1708296 (Refugee)

1708296 (Refugee) [2022] AATA 4577 (12 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708296
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Christine Cody
DATE:12 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 November 2022 at 4:01pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to the government – race – indigenous Fijian – fear of detention – advocating for indigenous Fijian rights – Land Bank system – employment – access to health services – working unlawfully in Australia – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424AA, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The relevant law is set out at Annexure A.
The applicants who claim to be citizens of Fiji, applied for the visas on 7 February 2017. The delegate refused to grant the visas on 20 March 2017. The first named applicant (hereafter referred to as “the applicant”) was born in [year] in [a named location in] [a named province], Fiji, and he is married to the second named applicant (“the second applicant”) who was born in [year] in [a specified location in] Fiji.
Department file[1]
The applicants
[1] There is no certificate of non-disclosure on the Departmental file
According to their protection visa application forms, the applicants’ background includes:
·     The applicants married in Fiji in [year]. They are indigenous Fijians (iTaukei) and are Christians.
·     They can speak, read and write in the Fijian and English languages.
·     The applicant completed his education (finishing [college]) in [year]. Thereafter, he worked in Fiji as [an occupation 1] for numerous employers.
·     The second applicant completed her education (finishing [college]) in [year] and thereafter worked as [an occupation 2] for a company from [specified year] to December 2014.
·     The applicants have [number] children, [names and years of birth]. The children are in Fiji, and they are in contact with their children. The applicants have siblings in Fiji, and they have relatives in Australia who are originally from Fiji.
·     The second applicant’s passport was issued [in] 2015 and the applicant’s passport was issued [later in] 2015.
·     The applicants visited the Australian High Commission [in] July 2015 to seek visitor visas to come to Australia. On 7 August 2015 they were granted visitor visas[2]. They left Fiji legally using their passports [in] April 2016, and arrived in Australia on [the following day] and went to [Town 1]. They became unlawful non-citizens three months later [in] July 2016. They remained in Australia and moved to [Town 2] NSW in September 2016. [In] February 2017 the second applicant was located by the Department unlawfully in the community and the applicants then lodged their protection visa applications the next day[3]. They were granted bridging visas to continue living in the community.
Claims made by the applicant
[2] Although the application forms stated that the visitor visas were valid for 12 months, the visas were granted for single entry with maximum 3 month’s stay, with entry in Australia to occur within 12 months. It was confirmed at hearing that they had 3-month visitor visas and then became unlawfully present.
[3] This was put to the applicants pursuant to s.424AA of the Act and they did not disagree with this.
According to his protection visa application form, the applicant claimed:
·He left Fiji “to have a break” from the problems he was facing (these were unspecified). He was getting very stressed out and short tempered and his children encouraged him to leave Fiji so he could have a break.
·If he returns to Fiji, he fears he will be taken by the military and the police. He is worried that he and his wife will be punished because he has been vocal in the community and told people not to follow the Government. He states that staying with his [Relative A, named] in Australia makes the situation worse for him.
·He was harmed in Fiji: he was stressed and experienced psychological problems. He couldn’t sleep well in Fiji as he was worried about his family’s land being given to the Government. He claims that “his rights” as an indigenous Fijian have been compromised (again unspecified what in particular rights he means).
·He didn’t seek any help for his problems in Fiji from the authorities as the government would penalise him if he did.
·He didn’t move to another part of Fiji as Fiji is a small country and everyone is publicly known to each other and no one else will help him.
·
He can’t return to Fiji as he has been under stress and has experienced psychological harm because the government has pressured his family to become part of the Land Bank system. The government is trying to force them to give the land and has been making threatening statements. He has been against this, and the government has tried to take his land by force, made threatening statements to him and made him suffer. As he is the head of the family, he has to make the difficult decisions for all of his family in Fiji.
The applicant stated in his visa application form that he will produce two support letters, but he did not do so.
Claims made by the second applicant
The second applicant states in her protection visa application form that she is not making her own claims for protection.
Supporting documents
The applicants provided copies of their passports, marriage certificate, and birth certificates to the Department.
