1713595 (Refugee)

1713595 (Refugee) [2023] AATA 1199 (17 February 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tui Savu
CASE NUMBER:  1713595
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rodger Shanahan
DATE OF DECISION:  17 February 2023
DATE CORRIGENDUM
SIGNED:5 April 2023
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

1. The applicant given name ‘[name]’ should be replaced as '[name]'.
Rodger Shanahan
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tui Savu
CASE NUMBER:  1713595
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rodger Shanahan
DATE:17 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 February 2023 at 4:40pm
CATCHWORDS
REFUGEE – protection visa – Fiji – involved in takeover of Labasa Military Barracks in 2000 – left the army without adhering to proper procedures – court-martialled for mutiny – credibility issues – delay in protection application – re-enlisted post discharge – subsequent service overseas – discrepancy in applicant’s rank – medical conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 7 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 23 June 2016.
The applicant appeared before the Tribunal on 13 and 18 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [name deleted]. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Claims and evidence
Protection visa application
The applicant made the following claims in his application:
I fear I could be arrested and harmed by the military authorities in Fiji for desertion as I had left the army without adhering to proper procedures. I had done this out of fear as I had been involved in the takeover of the Labasa Military Barracks at the height of the political crisis in Fiji in 2000. My involvement was purely out of obedience to military orders we were issued with by our superiors at that time. As a soldier we are bound to follow orders and are not allowed to question the legality or otherwise of the orders issued by our superiors. We later found out that the crisis itself was initiated by no other than the Commander of the Military Frank Bainimarama. This was revealed by a Board of Inquiry Report commissioned by the military to inquire into the 2000 coup.
I could be harmed and fear the extreme scenario of being killed. I was beaten up badly by the military hit squad along with other of my colleagues who were involved in the takeover of the military barracks in Labase. I could not seek help from anyone including the police who were fully under the control of the military.
AAT Hearing
After the opening preamble the applicant stated that if he was asked any questions by the Tribunal he would not be answering them but would be referring them to his lawyer. He was advised that the hearing was between him and the Tribunal not between the Tribunal and his advisor so if he refused to answer questions the Tribunal was likely to make an adverse finding against him. The adviser had previously requested to speak and was told to wait until after the preamble, and he was given the opportunity at this time.
The adviser then said that he had received the response that morning that their request for adjournment had been received and rejected based on the short notice of it. The first request had been denied on 10 January but the adjournment was requested in order to obtain information requested by the Tribunal. He stated that because of the late notice of his request he took it upon himself to notify the witness not to attend today because he was a night shift worker and the adviser had not been able to properly discharge his responsibilities in terms of providing the proper advice to his client. He said that he would be seeking an adjournment which he had done.
The new information he was going to provide he was not legally obliged to tell the Tribunal because when the new information was brought to his attention he had to verify that the information and source documents were correct. He had filed a FoI and was told it could take 2-4 weeks and he told his client that he was uncomfortable with proceeding with the matter until he could source the primary documents. He was only given a copy of the decision and not the application and he was told the application belonged to the Department and he would need to access FoI. He did not have a copy of the application and the applicant said he didn’t have a copy.
It was put to him that the applicant had presumably told the adviser what his claims were and they were pretty short – he claimed that he had to verify these claims against the source documents. It was put to him that the 3-6 month adjournment he requested had already been declined and then he requested another adjournment very late in the piece. Simply saying there was new information without revealing what the nature of it may be did not support his claim and without that additional information the Tribunal would not support a late claim for adjournment based on such vague information.
It was also not his position to tell the applicant not to turn up to the hearing. He had been invited to attend the hearing. The adviser was told that the applicant was present and able to advance his claim and the Tribunal intended to proceed on that basis. A short adjournment was taken while the member sought some legal advice. After the break they were advised the hearing would continue – if there was new information they chose not to present that was their prerogative but the Tribunal had given them the opportunity to present his claims and he could avail himself of that or not. The applicant said that he would not be giving any information and would be leaving everything to his lawyer. He was advised the lawyer couldn’t present his claim, he had to do it himself. It was not a court room where the adviser could speak on his behalf. If he chose not to p[resent his evidence then the Tribunal may simply ask questions of him based on his written claim.
He said that his lawyer was waiting for more documents to arrive and his claim was incomplete at this stage. Asked what documents they were, he said the lawyer knew where the documents were coming from and it was best for the Tribunal to communicate with him. He was told the Tribunal asked the applicant. He said that it was something about the court-martial that had been requested. It was put to him that the Tribunal had said it didn’t require the court martial documents as it could rely on other material available to it.
The adviser interjected that the document that he sought was the applicant’s protection visa application. He was told that the applicant could make his own claim – it was assumed that the applicant had told the adviser about his application. The adviser said that the human memory was fallible and a lawyer would always check the source document. He was advised that he would be given a copy of the application and an additional hearing could be scheduled but the applicant was advised appropriately and the claim he made today should reflect the claim that he had made previously.
