1717041 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse a protection visa to a citizen of Fiji. The applicant claimed to fear returning to Fiji due to his political affiliations and his employment, which allegedly gave him access to confidential information of strategic military interest. The delegate had refused the visa on the basis that the applicant was not a refugee and that there were no substantial grounds to believe he would suffer significant harm upon return.

The legal issues before the Tribunal were whether the applicant met the definition of a refugee under section 5H of the Migration Act 1958 (Cth), and alternatively, whether Australia had protection obligations towards him under section 36(2)(aa) of the Act, meaning there were substantial grounds to believe he would suffer significant harm if returned to Fiji. This required an assessment of the applicant's credibility, the veracity of his claims regarding past mistreatment and future risks, and the general country information pertaining to Fiji, particularly concerning the actions and accountability of its military and police forces.

The Tribunal found the applicant to be a credible witness whose oral evidence was internally consistent and supported by documentary evidence where possible. While the Tribunal could not be satisfied on the balance of probabilities that the applicant had been abducted, abused, and threatened by the Fijian military as he claimed, it gave weight to the country information detailing documented cases of abduction, abuse, and torture by the Fijian military, and the unique nature of the applicant's job involving confidential information of strategic military interest. Considering these factors cumulatively, the Tribunal accepted the possibility that the events described by the applicant had occurred and concluded that if returned to Fiji, there was a real risk he would suffer significant harm from the Fijian military. Although the Tribunal was not satisfied that the applicant would suffer persecution for a Convention reason, it found that Australia had protection obligations towards him under section 36(2)(aa) of the Act.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion under section 36(2)(aa) of the Migration Act 1958 (Cth).