The delegate’s decision record
In the delegate’s decision record, the delegate stated:
·     Country information relating to the Land Bank system notes that land tenure is a sensitive and politicised issue in Fiji. Ethnic Fijians hold approximately 87% of all land, the government holds 4% and the remainder is freehold land held by private individuals or companies. The delegate noted that there was no country information indicating that individuals are being punished in any way by the government in relation to the Land Bank.
·     The delegate was not satisfied that available information suggests that the applicant would face a real chance of harm amounting to persecution were he to return to Fiji in the reasonably foreseeable future.
·     Noting that the second applicant claimed as a member of the applicant’s family unit, but that the delegate did not accept that the applicant was a refugee or entitled to complementary protection, then the second applicant’s application was also unsuccessful.
Offshore visa application Departmental file
The Tribunal had access to the offshore visa file containing the application for the applicant’s visa to Australia; the claims made in that file were that the applicant just wanted to visit temporarily, which is the same claim made by the applicant at the Tribunal’s hearing.
The Tribunal
The applicants lodged an application for review together with a copy of the delegate’s notification that the protection visa applications lodged by the applicants on 7 February 2017 had been refused. In the Tribunal’s acknowledgement letter the applicants were requested to provide any material or written arguments for consideration as soon as possible. Further, on 27 July 2022 the applicants were advised that their file was being prepared for allocation to a Tribunal member which may result in a hearing, and any additional relevant evidence should be provided as soon as possible.
On 10 October 2022 the applicants were invited pursuant to s.425 of the Act to give evidence and present arguments at a hearing on 25 October 2022, and to provide any documents to support their case by 18 October 2022.
The applicants responded to the hearing invitation, stating that they would both give evidence, and attaching documents relating to the second applicant’s medical conditions and medications, as well as a character reference from [a named church leader] and a Fijian Community leader in Sydney, [named].
The applicants appeared before the Tribunal on 25 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicants produced their passports, as well as further medical documents relating to the second applicant[4] and their passports and copies of documents already produced. The Response to Hearing Invitation indicated that the second applicant may have difficulty sitting for long periods; the Tribunal put to the applicants that they should ask for breaks whenever they wanted; the second applicant did not indicate any discomfort during the hearing.
[4] The Tribunal noted at hearing that the first page of one 3 page document was missing; it was stated that this was probably at home. The applicants did not thereafter provide the Tribunal with page 1 of the document.
Some of the evidence given at hearing is as follows:
·The applicant said that the applicants own a home that they purchased in Suva more than 10 years ago. They have [a son] in Fiji who works in [industry 1] but he stopped in April/May 2022 as there is no more [industry 1 work] in Fiji. He is supporting himself by working part time in [business 1s]. He is living in the applicants’ family home with his wife and children. [Another child] travelled here to Australia 3 years ago as a seasonal worker, [having a family] back in Fiji and sends them money. Their [other children] are married and live in Fiji. The second applicant confirmed that the son in Fiji is working part time in [business 1s] and living in their home, and that [another child] is here, and the [other children] reside in Fiji with their [families].
·The applicants said that there is not enough employment in Fiji now. The applicant said that when they arrived in Australia [in] April 2016 they stayed with a [Relative A]. He started to [work] in [Town 1], one month after their arrival. The applicant currently works as a labourer in [industry 1], on and off. They live with the applicants’ [Relative B] who supports them financially.
·The applicants said that the second applicant had worked as [an occupation 2] in Fiji.
·The problems they faced in Fiji: The Tribunal asked both applicants whether anything bad happened in Fiji and they both claimed that the only bad thing that had occurred was to do with employment. They both said that there were no other problems in Fiji.
·The reason why the applicants wanted to come to Australia: The applicant told the Tribunal that he had lost his government work in Fiji and the reason why he came to Australia was to find work; there was no other reason why he wanted to come to Australia. Although the second applicant was initially evasive as to why they came to Australia, she then admitted that they came to Australia because life in Fiji was hard and there were no jobs available for anyone. She claimed that they both lost their jobs in Fiji because of the retirement age.
·The reason why the applicants do not want to return home: The applicants said that they do not want to return home due to lack of jobs in Fiji and difficulties in accessing healthcare for the second applicant. There is no other reason.
·The visa application forms: When the Tribunal asked the second applicant about the completion of the protection visa application forms, she claimed that she did not read the contents, although she agree that she signed it. She agreed that she had stated that she was making no claims of her own.
At the end of the hearing the Tribunal put to them that it does have concerns with the credibility of their claims. The applicants said that they do not want to go back to Fiji and asked for compassion; the Tribunal said that it has to apply the law. The Tribunal put to the applicants information pursuant to s.424AA of the Act towards the end of the hearing and noted that an additional consequence, if the Tribunal relied upon the information, was that they would not be successful applicants on the basis of their membership of each other’s family unit.
Further relevant evidence and information is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicants meet the definition of refugee or are entitled to complementary protection and whether or not they are members of the same family unit. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
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.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the applicants, including pursuant to s.424A of the Act, concerns and inconsistencies which undermined their credibility and their claims about their circumstances back in Fiji.
Firstly, the Tribunal had concerns as to the applicant’s changing evidence concerning his claims in his protection visa application form: When the Tribunal asked if his claims in his protection visa application form were true and correct, the applicant said that someone else filled the form for them and they don’t know what is in the forms. The person gave them the forms to submit. The Tribunal put to him that he can read and speak English and he agreed. He said that he could read it but some of the form was not complete. The Tribunal asked whether the information that was complete was all true and correct, and he responded that he cannot recall what was in it. The Tribunal asked whether at the time he read it, was it true and correct and he said yes.
At hearing, despite being given the opportunity to tell the Tribunal what had occurred in Fiji and what were his concerns about returning, the applicant did not mention or maintain the claims in his protection visa application form.
The applicant told the Tribunal that he had no fear of anything when he was in Fiji, and his only concern (as noted above) when he was in Fiji had been with the employment situation. His only fear upon return related to the employment situation and the health of the second applicant.
The Tribunal put to the applicant that his protection visa application form contained concerns about the Land Bank system. In response the applicant said that he heard “last year” [2021] that there could be problems “now” due to the Land Bank system because previously landowners had the authority to lease out their land, but now it looks like the government is taking over the land to lease it out. He confirmed to the Tribunal that he has held this concern only since last year. The Tribunal put to him that if he had held such a concern, he would have told the Tribunal about it when given opportunities to tell the Tribunal about his worries or concerns in Fiji, but he had made no mention of the Land Bank system. He responded, “my apologies”. The Tribunal put to him that it would expect that if this was something that caused him concern, he would have told the Tribunal this. He said it is a problem for landowners. The Tribunal repeated that if it was a concern for him, it would expect that he would have raised it when asked. The applicant agreed, and then said sorry. The Tribunal does not find this explanation to be persuasive. It considers that if the applicant had a genuine concern or worry that he would be affected by the Land Bank system, he would have told the Tribunal this, and would not have only agreed it was a concern after the Tribunal told him it was in his protection visa application form. Further, as put to the applicant, his assertion to the Tribunal that he only started to have concerns about the Land Bank system in 2021, undermines his claim that this was a concern at the time of lodgement of his protection visa application form (5 years ago in 2017). The Tribunal considers that his evidence undermines his credibility and his claim to have had a concern about Land Bank system at any time.
The Tribunal asked him if anything else that happened in Fiji that he hasn’t told the Tribunal about, and he said no. The Tribunal put to him that in his application form he made very different claims. In response he said he has “clean forgot” what is written in his application form. The Tribunal read out to him from the claims section of his protection visa application form, including that he came to Australia because he was getting stressed out and very short tempered such that his children encouraged him to leave Fiji; that he would be taken by the military and police and he feared that he and his wife would be punished because he was being vocal in the community and telling people not to follow the government, and as he has stayed with his [Relative A] here, that makes the situation worse; he couldn’t sleep because he was concerned that the government will take his family land; his rights as an indigenous person have been compromised; the government has been pressuring them to be part of the Land Bank system and he has been against it but the government has been trying to force them and have been making threatening statements, and as the family member to make decisions, he has a difficult task.
The Tribunal put to him that he had told the Tribunal something completely different as to past events in Fiji, namely that he had lost his job at [Agency 1] which is why he came to Australia, and that this was his only concern in Fiji. The Tribunal noted that he had said that someone else had written his protection visa application for him, and the evidence indicates that the contents of his protection visa application were not true. In response the applicant said that they didn’t have a chance to read the protection visa application, the person told us what was written in there and it was then put into an envelope and given to them. He said he had no further comment.

The Tribunal considers that the applicant’s evidence about the claims made in his protection visa application form undermines the credibility of those claims. The Tribunal considers that if he had any of the concerns set out in his form, he would have told the Tribunal about these concerns when asked; instead, his only concern was about employment (and the second applicant’s health).
The Tribunal put to both applicants pursuant to s.424AA of the Act the concerns about the applicant’s omission to mention at hearing the claims from his protection visa application. The Tribunal put to the applicants that this indicates that those claims were not true, and that he was prepared to make false claims to obtain a protection visa, and that he is not a witness of truth. Neither applicant sought to comment or respond to these concerns. The Tribunal considers that the omission to mention the claims and the lack of explanation for the omission from both applicants relating to the Land Bank system, the applicant’s psychological and sleep issues, the military, the [Relative A], and being vocal in the community leading to being targeted, undermines those claims and the credibility of the applicant who initially made those claims in his protection visa application form.
Secondly, the Tribunal had concerns with the applicants’ truthfulness as to their financial situation. For example:
·     The applicant said that for the last 7 years before coming to Australia he had worked for [Agency 1] as [an occupation 1] and had then lost his job because in 2016 the government took all the work that was carried out by [Agency 1] and subcontracted it out to private firms; whereas the second applicant claimed that the applicant had worked for a [Country 1] company as [an occupation 1] for the last 7 years before coming to Australia.
·     The applicant told the Tribunal that they came to Australia with $1000 but the second applicant said they came to Australia with $300.
·     The applicant claimed that after arriving in Australia the second applicant worked for one month as [an occupation 2] and then she got sick, whereas the second applicant said that she worked 3 months as a carer and then got sick.
The Tribunal was concerned that these sorts of inconsistencies indicated that they were not reliable witnesses about financial matters and their history (in relation to minor matters and those that are more significant). The Tribunal put to the applicants the different versions of evidence about their financial situation pursuant to s.42AA of the Act.
In response, the second applicant changed her evidence and said that after he worked for [Agency 1] he then worked for a [Country 1] company. This, however, was inconsistent with what the applicant had told the Tribunal about his employment; he had lost his job with [Agency 1] before coming to Australia, and he had made no claim to the Tribunal to have worked for a [Country 1] company after working for [Agency 1].
The applicant’s response was that they didn’t quite understand the protection visa application forms; the Tribunal said that it was referring to the differences in their evidence to the Tribunal. The Tribunal then put to the applicant that, in any event, his listed employment in the protection visa application form fails to mention that he worked 7 years before coming to Australia for the Fijian government ([Agency 1]). The applicant responded that he doesn’t know why his form doesn’t mention this. He added that it is their desire to stay in Australia and look after themselves here. He later asked whether they could be excused or forgiven for the differences in their evidence about the places of work, as he worked in so many places and the second applicant probably can’t keep track of the last place where he worked.
The Tribunal does not find their explanations persuasive. It does not accept that the second applicant would not recall where her husband had worked for the 7 years before coming to Australia, especially if, as it is claimed by both, that loss of their employment was the reason why they came to Australia. The Tribunal considers that their inconsistent evidence indicates that they have been untruthful about their financial situation which undermines their credibility.
Thirdly, the Tribunal had concerns with the applicants’ inconsistent and changing evidence as to why they wanted to come to Australia.
The Tribunal was concerned that the applicants gave inconsistent and changing evidence as to why they wanted to come to Australia. While both applicants claimed that they came to Australia because of the poor working conditions in Fiji, when the Tribunal asked them about their intentions in coming to Australia (in the context of their visitor visa applications), they both (initially) gave evidence that they intended to just visit here and then return to Fiji (indicating an intention to reside again in Fiji).
In this regard, the applicant said that he wanted to come here to work and he then intended to return to Fiji (and thus he did not tell untruths in making the offshore application for a visitor visa). The second applicant firstly denied that they had the intention to stay in Australia (and thus she did not tell untruths in making the offshore application for a visitor visa); she then changed her evidence and said that they both always intended that they would move to Australia.
The Tribunal noted that this evidence indicated that they had both made visitor visa applications stating that they were intending to only visit and then return to Fiji, although they actually intended to remain in Australia. This indicated that they were willing to tell untruths to the Department to obtain a visa, and this could indicate that they were prepared to tell untruths to obtain a protection visa. This was put to the applicants pursuant to s.424AA of the Act.
In response the second applicant said that the main problem is that they didn’t fill out the application form, someone else did it and they did not read what was written in it, they just signed it and submitted it and secondly if they lied to immigration they would not have been here and they are surprised that their statements are not believed and it is probably due to differences in the application forms. The Tribunal noted the inconsistent oral evidence at the hearing about their intentions in coming to Australia; the second applicant said that she accepts this. The applicant was silent, and did not offer a comment.
The applicant did not tell the Tribunal that the second applicant’s change in evidence (when she said they did intend to move to Australia) was wrong. The evidence indicates that the applicants did lodge visitor visa applications to come to Australia while they had the intention not to visit, but to move here. The Tribunal considers that this indicates that they have been prepared to tell untruths in order to obtain the outcome they want, and that this also undermines their credibility.
Fourthly, the Tribunal had concerns that the applicants only claimed protection after it had been discovered that the second applicant was working unlawfully in Australia and was unlawfully present.
The Tribunal noted that the applicants had the opportunity to claim asylum in Australia soon after their arrival. However, their visitor visas expired and they became unlawfully present and remained here unlawfully. They only claimed protection after the second applicant was caught by the Department working illegally. She explained to the Tribunal that the Department had been looking for her [Relative C] who was working illegally at a [business], and as the second applicant was working with her [Relative C], they had both been caught working unlawfully. The Tribunal put to both applicants pursuant to s.424AA of the Act that this indicated that they only claimed asylum when the second applicant had been caught illegally working and both were discovered to be unlawfully present. The Tribunal said that this may indicate that they only lodged protection visa applications to prolong their time in Australia, and not for genuine reasons of fearing harm. The applicants said that they did not wish to comment or respond about this.
The Tribunal noted that the protection visa applications were signed by the applicants on 30 December 2016; although they were not lodged with the Department until after they knew it had been discovered that they were unlawfully present in the community. The applicants did not suggest to the Tribunal that they had any intention of claiming asylum before they were discovered to be unlawfully present in Australia in February 2017; and the applications were only lodged in February 2017. The Tribunal does not give any weight to the dates written on the forms as indicating that they intended to claim asylum before they did do so.
The applicants did not disagree with the suggestion that they only lodged protection visa applications to prolong their stay in Australia, not for genuine reasons of fearing harm, and that they only did so once they had been discovered unlawfully present. The Tribunal considers that if the applicants had a genuine fear of harm in Fiji, they would have had plenty of opportunity to claim protection before they were caught unlawfully present in Australia.
The Tribunal put to the applicants that they could have lodged protection visa application forms referring to concerns about the economy/ financial situation and about the second applicant’s health, but they did not do so, they just stayed here unlawfully present, working. The Tribunal also put to the applicants that their delay of about 9 months in leaving Fiji once the visa was granted suggested that they also did not have a genuine fear of harm. They did not deny this (although they indicated that they were waiting to receive funds). Even if the Tribunal accepts that they were waiting to receive funds, there is nothing in their oral evidence to the Tribunal to suggest that they had any concerns (other than financial) while they remained in Fiji after their visas to Australia had been granted. The Tribunal considers that these matters undermine that they had any fear of harm, and their credibility.
Other matters
The Tribunal accepts that the applicants could have been nervous when giving their evidence; it does not however accept that this can explain the difficulties with their evidence.
The Tribunal noted at hearing that the support letters provided do not refer to problems in Fiji at all; it put to the applicants that these letters do not support that the applicants face a real chance of serious harm or a real risk of significant harm. The applicants did not disagree. The Tribunal considers that although the letters say that the applicants are nice people who have made contributions in Australia, they do not contain credible evidence to support the applicants’’ claims.
Credibility summary for the applicants
Considered cumulatively, the concerns the Tribunal holds about the applicants’ credibility as discussed above lead the Tribunal to conclude that the applicants have not been reliable witnesses when giving details of their finances and the circumstances awaiting them in Fiji.
Findings on the applicants’ claims
On the basis of the adverse credibility finding, and specifically that the applicant himself did not recall the claims in his protection visa application form, the Tribunal does not accept the applicant’s claims in his protection visa application form are true. The Tribunal does not accept that he left Fiji to take a break because he was getting stressed out and short-tempered; that he fears he will be taken by the military and the police (nor does it accept that there is any reason for the military or the police to take the applicant); that he has been vocal in the community and told people not to follow the Government (leading to fears that he and his wife will be punished); that staying with his [Relative A] in Australia makes the situation worse for him; that he couldn’t sleep well in Fiji and worried about the government taking his land; that his rights as an indigenous Fijian had been compromised and the government had been making threatening statements to him and made him suffer and want his land.
While the Tribunal is prepared to accept that the applicants lost their jobs in Fiji which precipitated them moving to Australia, and that they have some concerns about their financial situation in Fiji and the second applicant’s health situation, it is not satisfied that they have genuine concerns that either or both of them face a real chance of serious harm or a real risk of significant harm in Fiji for these reasons or any reasons.
The financial situation and the economy
The DFAT report states that: the pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. The Tribunal acknowledges that both applicants said that they waited to receive the applicant’s FNPF funds which they received while they were in Fiji. The applicant said that the funds were approved in February 2016 and they used these funds to support themselves and come to Australia. The Tribunal is prepared to accept that they withdrew the applicant’s pension money.
The Tribunal notes that the applicant is working in Australia and that the second applicant has also been working in Australia despite her health problems. The Tribunal put to the applicants that the DFAT report discusses the economy and it noted that most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries, and that iTaukei generally have large kinship networks with extended family often providing support when a family member is in need.
The Tribunal noted that the applicants were currently relying upon family support (namely, the [Relative B]) while they are in Australia, and he could continue to assist them if they go back to Fiji. Further, it said that it would think that they would be able to get some work, noting they are resourceful (having managed to move to a new country and obtain work over here even while unlawfully present) and they also have work experience in Australia. The Tribunal noted that they own their own house, they have a son in Fiji who has been working and a [child] in Australia who sends money back to Fiji (and the DFAT report states that remittances are an important part of the Fijian economy). The Tribunal accepted that it may not be as easy for the applicants’ and their relatives to earn money in Fiji, but it put to them that it did not appear that they would face a real chance of serious harm such as significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist, or a denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, or that they face a real risk of the level of financial difficulty amounting to significant harm.
The applicant said that they would face such hardship in Fiji. The Tribunal does not accept that the country information shows that there are no jobs and no ability for the applicants’ to earn money in Fiji, even while it accepts that the situation may not be easy for them and while accepting that there are medical expenses for the second applicant. They own their own home in Suva, they have adult children, and family working overseas who are able to contribute to their expenses if needed. The Tribunal does not accept that the applicants face a real chance of serious harm or a real risk of significant harm for financial reasons in Fiji.
The second applicant’s medical issues
The Tribunal noted that both applicants said that the second applicant’s medical conditions were a reason why they did not want to go back to Fiji. The Tribunal has considered their evidence, and the documents relating to the second applicant’s medical conditions and the medications she has taken, provided both before the hearing and at the hearing.
Both applicants claimed that the second applicant only had diabetes in Fiji, she did not know of any of her other medical issues, which were described in the written material as “chronic”, and/or “active for many years”. The Tribunal had some concerns with the claims made by both applicants that they were unaware of the applicant wife’s many medical problems while they were still in Fiji. For example, when it put to the second applicant that the medical report indicated that her [condition 1] had been active for “many years”, she disagreed with this and said that she only found out about her [condition 1] last year. The Tribunal put to her that it was difficult to understand that the doctor could say that she had active [condition 1] for many years if she did not know that. She said, “I don’t know anything about that”.
The Tribunal notes that the reports indicate that the second applicant has had, “active, for many years”, [condition 1 and other specified conditions]. The reports did not, however, specify how many years, and so the Tribunal decided to give the applicants the benefit of the doubt and accept, for the purposes of this decision, that the applicants were only aware of the second applicant’s diabetes in Fiji, but that they became aware of her other medical conditions in Australia. The Tribunal accepts that she has these medical conditions, and it accepts the more recent additional conditions referred to in the medical report, namely that she also has had [named problems] since 2021, [other problems] since 2022.
The applicants both said that the second applicant received treatment and saw medical professionals in Fiji for her diabetes. They both said that medications were not available in hospitals in Fiji, but they admitted that medications could be purchased in pharmacies.
Both applicants said that they were worried about her health if she went back to Fiji, noting that she has to see doctors/specialists/and take medication. The second applicant said that in Fiji, the care is not as good as it is in Australia. The Tribunal accepts that she has to take a number of medications as set out in the reports and that she is currently receiving financial assistance for the purchase of the medications, and that she has a number of medical conditions for which she has to have medical care. The second applicant has previously received healthcare and medication in Fiji. The Tribunal discussed the DFAT report relating to health with both applicants. It is noted that:
2.11 Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.
2.12 Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
The Tribunal put to the applicants that it did not appear that the second applicant would not be able to access healthcare, medication or doctors in Fiji. The second applicant responded that things are not the same in Fiji now, everything has become worse, including healthcare; the applicant said that the children tell them that the problem in Fiji now is that the cost of living is skyrocketing in Fiji and that it is difficult to get a well-paid job.

The Tribunal put to the applicants that just because a person considers they will receive better healthcare in Australia does not mean that they are a refugee or entitled to complementary protection. The Tribunal noted that in order to satisfy the protection criteria as a refugee, the person must have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion, and it did not appear that this applied to the second applicant in relation to her medical issues. There was no suggestion that the second applicant would face being denied access to treatment or the healthcare system for any of the stated reasons. Concerning complementary protection, the Tribunal must consider whether the second applicant faces a real risk of significant harm which is exhaustively defined as arbitrary deprivation of life, the death penalty, or torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. There was no suggestion that she faces the death penalty nor arbitrary deprivation of life, nor that she would be denied access to relevant health services or treatment by any authority, organisation, person or group, with the intention of causing her to suffer significant harm in the form of torture, cruel, inhuman or degrading treatment or punishment. There was no disagreement from the applicants.
While accepting that the applicants both have concerns about the second applicant’s health, the Tribunal is not satisfied that she will not be able to access healthcare and medications (with the assistance of her family members and herself and/or her husband working), and while accepting that the standard of healthcare may not be the same standard as is in Australia, this does not mean that the second applicant faces a real chance of serious harm for one of the five reasons referred to above nor that she faces a real risk of significant harm as defined in the Act. The Tribunal is not satisfied that the second applicant faces a real chance of serious harm nor a real risk of significant harm for those reasons.
The Tribunal has considered each applicant’s claims individually and on a cumulative basis, having regard to the findings above and the relevant country information, and other than those claims accepted above, the Tribunal rejects all the various claims made and finds that each of them do not have a well-founded fear of persecution as a refugee for any of the reasons put forward by them or on their behalf.
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
The Tribunal does not accept that the applicants have experienced any adverse interest or harm in Fiji other than that they lost their jobs which precipitated their decision to move to Australia for work. The Tribunal does not accept that they lost their jobs for any reason other than unfortunate circumstances. The Tribunal does not accept that they face a real risk of financial difficulties or difficulties in accessing medication/ healthcare/ doctors amounting to significant harm (as discussed in the Annexure) in Fiji. It does not accept that they face a real risk of being significantly harmed by anyone nor that they will not be able to live in their home, jointly contribute to their household and support each other, and obtain some work, and receive support from their family network. Having considered their claims and circumstances on a cumulative basis it is not satisfied that they face a real risk of significant harm for the reasons claimed or for any reason.
On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, in this case, Fiji there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Christine Cody
Member

annexure a - Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 below.
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)    that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)    that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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 4577

12 November 2022

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