The adviser said that he had advised the applicant not to answer any questions until the adviser had seen the source document (application). It was put to him that the adviser was not advising the applicant about his claim, the applicant was simply making his claim. If he chose not to make a claim, that would not be advisable as he had been given the opportunity to do so.
The applicant was advised that the Tribunal was obliged to give him an opportunity to present his claim and it was not the adviser’s job to make his claim for him. He could choose not to make a claim but the Tribunal may still question him about the written claim he had already submitted. He said he paid his lawyer to speak on his behalf and had left it to him. He was told that this was not how it worked and he was asked what serious harm he feared if he returned to Fiji. He said that he had left everything to his lawyer to represent him.
He was asked if he knew everything in his written application and was asked if it was true and correct. He said it was all correct. He was asked if he was arrested because he took part in a mutiny in Labase Barracks in 2000 – the adviser then tried to interject and accused the Tribunal of badgering the applicant. The adviser was told that he needed to allow the applicant to make his claim or to answer questions regarding his written claims. If the applicant chose to not answer that was his prerogative. The adviser asked to speak to the applicant so he could tell the applicant what was expected of him. The adviser was told that he had already had time with the applicant and the hearing would continue. The Tribunal was also mindful that it had just had an adjournment to seek its own procedural advice in the face of the applicant’s refusal to answer questions on the direction of his adviser, during which the advisor could have told the applicant what the expectations were of him, if he hadn’t done so already.
He was asked the question about his arrest again and said that all the information about his claim was in his written application. He was asked to confirm his arrest and he said that he was. Asked how long he was sentenced to prison for, and he said that this information had been put forward to his lawyer. He was advised that the question was asked of him, not his lawyer. He said he was sentenced to six years. Asked if he served the full term, he said there was some remission and he spent four years and eight months. Asked why there was a remission he said it was government policy that they give remissions.
Asked if he was discharged from the military because of his court martial he said that he was. He agreed that he was sentenced to six years and discharged. Asked if he subsequently served in the military in 2013 and 2014, he said that he would discuss that with his lawyer. He was asked to answer the question and the adviser then interjected again saying the Tribunal was forcing the applicant to go against the adviser’s advice. He was again advised that the applicant was being given a chance to put forward his claims and the Tribunal was hearing them. If he chose not to answer an adverse conclusion may be drawn. The adviser then stated that he was withdrawing because the Tribunal was asking the applicant to ignore the advice given to him by the adviser.
He was told that he could do as he pleased with his presence but the Tribunal would continue to ask the applicant to put forward his claims. The adviser then asked the Tribunal to put to the applicant that the adviser was still advising the applicant that he should not answer questions – he was reminded again that the Tribunal simply had to give the applicant the opportunity to put forward his claims. If he chose not to it would not likely be looked upon favourably.
The applicant was told the Tribunal would continue to ask him questions and it was up to him to answer them. It was put to him again that he claimed to have been discharged from the military because he took part in the mutiny yet he appeared to have again served in the military in [Location 1]. He said he would not answer the question.
It was put to him that it was strange that he could have been court-martialled for mutiny and then re-enlisted to serve in [Location 1]. This raised questions in the Tribunal’s mind that perhaps he had never taken part in a mutiny or been discharged. He said that he took part in the mutiny. He was asked how he could have served in [Location 1] after being court-martialled and discharged as a mutineer. He said that he would consult with his lawyer and agree on what the response would be. He was told that this was not how it worked – he was asked a question and answered it. He didn’t have the right to consult with a lawyer before answering a question. The question was asked of him because his claim didn’t appear to make sense. He again said he wanted to discuss it with his lawyer as he had paid his lawyer. He was told his lawyer didn’t know the answer to the question, only he knew the answer. He refused to answer the question and said he would wait for his lawyer.
He was asked about a document he had provided titled ‘Confirmation of Court-Martial Findings and Sentences’. He agreed he was aware of it and it was provided by his lawyer. Asked if it was a true document he said that it was. It was put to him that it said that of the 44 soldiers sentenced to prison sentences of six years or less, that these sentences would be reduced by 50 per cent, yet he said he served four years and eight months which was inconsistent with what the document said and this raised questions about the truthfulness of his claim.
He said the eight months were from remand and the four years was because the commander said just to go through the normal sentencing processes. It was put to him that the Tribunal didn’t understand what this meant. The adviser then interjected and said that he was now looking at false imprisonment now there was a new government that was looking at the issue with respect to these other soldiers. This was all he could say at this stage. The applicant was asked to answer the question and stated that eight months were remand before the court-martial and the 50 per cent reduction never happened and he served four years. Asked if he had evidence that this reduction never happened, he said the evidence was that he was released in 2007 and not earlier.
He was asked about a letter provided purportedly from Suva Corrections Facility and he agreed he had given a copy to his lawyer and the Tribunal. It was put to him that it was dated in the year 2015 originally but hand amended to say 2007 and was asked why this was the case. He said 2007 was when his sentence finished. Asked how he got this letter, he said that he got it from the prison when he was released. He agreed this was in 2007. He was asked why they wrote 2015 in the signature block and body of the letter and this was then hand amended. He claimed this was probably a typing error.
Asked if he brought this to Australia, he said that he did. Asked why he did this, he claimed that he kept it as a record because it was given to him. Asked if he brought a copy of his court-martial documentation he said that he didn’t. He was asked why he brought the prison letter but nothing from the court-martial. He said he was not given any documentation from the court-martial.
Asked when he applied for the tourist visa to Australia whether he noted that he had been charged and sentenced for an offence in Fiji, he stated that he didn’t recall as this was in 2014 when he filled out the application. Asked when he went to [Location 1] in 2014 whether he returned to Fiji first before coming to Australia, he stated that he was unable to answer this question as his lawyer will represent him regarding this. It was put to him that this was a simple question and it did little for his claim if he refused to answer the straightforward question.
He was asked why he applied for protection in Australia and he said he wished to discuss the question with his lawyer. It was put to him that his lawyer couldn’t tell him why he applied for protection and that only he could answer that. He stated that he had discussed this with his lawyer and he would leave it to the lawyer to answer as he was waiting for documentation to complete their case. He was asked what documentation would explain whether he arrived in Fiji before coming to Australia from [Location 1] or the reason why he sought protection here, and he said that he would leave this to his lawyer to answer.
It was put to him that he arrived in Australia [in] September 2014 and got another tourist visa in December 2014 and then applied for protection in June 2016, nearly two years after arriving in Australia. The Tribunal was concerned that he had gone from [Location 1] to Fiji, had not indicated any problems in Fiji, applied for a tourist visa and was granted one and waited for two years before claiming protection. His travel into and out of Fiji and the delay in applying for protection may indicate that he had no problems in Fiji. He said that asked for his lawyer to reply to this question.

Country information was put to them that those who had taken part in coups in the past had not resulted in ongoing problems for them in Fiji. The coup he took part in occurred 22 years ago and he had provided a statutory declaration from his family that stated there were plain-clothes Fijian military personnel surveilling his house in Fiji in 2017. This was 17 years after the coup. The Tribunal had concerns that he never took part in the coup, but even if he did the fact that the Fijian military would be interested in a Territorial private with no leadership role or profile 17 years after the coup seemed to lack credibility given the available country information about the lack of interest given ex-coup participants. It raised concerns that there were no Fijian military putting his house under surveillance. He stated that the only explanation was what he had documented. The concerns were repeated to him and he was again asked for a response. He said that this was what happened.
He was asked and said he was still undergoing medical treatment – he had a [medical condition] in 2016. Asked if there were any issues since then, he claimed that he had [health] issues that were related to the [medical condition]. Country information was put to him that there were sufficient medical facilities of satisfactory standard to treat any medical condition that he had. He said the standard of treatment was not the same as in Australia and in some places in Fiji it wasn’t up to standard. He was asked why he couldn’t live in those areas where the medical treatment was sufficient. He said that from what he knew at the moment the standard of medical treatment was very low. It was put to him that this was not what country information available to the Tribunal indicated and he was advised that he would be given time post-hearing to provide any country information in support of this claim about Fijian medical treatment facilities.
It was put to him that he had provided a number of letters of support as part of his claim. One of them (the Australian Indigenous Ministry in 2016) spoke about the applicant being in the coup and court-martialled. He was asked if this was based on the person relating what the applicant had told him, and he said that this person knew through papers and the person worked with him in ministry. He was asked what he meant by papers as he had been asked by the Tribunal to provide any evidence to support his claim of being part of the 2000 coup and had not provided any to the Tribunal. He said it was well-known and the person had probably heard about it. He said that he was sharing with the person what happened to him when they were doing ministry together.
Asked whether he was in the territorial force (TF) in 2000, he said that he was. Asked how he came to be at the barracks for the coup if he was in the TF, he said there was a march-in called and so he was regarded as regular from that time. After march-out he was TF again. Asked who the military leaders of the Labase barracks mutiny were, he claimed that they were LT Rupeni Waisaravu and another lieutenant whose name was indistinct. It was put to him that, given his witness was unavailable today, the hearing would be adjourned so the witness could be recalled. Because the applicant lived in [one town] and had to drive to [another town] for the video hearing, he requested a telephone hearing and this was agreed to. The adviser requested a copy of the applicant’s protection visa application. The adviser was asked and said that he remained the applicant’s adviser, albeit under duress. The hearing was then adjourned.
Second, Adjourned Hearing
The second hearing was conducted by telephone. The witness was asked to speak and he said that he knew the applicant well as they came from the same province and he knew his family very well. He knew the applicant was a soldier in the TF, who served in [Location 2] and [Location 1]. It was put to him that the applicant’s military record was known and he was asked to speak about the applicant’s claim. He stated that he knew the applicant was one of the soldiers who was tortured in Labase Barracks during the coup. He was arrested and badly treated physically. Asked how he knew this, he said that he was at Labase at the time and was accused of unlawful assembly. Asked if he was a witness to the assault, he said he wasn’t but heard that the applicant was bashed. Some people who were from the soldier’s company who were arrested along with him told him.
He knew the applicant was court-martialled along with the other soldiers. Asked if he had any evidence of this, he claimed that he didn’t have any evidence but he knew he was arrested and spent four or five years in prison. He heard the applicant took part in the mutiny which was why he was arrested but he didn’t know what the applicant’s sentence was, but it was a few years. Asked how he knew the applicant was court-martialled, he said he read their names in the newspaper and on TV. He was asked to provide a copy of the newspaper report post-hearing, and he said he didn’t have a copy of the paper – it was in [Newspaper 1] he believed. He said there was a document with the military about the court martial.
The applicant was given the opportunity to say something after he had requested to do so. He said that in respect to his 2013-14 service in [Region 1], his lawyer advised that he could explain why he went back on duty in the military camp. He was told that he was given the opportunity to answer this question previously and refused, and was asked why he was answering it now. He said that all the people in Labase Barracks are all related and they all worked in [Region 1]. When he was on the outer, he met people from the military in town and they told him to come back. What had happened had happened and it was all finished now. He wasn’t the only one invited back.
He then did the TF Exercise which was a march-in activity and he went with another ex-mutineer. They were sworn in and given uniforms. After this they were told they would be discharged because they had been convicted of mutiny. Asked when this was, he claimed that this was in 2013. He was asked if this was now the second time he was discharged, and he said it wasn’t a full discharge, they were told they had to wait because there were still investigations going on.
He was asked why he never mentioned this in the previous week’s hearing. He said that his lawyer told him not to answer these questions. It was put to him that he could have answered these when asked the previous week – he was asked if he was discharged or not in 2013. He said that they were told to wait as there were still things under investigation. Asked what this could be, given he had been court-martialled previously, he said that he didn’t know. He stated that he was never questioned. It was put to him that it was strange that there was an investigation going on although he didn’t know what it was about and was never questioned regarding it.
He was asked again and agreed that he had been re-enlisted again. He said they were waiting for further calls from the camp but they never contacted the applicant. Asked to clarify that he deployed to [Location 1], he said this was different. It was put to him that this made no sense. How could he be sentenced to six years for mutiny, discharged and then re-enlisted and deployed to MFO [Location 1]. Permission to deploy as part of the regular force to MFO [Location 1] would have to have come from RFMF in Suva and a few mates in Labase Barracks wouldn’t have had the authority to do what he claimed.
He said there was an exercise in the camp and he was approved to go to it and then to [Location 1]. He was asked again how the RFMF would have approved him to deploy to [Location 1] after having court-martialled and then discharged him for mutiny, the most serious of charges against a soldier. He said he didn’t know how the approval was made or who did it. It was put to him that the Tribunal found this very hard to believe. It also made no sense that if they had approved his re-enlistment that they would then send undercover RFMF personnel to surveil his family’s house. None of this made sense.
He said that they probably didn’t screen him properly. It was put to him that he may have had to have obtained special permission to deploy given he was [age] years old. Asked if he needed special permission, he said the retirement age was 55. It was put to him that the RF age was 45 and he would have been brought into the RF to deploy overseas. He said he didn’t know but only knew they approved his deployment.
On his return there was a [relative] of his, a Training Sergeant Major at the TF brigade, and he told the applicant that while in [Location 1] the RFMF realised he was in the mutiny and shouldn’t have deployed. Asked if he had mentioned this before, or when he was asked the previous week at his hearing, he stated that he was going by his lawyer’s advice not to answer questions. It was put to him that the Tribunal found it hard to believe this claim about his [relative] and that, if they knew he was a mutineer when he was in [Location 1] it is reasonable to believe that they would have sent him home straight away when the error was discovered. He was asked why they continued to let him serve in MFO rather than send him home straight away.
He claimed that it was the headquarters that asked the sergeant-major how the applicant went to MFO, and the sergeant-major said that the applicant went on the exercise and was approved. The applicant was asked to answer the question, which was why he wasn’t returned to Fiji once the error was discovered. He claimed that his [relative] wrote a letter to the RFMF that he was approved to attend the exercise and this was what saved him. It was put to him that a warrant officer wouldn’t be the one to write to HQ RFMF and explain that everything was okay. Such a response would have to go through a chain of command and his claim simply didn’t stack up. Asked if he wished to add anything else, he claimed that his [relative] advised that now the military knew he had been re-enlisted and deployed that he advised the applicant to find somewhere to go.
The applicant then returned home and spoke to his family and explained the difficult situation and his best option was to leave the country. Asked if he returned to Fiji from [Location 1], he said that he did. He had no problems and then began applying for a visa so he could leave before the election as it would have been hard for him to leave. Asked if he had any problems leaving Fiji he said that he didn’t.
Regarding the discharge letter from the prison, he said that he tried to contact the head of prisons at the time but he was now at another prison and to get a copy of the original discharge letter it would take 3-6 months according to his lawyer. It was put to him that his conviction was allegedly recorded in the [Newspaper 1] so he could just provide a copy of this as he had already [provided other media information to the Tribunal previously.
The adviser was asked if he wished to add anything and he then requested the Tribunal ask the applicant when he re-enlisted the second time what name that he used, as the applicant had told the adviser certain things that hadn’t been elicited from the questioning. The TribunaI declined to do this and the adviser was told that the applicant had been given the opportunity on two occasions to put forward his case and if he failed to raise issues then they could be raised in a post-hearing submission.
The adviser said the witness referred to a Board of Inquiry (BOI) report in which the applicant’s name was mentioned and he was advised that the witness also said he read it in the newspaper. The adviser said that the BOI report was already held by the Tribunal and he asked for a copy of it. It was put to him that it was not a BOI report but was an article from ‘Truth for Fiji’ – the applicant’s name was not mentioned in it but he would be given a copy nevertheless.
The applicant was asked if he had anything else he wished to say. He did not say anything and it was put to him that the Tribunal had great concerns that he was ever in a coup, court-martialled for or sentenced to prison or that he was of any interest to anyone in Fiji. He then said that he had forgotten to say something and then proceeded to state that his discharge letter name was different in that it said his name was [Name 1] and was supposed to say [Name 1]. During his march-in and deployment he was using the name [Name 2]. He was asked if he had another name other than what he was using now and he stated that [Name 1] was in his previous passport and he was told that he had to use the name [Name 2].
The Tribunal said that it didn’t understand and was asked if his name was [Name 2] – he said that his first and second names were [Name 2] but in his military days he used [Name 1]. Asked what military days he was referring to, he stated that in 1989 he used [Name 2 variation]. In 1990 the name was changed to [Name 1] as they realised the name [deleted] was not in his birth certificate.
Asked when he used [Name 2] after his previous passport expired. Asked what name he used in 2013 when he said that he re-enlisted in the RFMF, he said that he used [Name 1]. Asked when he used [Name 2] he said that he used it during his march-in. It was put to him that he had provided a RFMF Land Force CV for [Name 2] that showed all his courses and deployments back to 1987 which would indicate that the RFMF considered him the same person – the personnel system likely linked all his details and they knew him to be the same person regardless of what name he used. He would have kept the same service number which would have stayed constant regardless of what name he used. No more issues were raised.
CONSIDERATION OF Claims and evidence
The applicant arrived in Australia [in] September 2014 on a visitor visa and applied for protection on 23 June 2016. I have seen a copy of his passport and I am satisfied that he is a Fijian national.
The applicant is a [age] year-old married male whose family remains in Fiji. He claimed that if he returned to Fiji he would arrested and harmed, even killed by Fijian authorities because he had previously taken part in a military coup.
In considering an applicant’s account, undue weight should not be placed on some omission or confusion to conclude that a person is not telling the truth. Nor can significant embellishments or inconsistencies be lightly dismissed. The Tribunal is not required to uncritically accept any or all of the claims made by an applicant.
I found the applicant’s claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness and that he fabricated his claim in order to be granted a protection visa.
Conduct of Hearing
The hearing was conducted in two parts. The adviser twice asked for an adjournment of three to six months in order to gather official documents relating to the coup via FoI from Fiji, as this was the only option available to him (he claimed that the lawyer representing the mutineers had died and that the period of time when documents that may have been relevant to the court-martial needed to be held by the law firm had passed). The first request was denied and the applicant’s adviser told that this was due to the amount of time that the claim had remain unresolved (original application June 2016 and negative DIAC decision June 2017) and that rather than granting such a lengthy adjournment that contemporaneous media reports outlining the applicant’s coup involvement would suffice as evidence of his participation.
The second request for a 3-6 month adjournment was sent by the adviser at 1114 the day prior to the next day’s 0900 hearing. The member works part-time and did not receive the request until that afternoon. The adjournment was requested based on the need to send a FoI request to Fiji, to FoI the DHA in Australia to get the applicant’s original protection visa application, and some ‘new’ information provided to the adviser by the applicant. The nature of this ‘new’ information was never revealed to the Tribunal.
The Tribunal is satisfied that the applicant was given sufficient notice of the hearing, and that he had sufficient time to appoint an adviser (he was appointed on 5 January 2023 and received the applicant’s decision record on 9 January 2023). The applicant had sent supporting documents (largely in the form of character references from individuals and groups he had worked with in Australia) to the Tribunal in August 2019 and he re-sent these on 23 December 2022.
The applicant had years to obtain documents relating to the court-martial to support his claim. The applicant requested, and was granted, an extension to submit his post-hearing submission. He then provided what he claimed were court-martial documents that were obtained not via FoI or from the mutineers’ alleged lawyer, but from a friend of the applicant’s and allegedly a fellow mutineer. The fact that the applicant’s friend allegedly had a copy of the court-martial documents that could be provided to the Tribunal raises questions as to why the documents were not provided by the applicant years earlier, and why the applicant’s adviser stated that a FoI to the Fijian Ministry of Home Affairs was the only option open to the applicant’s adviser to obtain them. The fact that the applicant’s friend had a copy of the court martial documents also supports the Tribunal’s decision to deny a 3-6 month adjournment to allow a FoI request to the Fijian government to obtain the same.
The first hearing held on 13 January 2023 was adjourned to 18 January 2023 and the applicant’s adviser provided with a copy of the applicant’s original protection visa application on 13 January 2023. The Tribunal is satisfied that the was given sufficient notice of the hearing, that the adviser had sufficient time to advise his client and sufficient information (the decision provided to him prior to the hearing outlined the applicant’s claims, and he had the opportunity to speak to his client) regarding the applicant’s claims prior to the hearing. He was given a copy of the original protection visa application and further opportunity to speak to his client between the adjourned hearings, and was afforded an extension to the time given post-hearing to provide additional information. The second hearing was scheduled in order to allow the applicant’s witness to provide his evidence as he was not available at the first hearing.
During the first hearing the applicant’s adviser interjected on a number of occasions, attempted to speak over the top of the member, accused the member of badgering the applicant, and according to the applicant had instructed him not to answer questions. At one point the adviser told the Tribunal that he was withdrawing, but at the Tribunal’s direction he stayed on the line until the end of the hearing. He never formally withdrew (or was withdrawn) from the hearing.
I do not accept the adviser’s claim that the Tribunal was badgering the applicant – rather, it was attempting to get him to put forward his claim either directly or in response to questions asked of him, and explaining that this was his opportunity to do so. There was an adjournment during the first hearing when the member sought legal advice regarding the applicant’s assertion that he would not answer questions on the advice of his adviser. The Tribunal is satisfied that the adviser could have used this opportunity to tell his client that this was his opportunity to put forward his claim, if indeed the adviser believed the applicant had misconstrued his role in proceedings.
Regardless, the Tribunal has not drawn an adverse inference from the applicant’s failure to answer questions when asked during the first hearing and instead has based its findings on the documentary evidence presented and the applicant’s responses to questions asked of him at the first and second hearings.
Military Service

I accept that the applicant was a member of the Fijian TF (army reserve equivalent) and that he has on occasion deployed as part of RFMF peacekeeping missions to [Location 2] and [Location 1]. I do not accept that he ever took part in the 2000 coup, that he was ever detained and arrested by Fijian soldiers as a result of taking part in the coup, subsequently charged and tried by court-martial for mutiny and then served a prison sentence and was discharged from the RFMF as a result.
There are a number of reasons that I do not accept the claims he put forward regarding the coup and his subsequent treatment. These include the following:
a.Court-Martial. The applicant stated that he was court-martialled, sentenced to six years jail and discharged from the RFMF as a result of his taking part in the mutiny. He was released after serving four years and eight months of his sentence. This was inconsistent with a document that he provided the Tribunal that contained a direction from the President of Fiji (and signed by the Permanent Secretary of Home Affairs and Immigration) that stated that for those soldiers sentenced to six years or less in prison the president had reduced their sentences by half. When asked to explain this inconsistency, the adviser sought to interject and the applicant stated that eight months were being on remand and that the reduction never happened. Time in remand is normally considered part of the period of confinement in sentencing[1], and he has provided no country information that negates the country information he provided to the Tribunal that states the sentences were reduced by half;
[1] SENTENCING AND PENALTIES ACT 2009 - Laws of Fiji, accessed 8 February 2023.
b.The hearing was adjourned to give the applicant an opportunity to present a witness who supported his claim regarding his participation in, and subsequent court-martial for, participating in the 2000 coup. I lend the witness testimony little weight. While I accept that the witness (a former Fijian politician) was present at the barracks, he was not an eye-witness to any of the incidents involving the applicant, and also claimed that he knew the applicant’s family well which means that he is not a completely objective witness. He claimed he heard about the applicant being detained and beaten from other soldiers in the applicant‘s company and that he read that the applicant was court-martialled in the newspaper and saw it on TV. No media evidence was provided in support of this claim and this, combined with the lack of eye-witness testimony and his close relationship with the applicant’s family means that I give his evidence little weight;
c.I also lend little weight to a letter that the applicant claims was provided to him on release from the prison where he was detained. The letter was basic and could have been made on any home computer, it makes no mention of what he was sentenced for, and the body of the letter and the signature block both used the year 2015 and were then hand amended with the year 2007. I don’t accept that it was a typo given it is strange that someone allegedly writing a letter in 2007 would somehow twice mistakenly write 2015 in different places in the one document;
d.I also lend little weight to what the applicant claims was a copy of the court-martial document that was provided to the applicant by one of his co-mutineers. It was provided post-hearing and consists of what appears to be photocopies of seven pages from a number of documents. Which source documents they are from is not referred to in the submission. Given they are neither original nor complete documents, the Tribunal has significant concerns about their genuineness;
e.The Tribunal is also concerned about how a co-mutineer could be in the possession of what appears to be a cover sheet of a police interview with the applicant. Such a document would not form part of the prosecution case for someone other than the applicant and no explanation was given as to how an alleged co-conspirator would be in possession of the applicant’s police interview;
f.The timing of the pages’ appearance is also suspicious. The applicant was requested to provide copies of any material relating to his court martial on 6 January 2023, the first hearing was held on 13 January 2023 and the second one five days later, on 18 January. No mention of a co-conspirator being in possession of such documents was made, nor any indication that such enquiries were being made – the adviser claimed on 10 January 2023 that his office had conducted extensive internet searches for any court-martial documents but were unable to locate any, and the legal representative who had allegedly appeared for the applicant and other mutineers was now deceased and the adviser required a three to six month postponement as his only other option was a lengthy FOI request in Fiji;
g.On the afternoon of 12 January, the day before the first hearing the adviser then stated that the applicant had disclosed unspecified ‘new’ information to the adviser and reiterated his request for a three to six month postponement so he could make a FOI request in Fiji. Given his allegedly extensive searches for court-martial documents prior to the hearing, and the seven years that the applicant had to provide evidence of the court-martial to support his claim, the appearance of parts of the actual document that allegedly showed the applicant as a mutineer that was sourced from a friend raises serious questions about the fortuitous timing of the document’s appearance. Given the ample time the applicant had to source such evidence, the fragmentary nature of the evidence, the lack of originals, and coincidental timing of its appearance, I place more weight on the inconsistencies surrounding his claim and alleged re-enlistment and subsequent promotion (see below) in determining that the applicant was never involved in, nor court-martialled as a result of the 2000 coup.
h.Re-enlistment Post Discharge. In the first hearing he agreed that he was discharged from the RFMF because of his involvement in the mutiny. At the second hearing he stated that he had been re-enlisted and was deployed to [Location 1] and this was because the people at Labase barracks were all related and that they forgave him and asked him to come back. I do not accept this to be the case.
i.The response lacks credibility as it presumes that there is no centralised oversight of recruitment into the RFMF and that local soldiers who were relatives or from the same district can simply re-enlist someone. The member spent more than 26 years in the Australian army and has served alongside and worked with the RFMF on occasion. Whilst there are obvious differences between the militaries, in the member’s experience the RFMF is not sufficiently different from the ADF to allow some local soldiers to re-enlist a mutineer discharged from the RFMF. The RFMF not only maintains oversight[2] of who is recruited into the TF, the applicant’s service record also indicates that he was posted into the RF to serve in the [specified] Battalion Fiji Infantry Regiment. Given that his transfer into the RF would have to have gone through HQ RFMF and not been the responsibility of some local soldiers at Labase;
j.There is no indication in the record of service he provided to the Tribunal that he was ever discharged or subsequent re-enlisted despite the fact he had the same identification number the whole time he was in the RFMF. Country information also indicates that recruitment into the RFMF requires a police clearance showing a clean record for the previous 15 years[3] so his re-enlistment would have required that he reveal his period of incarceration.
k.The Tribunal’s finding that he was not surreptitiously re-enlisted into the RFMF is further strengthened by the information he provided post-hearing that showed he was actually promoted. He provided a copy of his MFO [Location 1] service certificate which shows that he was a lance-corporal rather than a private. This adds to the concerns the Tribunal has regarding the truthfulness of his claim to have been court-martialled, given that based on the evidence he presented post-hearing he was not only able to re-enlist, he was actually promoted from private to lance-corporal despite having been previously court-martialled for mutiny;
l.I also do not accept that his presence in the RFMF was known after he deployed to [Location 1] but that his [relative] (a warrant officer) wrote a letter to HQ RFMF and this saved him. Again, this had never been raised in his written submission nor in his first hearing. Given the member’s experience in the military and knowledge of the RFMF, TF sub-units are under the command of an officer who reports to the unit commander who in turn reports to the TF brigade commander and then to HQ RFMF. Personnel at each level have knowledge and oversight of their personnel, therefore it lacks credibility that a warrant officer could simply bypass several layers of his own chain of command and write a letter to HQ RFMF who in turn would accept the explanation from a low-ranking, non-commissioned officer without any reference to any officers in his chain of command. Then having allowed him to write to them directly, the idea that they would then be happy to accept a low-ranking soldier’s explanation and allow a court-martialled and discharged mutineer to continue to serve in the RFMF on an overseas deployment is completely implausible;
m.I also do not accept that the applicant was able to re-enlist in the RFMF because he used a different name. He never mentioned this in his first hearing nor in his second hearing when asked, and he only offered this explanation after his adviser requested over an open telephone line that the Tribunal ask the applicant what name he re-enlisted under. Given the late submission of the explanation after he was twice given the opportunity to raise it, and following ‘prompting’ by his adviser, I can lend this explanation little weight;
n.He claimed that he re-enlisted under the name [combination of Name 1 and Name 2] but that he did his march-in (taken to mean his transfer from the TF to the RF before deployment) in the name [Name 2]. He further stated that he used the name [Name 2 variation]until 1990. Regardless of what variation of his name he used, the document he provided as evidence of his military service (TF Land Force Command CV) lists his name as [Name 2] with a single Regimental Number and lists his postings and courses from 1988 to May 2014 which indicates that the RFMF personnel system knew him to be the same individual regardless what variation of name he may have used; and.
o.I do not accept the adviser’s claim that while the events described above might not happen in the Australian military it ‘doesn’t necessarily mean that it doesn’t happen elsewhere’. This is based on nothing other than supposition and the Tribunal places more weight on its experience of the RFMF and the fact that the applicant claims that not only was he able to be re-enlisted into the RFMF TF despite allegedly being a discharged mutineer, he was also able to transfer into the RF, be deployed to [Location 1] and be promoted. Any one of these actions would lack credibility, the combination of them all makes the claim implausible in the extreme.
Other Issues
[2] RFMF Territorial Force Intake 1/2018 Interview (fijisun.com.fj), accessed 15 February 2023.
[3] Recruitment - The Republic of Fiji Military Forces (rfmf.mil.fj), accessed 15 February 2023.
Given I do not accept that the applicant was ever involved in the 2000 coup or court-martialled because of it, it follows that the applicant’s family house in Fiji has not been under surveillance by plainclothes RFMF personnel, nor that the applicant’s wife has ever been questioned about the applicant’s whereabouts.
The Tribunal has also considers it implausible that the RFMF would have any interest in a private soldier or in his family 17 years after he allegedly took part in a coup. This is supported by the 2022 DFAT Fiji report that said of individuals involved in the 2000 coup that ‘…they will likely already have been punished for any crimes related to those events and many enjoyed successful careers after the coups.’[4]
[4] DFAT Country Information Report – Fiji, 20 May 2022, p 16.
I have taken into account the statutory declaration by the applicant’s wife attesting to the interest shown in the applicant by the RFMF and its impact on the applicant’s family at home, however I lend it no weight. It is written by the applicant’s own wife who is not necessarily an objective witness, it runs counter to the DFAT country information noted above and as he was advised at the hearing the claim that the Fijian military would send undercover surveillance teams to the house of a TF private who took part in a coup 17 years previously entirely lacks credibility .
I have also taken into account the range of material the applicant provided post-hearing from a range of organisations and individuals in Queensland. Nearly all of them are essentially character references and therefore not relevant to his claim. A number of them refer to the danger the applicant faces on return to Fiji. They are however simply repeating claims made to them by the applicant which I have found to have been fabricated. Hence I lend these statements no weight.
Although it is not a claim that he made in his written application or orally, he did provide some documents from Australia regarding medical treatment he had received. They were unreferenced and their relevance not immediately apparent however I have addressed them for completeness’ sake. The documents include a 2017 GP report referencing treatment for a [medical condition] in which the doctor stated that he was on medication and the illness would be treated more effectively in Australia than in Fiji. A December 2018 doctor’s report [repeated] word for word the sentences regarding medical treatment in Australia and the applicant’s participation in the coup that was used in the 2017 medical report.
For completeness’ sake the applicant was asked about his medical treatment in Australia. The applicant variously claimed that standard of medical treatment in Fiji was very low, not the same as in Australia and in some places it wasn’t up to standard. He was advised that this ran counter to the country information available to the Tribunal.[5]
[5] See for example Review of Cardiac Services in Fiji (ungm.org) accessed 8 February 2023, and DFAT Country Information Report – Fiji, 20 May 2022, p 7.
Whilst I accept that the medical treatment for the applicant’s condition would be better in Australia, there is no evidence that it couldn’t be treated in Fiji. The last medical report the applicant provided was from 2018 and his condition was being treated with medication. This would indicate that his health condition was non-life threatening and the medical facilities in Fiji would be able to appropriately deal with his medical condition. He was also given time post-hearing to provide any country information in support of a claim that the quality of Fijian health support was very low, however no such information was provided. Indeed, neither his written submission nor his post-hearing submission made any reference to a medical claim whatsoever.
I note that if he returned to Fiji he would also be in an environment where he had the presence and support of his close family and where he could speak the language (the hearing was carried out with the aid of an interpreter) which would be likely to assist him holistically. As a consequence I do not accept that there is a real chance that his return to Fiji with his medical condition would constitute serious harm for s 5J purposes.
As the applicant hasn’t raised any other claims to fear persecution and, having regard to all the evidence and their claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J)(1)(a) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant ever took part in the 2000 coup, was ever detained and beaten by Fijian authorities, court-martialled, found guilty, sentenced to prison and discharged, that his family house is under surveillance or his wife questioned or that he would be unable to access appropriate health care in Fiji, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, that there is a real risk that the applicants will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
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.
Rodger Shanahan
Member

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

[2023] AATA 1199

17 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice