1703756 (Refugee)

1703756 (Refugee) [2022] AATA 5170 (9 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1703756

COUNTRY OF REFERENCE: Fiji
MEMBER:Lilly Mojsin
DATE:9 December 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 December 2022 at 10:52am
CATCHWORDS
REFUGEE – protection visa – Fiji – race – Fiji Indian – religion – Sikh – fear of robbery – attacks on business – return visits to Fiji – state protection – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 February 2017 to refuse to grant the applicant a protection visa [PV] 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 15 November 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant will suffer serious or significant harm on return to Fiji, within a reasonably foreseeable future.
The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments via Teams video. In making arrangements to hear the matter via MS Teams during COVID restrictions and lockdowns, the Tribunal had regard to the legislative objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The Tribunal was able to interact with the applicant and the interpreter and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF Claims and evidence
In his PV the applicant claimed as follows:
·He came to visit his mother.
·He has been in danger so many times from the native Fijian who hate Indians especially ones with not much connection there. They got very jealous when he made some money and always want to rob him and his Chinese boss.
·If he returned to Fiji he will again be attacked by native Fijians and corrupt army officials and local police, and it doesn’t matter what he does or what he will try, or where he will go to live, he can’t get out of his skin and ethnic background. This has been happening to him for many years.
·He came to Australia once before to see his mother but he had to go back to protect his son who he could not leave alone at that time but when he got back there, it all started again. All of this is made worse because they are Sikh Indians and not liked in Fiji.
·It was the village chefs, criminals, corrupt army and police people [who harmed him]. Also, it was the other Fijian native people there because they hated him out of jealousness. They also think all Sikhs are rich because they make money. He was pushed around, threatened with violence if he didn’t give money or his fish. They also did this to his Chinese boss and so badly he even had to hide his fish and money also.
·Nearly all of these people said if he reported any of their attempts to extort him, then they would come back and bash him and his son, maybe kill him or his son and family. He was very scared. As the police were involved themselves there was no one else to turn to.
·He moved from his village to another island and then when it started again he moved back to another city but it began there also so when he had an invitation to come here he took it quickly.
·He thinks he will be harmed if he returns to Fiji because what he did to survive and make money is all he can do there again. So, the same kind of people will also do the same to him again. That is the cycle of life there. It cannot change because it is riddled with racism and discrimination especially towards Sikh Indians.
·He does not think authorities can protect him because it is especially the army and police who are the most corrupt so there is no way they will help. It is the reason this goes so far in the first place too.
·He cannot relocate because it happens everywhere he has been to in Fiji. The native Fijians hate people who make money, they hate most Indians, but especially Sikhs.
In support of his PV application, the applicant provided the Department with:
a.   A copy of Departmental letters notifying the applicant of the granting of visitor visas to the applicant on 5 August 2014, 10 September 2015, and 12 May 2016.
b.   A certificate of registration of the business [name] , dated [in] January 2012.
c.   A copy of the applicant’s Fijian passport (reference [number]) issued [in] 2012.
At the Tribunal hearing the applicant said that he has turned to Christianity.
He was born in [year] and his highest education qualification is Class 8. He is single. He came to Australia in 2014, 2015 and 2016. His mother [and specified family members] live in Australia. His son, who is married is [age] years old, is a policeman in Fiji. In Suva.
He came to Australia in 2016 to see his mother who lives here. He did not return because he has a problem. He had a shop in Suva. There were people who were threatening him. They were people from another caste. They didn’t like his business. He got people from overseas to come [for his services]. He also had a [specified] shop.
He used to get stuff from overseas. They wanted to know why and he told them it wasn’t any of their business. They were not business competitors. They were just getting some ideas as to what kind of work he was doing and why he was doing it.
They attacked him. They held him up and said, ‘hey, what’s this’, and he said ‘okay’. They came to his house. They followed him. They created a problem at his home. They asked him why he closed the shop early because the boy was working there, and so they came to his home and asked him. He told them that he was going to pray. Then they whacked him.
He got his passport, got his tourist visa and straight away came here.
I asked if anything else happened and he said that blood came out. He said he did not report him to the police. The same thing happened to his ex-wife’s family.
He was divorced in around 2005. His ex-wife sent someone to his shop, when his son was about [age range] years old in 2000, and that guy threatened him. He did not complain because if there was a complaint with the police, it would affect his visa.
Because of his ex-wife’s intervention he left Fiji and gave up his house to his ex-wife. Currently, his son is living in his house. Because of her behaviour, he sold his business.
He didn’t go to the police and lodge a complaint about his ex-wife’s behaviour because he feared that the authorities would stop him and would not allow him to come to Australia.
I put that to the applicant that he returned to Fiji after that incident in 2000. He responded that it is why he used to come and go. When he came in 2016, he changed his visa in 2017.
I put to the applicant that in 2017 he applied for a protection visa. Previously, he had gone back a couple of times even though his wife continued to cause him problems. He did not take any action against her. She was using other people against him and he did not have any proof to use against her. When he came here, she called him. Then he got private phone calls from some unknown boys and the boys told him that she was behind these instances.
I asked who called him and he said “someone from here called me on private numbers”. He was a Fijian guy. He told him that the incident that happened in Fiji, ‘your wife’s hand is behind those incidents’.
I asked what the applicant feared about returning to Fiji. He said that “they are going to hit me. And I don’t want that trouble anymore. At this age, if there is quarrel or there is fighting, someone will end up in jail”. Boys who are living there from another religion or caste will hit him.
I put to the applicant that he did not tell the Department about his wife’s actions or the boys. He responded “If I told at that time I could have been in trouble from the Department. I might have a problem there. They might have stopped me. That was my worry at the time”.
He did not tell the Department about this activity or action from his wife or the attacks on him by these boys because he did not want to get into trouble from the Australian Department of Home Affairs. He wanted to live his life peacefully without any trouble. That is why he did not disclose. He said he has provided a letter from one of the persons who has a business here. He was working there as well.
He fears returning to Fiji because he is scared of having a quarrel. I put to the applicant that if anybody attempts to harm him in Fiji, he can lodge a complaint with the police. He said that he does not want to do that because his son is working there and it may affect him.
I put that Fiji can protect him. They have an effective police force. If they do not do anything he can report the police for not taking action, and his son is a policeman. He responded “my life in danger. I am scared. My mum is sick here. She isn’t well”.
He said that he is working and paying taxes. His grandfather is now in [Country 1]. He left the country and is now settled in [Country 1]. He was [an occupation 1] in Fiji.
He had a shop there, other caste people attacked him. I again put to the applicant that he did not lodge a complaint with the police. He responded that if they go into jail they will be more difficult when they come out. They might harm him more.
I discussed the independent evidence that Fiji has an effective police force. The most recent elections were orderly and free from violence. He said earlier the situation was not so good. He sold the business and left and now is settled here.
I explained the independent evidence suggests that Indo-Fijians face low levels of societal discrimination, they do not suffer persecution. There is no evidence of official discrimination against Indo-Fijians based on their race or nationality. He did not agree.
I put that the recent DFAT report states that the government and authorities respect and protect Hindu freedom of religion and belief and worship. Hindu religions and operations operate freely. He said the temple was burnt down there. I put to him that when incidents do occur, and they have occurred, police respond appropriately. But there is no evidence of official discrimination of Hindus based on their religion. He said one of his cousins was attacked and he left Fiji in 2014 and is now in [Country 2].
I put that he is able to work in Fiji. There is nothing to stop him. He said that if he started a new business, they are going to give him trouble again.
I put to him that he worked for [Employer 1] in Fiji and he is able to work in Fiji. He said he shut it down and is now here. I put that the Fiji authorities are not going to prevent him from working. His son is a government employee.
I put that as his son is a policeman, his son therefore works for the Fijian government. That indicates that Fijian Indians are able to get employment. There is nothing to stop them. And if he was attacked or harmed, he was able to and will receive the protection of the Fijian government because the police will protect him.
He responded that his house, where his son is living is very old. It needs to be repaired. He needs to work very hard.
Asked about when he became a Christian, he said it was 3-years ago. He goes to church every Sunday. I put that if he has to go back to Fiji, he will be able to practice Christianity. He responded “I want to stay here. I want to stay here and look after my mum and my employer. He likes me and I like the job”.
The applicant’s Pastor stated that there is a lot of discrimination against Indo-Fijians in Fiji. The applicant has told him about his experiences. The applicant never really quite answered the Tribunal’s questions and did not explain the violence that took place or that the harm that he suffered because he was running a business. There is a lot of people who asked for a protection visa and they have been successful for similar things to what he said. There is discrimination, especially against Indo-Fijians.
REASONS AND FINDINGS
On the basis of his Fijian passport, I accept that the applicant is a national of Fiji and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Fiji. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am not required to accept uncritically any and all claims made by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility', 'Guidance on Vulnerable Persons' and ‘Guidelines on Gender’. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
By way of background[1] about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57% of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young, more than 80% of people are under 54 years of age.

43. The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
[1] DFAT Country Report Fiji 2022

I find that the applicant, is an ethnic Sikh Indo-Fijian, who is now a Christian. His mother lives in Australia whilst his son lives in Fiji and is a policeman there. I accept that the applicant is settled in Australia and has a job.
Fijians comprise approximately 57 per cent of the Fijian population, and Indo-Fijians 38 per cent. Tension has traditionally existed between the indigenous Fijian population, who are overwhelmingly Methodist Christian, and the ethnic Indo-Fijian population, who are primarily Hindu.
According to the 2007 census, 2,577 individuals listed their religion as being Sikh. This represents 0.86% of the Fiji Indian population. The constitution[2] establishes a secular state and protects freedom of religion, conscience, and belief. It also mandates the separation of religion and state. Most of Sikhs came to Fiji as free immigrants. Most members of the Sikh community are known to have established themselves as farmers, or worked as policemen, teachers and preachers. Sikhs established temples and gurdwaras. There are five Gurdwaras in different parts of Fiji. In a 2008 article[3] it was stated that Sikhs have one Kindergarten, three Primary schools and one Khalsa College. There are about 800 members of the Sikh community in Lautoka and about 1,500 in Fiji.
[2] US State Department Report Religious Freedoms Fiji 2021
[3]
Indo-Fijian merchants in Suva were targeted with violence and vandalism following the 2000 coup, in which Fiji's first lndo-Fijian Prime Minister was deposed. According to US State Department Human Rights Report Fiji 2000 after the May 19 takeover of Parliament and subsequent military takeover, unrest developed in many parts of the country. Much of the violence was directed at Indo-Fijian settlements; many such settlements, especially in rural areas, were terrorized. DFAT have indicated that the 2000 riots were generally assessed to be the exception to the norm. After the 2000 coup, discrimination against Indo-Fijians was pronounced. In 2009 the Prime Minister Bainimarama announced that a fourth constitution would be drafted by 2013 that would do away with the discriminatory provisions contained in the previous version.
DFAT in July 2010 stated that the claimed targeting of members of the Fiji Indian community does not identify Indo-Fijians as being at risk from authorities, though there was initially some low-level conflict with indigenous Fijians.
We are aware that some individuals and groups in Fiji have considered the regime and some of its policies to be 'pro-Indian'. Consequently, there have been a small number of cases where members of the Fiji Indian community have been subject to harm usually in the form of verbal abuse and intimidation (and generally from the indigenous Fijian community)…However, the main political party representing the Indo-Fijian community (the Fiji Labour Party), which had originally taken part in the interim government, is now identified as being opposed to the regime. This has resulted in some moderation of anti-Indian sentiments.
Freedom House reported in 2011 that race-based discrimination in Fiji is pervasive. Indigenous Fijians “receive preferential treatment in education, housing, land acquisition, and other areas”. The US Department of State International Religious Freedom Report Fiji 2011 noted there were “reports of societal abuses or discrimination based on religious affiliation, belief, or practice”. The Sydney Morning Herald in 2012 reported that “the political system split down ethnic lines during that period, most indigenous Fijians voting for Mr Qarase and Indian-Fijians voting primarily for then-opposition leader Mr Chaudhry”.

No information was located indicating that the police or army were specifically targeting Indo-Fijians for ill-treatment and/or arrest. Nor were reports located of Indo-Fijians being unable to access protection for specific reason of their ethnicity. DFAT advice in July 2010 stated that while there had been a small number of cases where Indo Fijians have been verbally abused or intimidated by the indigenous Fijian community, overall anti-Indian sentiment had been moderated by the opposition of the Fiji Labour Party to the interim government.
DFAT in its 2015 report stated that as of 2014, the treatment of Indo-Fijians by indigenous Fijian communities varied. A range of Indo-Fijians said that treatment had improved in recent years and that there had been a reduction in (reported) crime, including a reduction in theft, robbery, assault, burglary and desecration of temples. A range of contacts said that robberies of Indo-Fijian taxi drivers were frequent, but that these were not necessarily racially based: the majority of taxi drivers in Fiji are Indo-Fijian, and taxi-drivers are a vulnerable, accessible target. More broadly, most contacts assessed robberies to be motivated by income disparity, rather than race or ethnicity per se. Indo-Fijians are sometimes perceived to be wealthier than indigenous Fijians and are therefore more likely to be targeted for economic reasons.
Politics in Fiji today is no longer characterised by the unrest of the past. DFAT[4] reported that
the 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome 'broadly represented the will of Fijian voters'. In that report DFAT assessed that Indo-Fijians face a low level of societal discrimination and DFAT is not aware of evidence of official discrimination against Indo-Fijians based on race/nationality. iTaukei [ethnic Fijians] are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
The Government and authorities respect and protect Hindus’ freedoms of religion, belief and worship. Hindu religious and representative organisations operate freely. Some incidents of theft and violence have affected Hindu places of worship, but these are not common occurrences and the motives behind them are not always clear. When indents do occur, police respond appropriately. Overall, DFAT assesses that Hindus face a low level of societal discrimination, and there is no evidence of official discrimination against Hindus based on their religion.
[4] DFAT Country Report Fiji 20 May 2022
The applicant claims that there is racism and discrimination especially Sikh Indians. I reject his claim. I prefer to rely on DFAT, cited above, that there is no evidence of official discrimination against Hindus based on their religion.
The applicant also claims that Sikh Indians are not liked in Fiji. I accept that some ethnic Fijians may not like Sikh Indians and Hindus, and the independent evidence indicates that Indo-Fijians face a low level of societal discrimination.
The applicant claims that they [ethnic Fijians] also think all Sikhs are rich because they make money. They always want to rob him and his Chinese boss. He was pushed around, threatened with violence if he didn’t give money or his fish. They also did this to his Chinese boss and so badly he even had to hide his fish and money also. The applicant claims that native Fijians hate Indians especially ones with not much connection there. They hated him out of jealousy.
I have considered whether the attack or attempted attack on the applicant and his Chinese boss was for their ethnicity, religion or for membership of a particular social group. I accept that the applicant belongs to a particular social group, Sikh business owners and/or Sikh business owners perceived to be wealthy. I do not accept the attack/attempted attacks on the applicant and his boss occurred for their membership of a particular social group but was motivated by income disparity and for economic reasons. In light of the DFAT advice I do not accept that the attacks/attempted attacks were for his ethnicity or religion. I find that the applicant was not attacked or there was an attempted attack on him and his Chinese boss.
I accept that the applicant owned a shop in Fiji. He claims that other caste people attacked him, in 2016. He moved from his village to another island and then when it started again, he moved back to another city. At the Tribunal hearing the applicant said that they didn’t like his business, he was questioned why he imported goods and they were just getting some ideas as to what kind of work he was doing and why he was doing it. They attacked him. They held him up and said, ‘hey, what’s this’, and he said ‘okay’. They followed him to his home and created a problem there. They asked him why he closed the shop early because the boy was working there, and so they came to his home and asked him. He told them that he was going to pray. Then they whacked him and he was bloodied. His explanation for this attack was vague. DFAT states that Fiji is generally stable and secure. DFAT assesses that Indo-Fijians face a low level of societal discrimination and I have no evidence before me of Sikhs being harmed for their ethnicity or religion. I find his evidence regarding being attacked in 2016 in his shop to be vague and not based on compelling evidence. I am not persuaded that he was physically attacked in 2016. I find that the applicant was not attacked by other caste people in 2016 in his shop or at his home.
The applicant described this incident in 2016 and made no reference to his claim that it was the village chiefs, criminals, corrupt army and police people who harmed him, his focus was on people of other caste. As he did not make this claim at hearing, and when asked if anything else happened to him just said he was bloodied,I do not accept as plausible that village chiefs, criminals, corrupt army and police people harmed him.
The applicant claims his ex-wife sent a guy to his shop in 2000, and the guy threatened him. As a consequence, he left Fiji and gave his house to his ex-wife. They divorced in 2005 and because of her behaviour, he sold his business. His wife continued to cause him problems. I accept that he divorced in 2005 and he gave his house to his ex-wife. His son now resides in that house. I am not persuaded that he was threatened by a guy who was sent by his ex-wife and he found out about his wife sending the guy in 2016 when he received a telephone call from some unknown boys after he came to Australia. Nor am I persuaded that he sold his business, that he owned in 2016, because of his ex-wife’s behaviour as he stated that he was being attacked by other caste people. I found his explanation of what had occurred with his wife to be vague and not based on compelling evidence. Furthermore, the applicant travelled to Australia in 2014 and 2015, to visit his mother in Australia. His return to Fiji indicates a subjective fear of harm. I find that the applicant was not threatened by a guy in 2000 sent by his wife and he did not sell his shop because of his ex-wife’s behaviour.
Even were I to accept that the applicant was harmed for his ethnicity/religion I am not satisfied that the applicant suffered significant physical harassment or significant physical ill‑treatment. He was pushed around and threatened with violence if he did not give money or his fish. He had blood on one occasion when he was wacked after being followed home. The applicant does not suggest he needed medical attention or that he sustained any significant injuries. I am not satisfied that the harm he suffered was serious harm.
I am satisfied that the applicant did not flee Fiji fearing serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
I am required to consider whether the applicant will suffer serious harm for a refugee reason on his return to Fiji within a reasonably foreseeable future.
The applicant claims that if he was to return to Fiji he will again be attacked by corrupt army officials and local police. he may be bashed or his son may be bashed and killed. The applicant made no claims at the Tribunal hearing that he was attacked by the police or the army. The independent evidence before me does not suggest that the army or the police attack and harm Indo-Fijians for their ethnicity and/or religion. Further the applicant’s son is a police officer. I do not accept that there is a real chance the applicant will again be attacked by corrupt army officials, village chiefs, criminals or local police, within a reasonably foreseeable future on his return to Fiji.
I accept that land tenure remained highly sensitive and politicized. According to the US State Department Human Rights Report 2021 Fiji, ethnic Fijians communally held approximately 87 percent of all land, the government held 4 percent, and the remainder was freehold land held by private individuals or companies. The applicant owned a house that he gave to his ex-wife and I note that it is where his son lives now.
The law prohibits employment discrimination based on ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age, disability, HIV/AIDS status, social class, marital status (including living in a relationship in the nature of a marriage), employment status, family status, opinion, religion, or belief. The applicant was able to work in Fiji and he also owned a business. His son is a government employee, he is a policeman.
The most recent elections were orderly and free from violence. In presenting its conclusions[5], the Australian- and Indonesian-led Multinational Observer Group stated: “Conditions supported Fijians exercising their right to vote freely. The 2018 process was transparent and credible overall, and the outcome broadly represented the will of Fijian voters.”
[5] US State Department Human Rights Report Fiji 2021
The applicant fears having a quarrel or being harmed by persons from another religion or caste. The independent evidence indicates that The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race. DFAT[6] reports that since 2009, the Government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. Through mechanisms such as the 2013 Constitution, the Government has reformed or removed racial aspects of the political system, including by abolishing separate ethnic-based voter rolls. Ministers in the current FijiFirst Government are from both major ethnic communities.
[6] DFAT Country Report Fiji 20 May 2022
According to an SBS Article published on 18 January 2017[7] a $2 note issued by the Fijian government features a turban wearing Sikh man, acknowledging the contribution made by the Sikh community in Fiji, for over a century.
[7]
DFAT[8] stated that there have been instances of tensions between indigenous Fijians and Indo-Fijians and it is not clear whether these are motivated by religion, race or both. A series of vandalism and robbery events at Hindu temples was recorded in 2018 and received significant media attention. According to media reports, police took the incidents seriously and political figures condemned the attacks. The motive for the crimes is not clear – it may have been opportunistic, or factionally or racially motivated. The Government and authorities respect and protect Hindus’ freedoms of religion, belief and worship. Hindu religious and representative organisations operate freely. Some incidents of theft and violence have affected Hindu places of worship, but these are not common occurrences and the motives behind them are not always clear. When incidents do occur, police respond appropriately.
[8] DFAT Country Report FIJI 20 May 2022
The applicant’s Pastor stated that there is a lot of discrimination against Indo-Fijians in Fiji. DFAT states that Indo-Fijians face a low level of societal discrimination and there is no evidence of official discrimination against Hindus based on their religion. I place little weight on the Pastor’s evidence as I prefer DFAT’s report. It is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Fiji. It also takes into account relevant information from government and non-government sources.
Therefore, I am satisfied that there is not a real chance that the applicant will suffer serious harm for being a Sikh, within a reasonably foreseeable future, on his return to Fiji.
I accept that the applicant wishes to remain in Australia with his mother, who requires his assistance and he wishes to remain in his current employment in Australia. I put to the applicant that the Fijian authorities are not going to prevent him working. As the independent evidence does not suggest Indo-Fijians suffer discrimination, I am not satisfied that the Fijian authorities will prevent the applicant from working. The applicant’s son is a policeman and a government employee. Whilst the applicant’s son presently lives in his former home, it is old and needs repairs, nevertheless the applicant does not suggest that the house is non-liveable. The applicant has demonstrated that he was able to own a home in Fiji and earn a living.
The applicant has become a Christian in Australia. He did not dispute my comment that he will be able to practice Christianity, in Fiji. I find that the applicant will not suffer serious harm for practising his religion, within a reasonably foreseeable future, in Fiji.
I have considered the applicant’s claims singularly and cumulatively. I am not satisfied that there is a real chance the applicant will suffer serious harm for a refugee reason in Fiji, if the applicant returns to Fiji. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I must also consider whether there is a real risk the applicant will suffer significant harm on his return to Fiji.
The applicant is an ethno-Fijian Sikh Indian of the Christian faith.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.
There is no evidence that there is a widespread condition of violence in Fiji and I do not accept that there is a real risk of harm from non-state actors.
There is no death penalty in Fiji.
The applicant was employed in Fiji and also had his own business. He is employed in Australia with a former employer from Fiji. The country information indicates, and I find, that any failure to provide the applicant with employment is due to the Fijian economy rather than any intentional act or omission and is faced by the population generally and not face by the applicant only. The applicant had his own home in Fiji, it is the home which he gave to his ex-wife and his son now lived in that home. The applicant is resourceful. I am satisfied that the applicant will make appropriate arrangements for his accommodation, if he is required to return to Fiji.
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. 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. 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.
DFAT[9] assesses that policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. Police protection is available but not consistently. Whilst the applicant does not agree, I am satisfied that were the applicant to be attacked or harmed, Fiji has an effective police force and an impartial judicial system. The police Ethical Standards Unit[10] is responsible for investigating complaints of police misconduct. Fiji Human Rights and Anti-Discrimination Commission (FHRADC) can investigate complaints about police.
[9] DFAT Country Information Report Fiji 20 May 2022
[10] US State Department Fiji 2020 Human Rights Report
I am not satisfied that any difficulty the applicant may be subject to, on his return to Fiji, such as employment, would amount to significant harm.
As stated above, I reject the applicant’s claim that he suffered persecution in Fiji. Therefore, I am not satisfied that there is a real risk that the applicant would suffer significant harm, within a reasonably foreseeable future, as an ethnic Christian Sikh Indo-Fijian, if he returns to Fiji.
Having considered all of the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.
CONCLUSIONS
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
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.
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 5170

9 December 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction