijian military.
Indeed, even if the there was some semblance of truth of the applicant having been involved in protests against the coup, a long period of time has passed since then. Fiji has had four coups d’état and interest by the authorities in those events and those involved in those events has diminished. According to DFAT ‘people involved in more historic coups will likely have already been punished for any crimes related to these events and many enjoyed successful careers after the coups.’ More to point, even if the applicant was imputed with some political belief against the coup perpetrators (in 2006) because of his late cousin’s protests, DFAT reports that ‘any person involved in the coup who held office or was a member of the public service (the applicant claimed being a member of [a government department]) is immune from prosecution as set in the Constitution.’ DFAT goes on to report ‘from in-country sources that the 2006 coup may be a sensitive topic but is not aware of a related pattern of violence or discrimination.’ Therefore, the Tribunal concludes and finds that from the evidence before it, the applicant would face no adverse attention from the current government for his politics past or present. Indeed, his profile - that of a minor public servant working in the [government] Department would in the Tribunal’s opinion cause him no real harm or attach to him any real concern by the Fijian authorities.
Finally, the Tribunal as it noted above, was provided with a plethora of news articles concerning the death of the applicant’s cousin. Of particular note was the document entitled ‘[title]. That blog note described the ‘dispute’ which caused the protests and later violent death of the applicant’s cousin as follows:[49]
[Details redacted]
[49] AAT File see documents attached to legal (written) submission dated 29/9/2022.
From reading the above, what is clear to the Tribunal is that no Indo-Fijian was involved in a local landgrab as was claimed, but instead it was a dispute over land title between the applicant’s cousin’s family and other Fijians of prominence which had links to the armed forces. The Tribunal was told differently at the hearing. What is noted is that the later submission provided by the applicant’s legal counsel made no mention or offered an explanation as to why the applicant’s recollection of the circumstances that formed a significant part of his claim were different from the later evidence as was submitted.
Having said this, the Tribunal accepts that the applicant’s late cousin and his family was involved in a dispute over traditional lands which involved indigenous Fijians of significance and with connections to the Fijian armed forces which instigated the 2006 coup. What the Tribunal does not accept is the claim that the applicant submitted that told the Tribunal of his immediate and direct involvement in the public protests in 2006/7 which resulted in his cousin’s death. The applicant provided no evidence of his direct involvement in these protests or any evidence that he was singled out by elements of the armed forces. What is of note from the information provided is that the applicant’s cousin’s wrongful death was dealt with by the new regime (now the government) and those who caused the cousin’s death were apprehended and tried in the High Court and sentenced to imprisonment (3 years).[50] As far as this matter is concerned, it has ended, and a considerable period of time has passed since 2007 which leads the Tribunal to conclude that the issue has as far as the Fijian authorities are concerned has ceased to be significant. Hence, the Tribunal is of the opinion that there are no imputed (political) consequences attaching to the applicant because of his cousin’s actions against the army which caused his death in 2007 at the hands of certain elements in the military. In light of the available evidence, the Tribunal concludes and finds that the applicant is not of any interest to the Fijian authorities for any matter or matters which may have originated in 2007 because of the coup of 2006.
[50] see articles dated 1/4/2009, 2/4/2009, 6/4/2009, 7/4/2009, 7/4/2009 in AAT File attached to Legal (written) submission dated, 29/9/2022.
The Tribunal has considered what it has accepted of the applicant’s claims singularly and cumulatively. Overall, the Tribunal is not satisfied that the applicant has a political profile that gives rise to a real chance that he will be accused of, or suspected to have been involved in inciting sedition, treason or urging political violence in Fiji in the past or that he will considered by the authorities of wanting to do the same now or in the reasonably foreseeable future if he is returns to Fiji. The Tribunal is not satisfied that the applicant has engaged in any conduct while in Australia that, even when considered cumulatively with what the Tribunal has accepted of his claims, would lead to a real chance of him attracting the adverse attention of the Fijian authorities if he returns to Fiji now or in the reasonably foreseeable future. The Tribunal finds that there is no real chance that he will be of adverse interest to the military, the police, or anyone else in Fiji for reasons related to his actual or imputed political opinion and rejects, in their entirety, his claims (in the later written submission) that he will be tortured, mistreated, killed, detained, subject to an unfair trial or otherwise harmed or discriminated against on this basis.
Having regard to its findings of fact about the applicant’s circumstances including his political opinions, family connections, and race (indigenous Fijian), the Tribunal is not satisfied that there is a real chance that he will face serious harm for any of the reasons claimed. In summary, having considered the claims made by the applicant singularly and cumulatively, the Tribunal is not satisfied that he has a well-founded fear of persecution as defined in s. 5JH if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the applicant does not satisfy the criterion set out in s. 36(2)(a).
Conclusions – Complementary Protection
Having concluded that the applicant does 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.[51] ‘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.
[51] MIAC v SZQRB [2013] FCAFC (Lander, Besanko, Gordon, Flick and Jagott 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 finds that there is not a risk that the Fijian authorities would regard the applicant as an enemy of the state or question, interrogate, or mistreat the applicant as claimed. The Tribunal does not accept that the applicant would be of adverse interest to the authorities in Fiji for any of the reasons claimed and rejects his claims that he will be questioned by the authorities about his past association with his late cousin and his protests against the coup perpetrators in 2007.
Having regard to its findings of fact and the country information set out above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will face significant harm for reasons of his past association with his late cousin. The Tribunal finds that there is not a real chance that the applicant would be charged with sedition, or any other offence, arrested, interrogated, tortured, killed, or subjected to any other significant harm as defined in s. 36(2A) if he returned to Fiji for reasons of any past activities he may have supported, involved in, or associated with.
Having considered the applicant’s claims singularly and cumulatively, the Tribunal does not accept that there is a real risk that he will face significant harm for reasons relating to his indigenous race, his associations with others opposed to the instigators of the 2006 coup d’état, or his actual or imputed political opinion if he returns to Fiji or for a combination of these reasons. On the evidence before it, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk, he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person whom Australia has protection obligations under s.36(2)(aa).
CONCLUSION
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).
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).
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 the criterion in s 36(2).
decision

100. The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

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 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.
…

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.
…

[2022] AATA 4558

7 October 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction