1722099 (Refugee)

1722099 (Refugee) [2022] AATA 4972 (27 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1722099
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Christine Cody
DATE:27 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 November 2022 at 4:23pm

CATCHWORDS
REFUGEE – Protection visa – Fiji – race – indigenous Fijian – political opinion – opposed to Fijian government – supporter of the Social Democratic Liberal Party – abused physically and verbally – denied government assistance after floods – willingness to return to Fiji – conflicting, inconsistent and contradictory evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 423A, 424AA, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 20 June 2017. The delegate refused to grant the visas on 1 September 2017. The first named applicant (hereafter referred to as the first applicant) was born in in [year] in [Fiji]. She is married to the second named applicant (the second applicant) who was born in [year] in [Town 1][Fiji][1].
[1] At the hearing the husband indicated that the wife was the primary applicant and that her evidence should be taken first.
Migration history[2]
[2] This is sourced from the application forms, passport stamps and from the delegate’s decision record (put pursuant to s 424A of the Act when required).
The applicants’ migration history in relation to Australia is as follows:
·[Date] January 2017: the second applicant arrived in Australia on a Visitor (Class FA, Subclass 600) visa.
·[Date] March 2017: the second applicant departed.
·[Date] March 2017: the second applicant returned to Australia.
·[Date] May 2017: the first applicant arrived in Australia on a Visitor (Class FA, Subclass 600) visa.
·20 June 2017: the applicants applied together for Protection (Class XA, Subclass 866) visas.
Department file[3]
[3] There is no certificate of non-disclosure on the Departmental file.
The applicants provided protection visa application forms, both making claims for protection, as well as Form 80s, their birth certificates, marriage certificate and extracts from passports.
According to their forms, the applicants’ joint history and background was provided in their protection visa application forms as follows:
·They were married in 1998, and from that time until December 2003 they lived in a village in [Town 1]. They have 3 daughters: [Ms A] born in [year], [and two others].
·In January 2004 they moved from the village to live in [Town 2], where they resided until December 2016.
·Their religion is Christian, and ethnicity is Fijian. They speak, read and write in the Fijian language, and speak and write English.
·They are not currently employed, but they have been “working” at [a church], Australia since May 2017.
Additional information about the applicants from their forms includes:
·The first applicant arrived in Australia on [date] May 2017; she had not previously engaged in travel. From January 2010 to February 2017 she worked at “[a workplace]”.
·The second applicant first arrived in Australia on [date] March 2017; he had not previously visited Australia. He had previously travelled to [Country 1] between 2010 and 2013 to visit family members. From January 2004 to January 2016 he worked at [a workplace].
Claims made by the applicants
The applicants made identical handwritten claims in their protection visa application forms, which are summarised as follows:
·They were involved with a political group which opposes the current Fijian government.
·They were tortured, that is, pushed, shoved, kicked on the ground, spat on the face and verbally abused in Fiji by the military, who follow the orders of the government.
·They could not trust anyone in the government so they could not share what had happened, or seek help.
·They fear further harm of the kind already experienced if they return to Fiji, namely physical and verbal abuse. They will be in danger and will lose their lives because they are against the government. There is a strong impact if one goes against the government, and they have not kept quiet about the current government, which would put them in danger and would cost their lives.
·They cannot relocate as there is always someone who works for the government in each state/suburb.
·They were not allowed to travel in Fiji or move to another country because of their stand against the government.
The delegate’s decision record
There was no interview with the delegate. In the delegate’s decision record, the delegate set out the following country information:
·     Past reports indicate that during the period of military rule after armed forces commander Commodore Josaia Voreqe (Frank) Bainimarama overthrew the elected government in December 2006, freedom of speech, expression and association were curtailed in Fiji; the military government used repressive tactics to stifle protests and intimidate critics; and serious human rights abuses occurred. This included the arrest, detention and physical mistreatment by the military of perceived opponents.
·     However, more recent reports indicate a generally improving human rights situation in Fiji in recent years. The US State Department reported in 2013 and 2014 that the military had ceased its practice of detaining, and in many cases abusing, persons deemed critics of the government. Democracy was restored in Fiji in 2014. The US Department of State reported in 2016 that 'Fiji is a constitutional republic. The country held general elections, which the Australian-led Multi-national Observer Group deemed credible and “broadly reflected the will of the Fijian people,’’ in 2014. Josaia Voreqe (Frank) Bainimarama’s Fiji First party won 32 of the 50 seats, and he was sworn in as prime minister’.’
·     Following the September 2014 election, the Commonwealth and the Pacific Island Forum both lifted their suspensions on Fiji’s membership. In April 2016 the US State Department reported that civilian authorities regained effective control over the security forces after the general elections, and in contrast with previous years, there were no reports of political prisoners or detainees. While human rights problems still occur in Fiji, and in the past there have been several deaths in police or military custody resulting from beatings or assaults, in the period since the September 2014 election there have been no reports that the government or its agents committed arbitrary or unlawful killings. The government increasingly took steps to investigate security force officials who committed abuses, and prosecuted or punished most officials who committed abuses elsewhere in the government.
The decision record also mentioned an Department of Foreign Affairs and Trade (DFAT) Country Information Report for Fiji from 2015 which stated that while the Fijian government has continued to monitor, harass and intimidate senior political opponents, human rights activists, trade union leaders and journalists, it did not state that electoral or low-level campaign supporters of opposition parties faced a real chance of being targeted for serious harm.
The delegate said that, while the applicants may have been harmed by the military in the past due to their political activism, there is insufficient evidence to suggest that they have a high political profile in Fiji such that they would attract ongoing adverse attention from the military or other authorities. On the basis of the available information, the delegate was not satisfied that they face a real chance of persecution in Fiji based on their past political involvement, or indeed were they to express anti-government views in the reasonably foreseeable future. Similarly, the delegate did not accept that the applicants faced a real risk of significant harm in Fiji.
The Tribunal
The applicants lodged an application for review with the Tribunal in September 2017. They received some assistance from the Refugee Advice & Casework Service (RACS) in corresponding with the Tribunal (and in drafting the first applicant’s statement) but RACS did not provide an Appointment of Authorised Representative form to the Tribunal (despite being requested to do so if they were seeking to be the applicants’ registered agent) and there was no suggestion that they sought to be involved in or represent them at the hearing.
A statement and supporting evidence were provided to the Tribunal, as set out below.
Written statement
A written statement made by the first applicant was received by post on 26 October 2017. In the opening paragraph, she states that this is “a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Immigration”. This was, however, submitted to the Tribunal, not the Department. At the end of the statement is a disclaimer stating that this statement was prepared over the course of 2 hours by RACS Legal Help for Refugees Clinic; there may be errors or omissions in the statement based on the limited time available devoted to its preparation and the inability to access accredited interpreters. The statement was not signed. The first applicant’s claims are summarised as follows:
·She fears that if she were to return to Fiji, she would be seriously harmed as an indigenous Fijian and due to the fact of her political opinion as she is opposed to the Fijian government.
·She is a supporter of the Social Democratic Liberal Party (SDL Party or SODELPA) in Fiji. She started supporting this party in around 2005 as the party was “in favour of indigenous Fijians and the protection of our land and the proper education of our children”.
·As a supporter of the SDL Party she distributed pamphlets in support of the party in [Town 1] in the streets and she also attended SDL Party meetings.
·In 2006, the applicants were stopped by soldiers at night, after visiting a daughter. The soldiers asked why they were walking around after curfew time. The soldiers then kicked the second applicant to the ground. They then pushed the first applicant, who dropped her daughter and fell onto a fence, hurting her arm, and then she was spat on. The soldiers walked away. They knew they could not report this to the police as the army was the law and the police would do nothing.
·After this attack she was so afraid that she could not actively support the SDL Party anymore as she thought she would be seriously harmed again.
·In 2010 she and her husband were caretakers of her aunt’s [land]. During that year, her aunt, an indigenous Fijian, told them that the government had stripped the land from her and leased it to someone else so they had to move. This was a common occurrence for indigenous Fijians and demonstrates the difficult lives of indigenous Fijians at the hands of the government. They then had to move to [Suburb 1].
·In 2016, their house in [Suburb 1] was severely damaged in a cyclone but the government did not give them anything to help them survive; her husband’s work was all that they had to survive.
·They fled Fiji in May 2017 for Australia as the next elections were fast approaching in 2018. They were worried that the same things would happen to them as had happened in 2006.
·If returned to Fiji she fears she will be subjected to serious harm including being very badly beaten, imprisoned and even tortured. She has already experienced beatings and being removed from land that was owned by her family while she was there.
·She could not relocate nor be protected by anyone, including the authorities, as the military are everywhere and would target her no matter where she goes.
Other supporting documents and correspondence
On 3 January 2018 the applicants provided extracts of reports, and newspaper articles from 2015/2016 stating that overseas Fijians, including high profile figures in Australia, plotting against the Fijian government (committing sedition) have been warned they will be tracked down and brought to justice. The Prime Minister called SODELPA a troublemaker, and it was noted that very high-profile political leaders/figures had been detained for attending a meeting without a permit. There were references to corruption and concerns (due to a lack of proper assessment of needs) about how assistance was provided to people adversely affected by Severe Tropical Cyclone Winston, and noting shortages of material in hardware stores. Extracts of a 2015 Amnesty International article relating to detention refers to: concerns that extrajudicial punishment was meted out to some escaped prisoners and that some suspects had been beaten, and a fear that there will be a lack of accountability in relation to the officers committing these actions; a lack of safeguards against ill-treatment; coerced confessions; concerns for some lawyers and witnesses; impunity for some officials who have been convicted of torture; warnings by the police for the military to keep out of civilian policing matters; and police powers.
Also provided were photos of a man (not clearly identifiable from the photos themselves) in a hospital bed, with bloody marks on his face and body).
On 4 October 2022 the applicants were invited pursuant to s 425 of the Act to give evidence and present arguments at a hearing on 20 October 2022, and to provide any documents to support their case by 13 October 2022.
The applicants responded to the hearing invitation, stating that they would both give evidence. They provided a letter from Pastor [B] at [Church 1] (undated, addressed to the Department) stating that the applicants serve as committee members on the church board, they are supportive and helpful, they volunteer to help and are a wonderful addition to the community. He states that they have informed him of their poverty-stricken life in Fiji, which impacted upon their safety and well-being. They feel safe and secure in Australia and have no intention of returning to Fiji.
They provided some photos showing flooding and inundation of streets and houses.
They also attached a letter from an account manager at a recruitment agency dated 13 October 2022 in support of the second applicant’s bridging visa, which states that he commenced working in July 2021 through their agency as a [worker], he is hardworking, and they want to offer him ongoing work. It is requested that his visa be extended at this crucial time to support their business and the Australian economy.
The hearing
The applicants appeared before the Tribunal on 20 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 Tribunal explained that it would make up its own mind and was not bound to accept or reject what the Department accepted or rejected.
The Tribunal noted that the child [name], born [date], was born after the delegate made a decision, and was thus not an applicant in the current application. The first applicant said this was correct. The Tribunal explained to both applicants that it is considering whether they were refugees or entitled to complementary protection and not the child, although it would consider matters that would affect each applicant (including, for example, that they have children).
Some of the evidence given at hearing is set out below.
Similar evidence from both applicants included:
·The applicants confirmed that they were married and live together; they now reside in [a city]. Their daughter [Ms A] arrived in Australia [with] a 3-year contract. She has a 3-year visa, and is residing in [another city]. The other 2 children remain in Fiji. One has finished school and is applying to come to Australia as a student; the other daughter is almost finished her studies. The applicants support the children in Fiji, who live in the family home, which the applicants own. As noted above, the applicants also have a [child] in Australia.
·The applicants confirmed that they moved from [Town 1] in 2003 to an address in [Town 2]. They purchased a subdivision of land upon which they built their house. The second applicant said that initially when they moved, they stayed with his aunt.
·Both applicants said that their protection visa forms were true and correct, and that the first applicant’s statement to the Tribunal was true and correct. Both said that there were no errors.
·Both applicants agreed that the second applicant visited [Country 1], but not for a 3-year period. The first applicant said he visited his brother there for 3 months in 2016. The second applicant said that he can’t recall when it was (but it was after they had moved to [Town 2]). He visited twice, for 6 weeks each time [3 months in total). He said that he went to see what life is like there and what opportunities there are.
Neither of the applicants made any suggestion in their evidence of any political or anti-government activity while in Australia.
Evidence from the first applicant included:
·She was working in Fiji in a [workplace], 3 days per week, and had worked there for maybe 7 years until the applicants came to Australia.
·When she first arrived in Australia, she was a [occupation]. She worked in a [Workplace 1] in Sydney, and since they have moved to [a city], she has worked in a [factory], which she started doing in February 2021. Her husband started working as soon as he arrived here, in construction. He also worked at the [Workplace 1]. He has had a variety of [jobs].
·She has studied [a qualification] in Australia (when asked what she has been doing here). She also assisted in church activities such as church flower arrangements and taking food to those who need it. For instance, sometimes they got bread from a bakery to deliver to the indigenous community in Sydney. She has not done any other activity since she has been in Australia.
·That life in Fiji is difficult and it is hard to care for her family there because the costs of living were too high (when asked whether anything concerns her about returning to Fiji). Her husband was working as a [occupation] and his wages were not enough to cover domestic expenses such as food, nor to support the children and their education ($250/year per child). In Australia, however, she sees a lot of opportunities.
·That her husband was badly assaulted during the coup in [Town 1] (when asked whether there was anything else that concerned her about returning). The Tribunal noted that they were not living in [Town 1] during the coup (2006). She said that they were there distributing election campaign pamphlets.
·That nothing else happened and there is no other reason to fear returning to Fiji (when again asked whether there was anything else that concerned her about returning).
·A new claim that she and her daughter had been robbed.
·That her husband had come to Australia then returned to Fiji, and then had come back to Australia.

Evidence from the second applicant included:
·That in 2005 they started being supporters of the SDL Party (not members). He assisted in delivering campaign pamphlets to the public. He stopped being a supporter in 2006, after he was beaten up.
·That he first came to Australia and stayed for 6 weeks, in search of a better life and better opportunities; then he returned to Fiji and came back again to Australia. The Tribunal asked why he went back to Fiji and he said this was because he had leave from work to come here; he was still employed so he went back to Fiji to continue his job.
·That he did not want to stay in Fiji because of the difficulties of the cost of living; this was his first response in answer to a question from the Tribunal. He also referred to “what the Fijian government was doing”. When asked what this meant, he said that in 2006 he was beaten up. He said there were no other problems when they were in Fiji, apart from his wife and daughter being robbed. He then said that when the area where they lived was flooded in 2016, they didn’t receive any assistance from the government. When asked what would happen if he returned, he said that there are no human rights in Fiji and if he returns and involves himself in something, he would suffer the consequences. The Tribunal asked what he might involve himself in and he said the opposition party. The Tribunal noted that he had engaged in no political activity while in Australia, although he had the opportunity to do so; he agreed.
·That at the moment the Fiji government has a military ruling party. The Tribunal noted that this government had been in power for a long time. He said that they are making up laws and the constitution to suit themselves, and if anyone puts in a complaint, they can be accountable. The Tribunal asked how this affected him specifically and he was silent. He said that he is looking at the bigger picture of the opportunities in Australia for his family and his children; being in Fiji has involved hard work and sacrifices. He had been brought up an orphan and he would like more opportunities, which are on offer in Australia.
·That he has been working the whole time he has been here and he has had involvement in a church council and congregation [and] now in [Church 1] (when asked what he has been doing in Australia). He has not been doing anything else since he has been in Australia. He said that his wife worked in Australia for a short time when they arrived, and then she was on maternity leave. She started working again last year, and she has also undertaken studies.
At the end of their evidence, when they were both asked if there was anything they wanted to add, the second applicant said they have no inclination to return to Fiji and they want to remain in Australia. At the end of the hearing, the Tribunal put to them that it does have concerns with the credibility of their claims. The Tribunal put to the applicants information pursuant to s 424AA of the Act 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.
At the end of the hearing, the second applicant said that he would like further time to provide information about the situation in Fiji in relation to issues such as crime and child trafficking. The Tribunal discussed general country conditions. The second applicant said that he would like to produce evidence of the robbery of his wife and his child (a new claim made at hearing). The Tribunal noted that both applicants had already stated that they could not get evidence of the robbery (relating to the first applicant). The Tribunal said, however, that it would grant additional time to provide further documents.
After the hearing the applicants provided a further support letter, from [a named individual from an organisation], [Town 1], dated 23 October 2022, addressed “To Whom it may Concern”. He states that the organisation oversees the spiritual, physical and mental wellbeing of its members. He “believes that [the applicants] left Fiji after the political upheaval or uncertainty in 2006” and are in Australia for their “safety and security and importantly a better future for them and their children”. He states that Fiji is still in a state of uncertainty in that freedoms are controlled or limited under the current leadership and the leaders are questionable, noting new legislation or bills are passed without due consideration by the citizens. He seeks that the Department consider what the applicants are seeking for their safety, security and, importantly, a better future.
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, the fact 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 424AA of the Act when required, concerns and inconsistencies which undermined their credibility and their claims about their circumstances back in Fiji. As noted above, the Tribunal noted that a s 424AA consequence in relation to information relevant to one applicant would adversely affect the other applicant.
Firstly, the Tribunal was concerned that a significant claim was made for the first time at hearing concerning the robbery and beating up of the first applicant in Fiji.
In this regard, at hearing both applicants made a new claim that had not previously been made in either their written protection visa application forms nor in the first applicant’s statement to the Tribunal. The first applicant told the Tribunal that there was nothing missing from her application form nor from her statement to the Tribunal; she later raised a claim that she and her daughter had been robbed (on separate occasions). She said that in [Suburb 1] she was returning home from work one evening and she got off the bus and was robbed when walking home. This occurred in 2015. They took everything she had on her (namely her handbag, her purse, bankcard, keycard and mobile phone). She said that she reported this to the [Suburb 1] police who took her statement, but they would not give a copy of the statement to her. She then said that in 2021 her daughter was robbed; she was returning from town on the bus and walking home and they took her handbag, which contained money, wallet, mobile phone and cash. Although given the opportunity, she made no claim, when telling the Tribunal what had happened, that she had also been beaten during the robbery; however, she told the Tribunal, when responding to information put to her pursuant to s 424AA after she had given her evidence, that she had been “badly beaten” during the robbery. She acknowledged that this claim was not in her statement to the Tribunal.
The second applicant said that there were no errors in his protection visa application form. Later, however, he said that his wife and daughter had been beaten on the way home and robbed of what they had on them. He acknowledged that these claims were missing from the first applicant’s statement. He recalled that his daughter had been robbed in 2021; he could not recall at all when his wife had been robbed.
The Tribunal put to both applicants pursuant to s 424AA of the Act that neither applicant had previously mentioned that the first applicant had been robbed and badly injured in Fiji, including that this was not mentioned in her statement to the Tribunal. The Tribunal put to them that it would think that if this had actually happened, they would have referred to this in the written material. The Tribunal said it was concerned that this omission until now may suggest that this incident had been made up to support their protection claims, and that the applicants are not witnesses of truth.
The second applicant did not comment or respond. The first applicant said that she asked for a copy of a statement from the police but they refused to give it to them; otherwise they could have used that as evidence. The Tribunal does not find this to be a persuasive reason as to why both applicants only mentioned this claim at the hearing. The Tribunal notes that they made numerous assertions in their protection visa application form without providing any evidence of those assertions at the time. The Tribunal considers that if the first applicant had been beaten up and robbed, the applicants would have mentioned this in their written materials.
While the Tribunal acknowledges the introductory paragraph in the first applicant’s statement to the Tribunal, and the RACS disclaimer at the end of the statement, the first applicant herself did not offer these matters as explanations for her omission of this matter in her statement.
The Tribunal also referred to s 423A of the Act, explaining that the Tribunal is required to draw an adverse inference about new claims or evidence if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, if it is not satisfied that the applicant has a reasonable explanation as to why the claim was not made or evidence was not presented before the primary decision was made. In response, the second applicant said that they had asked the police for evidence, but the police said they had lost it. The first applicant did not make any comment.
The Tribunal is not satisfied that there is a reasonable explanation as to why the applicants did not raise the new claim that the first applicant was robbed and beaten before the primary decision was made. Therefore, the Tribunal draws an adverse inference about the credibility of this new claim.
Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would, however, have drawn an adverse inference as to the credibility of this claim because the applicants only made this claim at the hearing and did not offer a credible explanation as to why they had not raised it earlier.
The Tribunal considers that the omission undermines the claim and the credibility of the applicants.
Secondly, the Tribunal was concerned with a new claim made at hearing by the second applicant (only) that the applicants had been denied assistance after the cyclone and flooding because they were SDL Party supporters. In this regard, the second applicant gave evidence to the Tribunal that the reason why they didn’t receive government assistance after the 2016 cyclone and flooding could have been because they were supporters of the SDL Party.
He said to the Tribunal that the area where they lived had been flooded and other people got assistance from the government. When the Tribunal asked why some were helped and some were not, he initially said he had no idea why this occurred; he then changed his evidence to say that it could be political or depend on which party you belong to. The Tribunal noted that he had stopped being a supporter of the party in 2006, so it did not understand why the government would target them in 2016 by not giving them flood assistance for being past supporters of an opposition party. He responded that they had “lived in obedience to the government” and although it is true that they had not been supporters since 2006, in his heart he was a supporter. He was unable to explain why this would mean that they would be denied flood assistance 10 years later, just saying that this was his “own thinking”.
The Tribunal put to the applicants pursuant to s 424AA of the Act that this claim now made by the second applicant had not been made in either of their protection visa application forms, nor in the first applicant’s statement to the Tribunal, nor had the first applicant made this claim in her oral evidence at hearing. The Tribunal put to the applicants that if this was a genuine belief or concern held by the second applicant, it would expect that this would have been mentioned in their written materials. The Tribunal said that it may find that this claim is not true. The second applicant asked for further time to respond and the Tribunal said that it would give him and the first applicant a break to allow them to discuss this. Later, however, the first applicant indicated that they did not need further time to provide their comment or response. She said that some others got help (for example some from the Indo-Fijian community) but they didn’t, so they speculated it must have been because they had supported the SDL Party. She said that they filled in forms to ask for assistance but they never got any response. When the Tribunal asked if they had chased this up, she said they couldn’t get though on the telephone. The Tribunal does not find her response to be a persuasive reason as to why this claim had not been mentioned earlier. If they were concerned that they had been denied assistance due to discrimination, the Tribunal would have expected the first applicant to mention this discrimination in her written materials (and oral evidence), but she did not do so. The second applicant did not seek to make any comment.
The Tribunal again referred to s 423A of the Act in relation to this claim. The second applicant said he thought it was mentioned in the written material. The Tribunal said that in the statement to the Tribunal it was written that they did not get any assistance from the government after the floods, but it was not stated that the reason for this was that they had been SDL Party supporters 10 years earlier. The Tribunal explained that s 423A of the Act was referred to in relation to the failure of the applicants to make this claim before their case was refused by the delegate. Neither applicant offered an explanation as to why this claim had not been made before their case had been refused by the delegate.
The Tribunal is not satisfied that there is a reasonable explanation as to why the applicants did not raise the claim that the applicants were or may have been denied government assistance after the floods because they had been SDL Party supporters before the primary decision was made. Therefore, the Tribunal draws an adverse inference about the credibility of this new claim.
Even if it did not draw an adverse inference by operation of s 423A of the Act, the Tribunal would have drawn an adverse inference as to the credibility of this claim because the second applicant only made this claim after their protection visa applications were refused by the Department, and the first applicant did not make such a claim to the Tribunal in her oral evidence until after this claim was put to her pursuant to s 424A of the Act.
The Tribunal considers that the above undermines the claim and the credibility of the second applicant.
Thirdly, the Tribunal was concerned with the second applicant’s failure to declare his first trip to Australia, and his return to Fiji, in his protection visa application form. At hearing, the Tribunal put to the applicants pursuant to s 424AA of the Act that Departmental movement records showed that the second applicant arrived on [date] January 2017 and departed on [date] March 2017, when he went back to Fiji. He stayed in Fiji until [date] March 2017, when he came back to Australia. However, the second applicant claimed in his application form that he had never been to Australia previously, and when asked if he had ever departed from Australia and re-entered, he said he had not done this. He also stated in the form that he had not returned to his home country since his first arrival in Australia. The Tribunal noted that his protection visa application form was undermined by the Departmental movement records and his failure to declare these matters in his form suggested that he had been prepared to tell untruths about his travel and stay in Australia, and his return to Fiji on [date] March 2017 indicates that he had no fear of harm in Fiji.
The Tribunal put to the applicants that it was concerned that this indicated that the second applicant was not truthful when making claims for protection and that his return to Fiji undermined his claim to face a real chance of serious harm or a real risk of significant harm. Neither applicant sought to comment on or respond to the information. While the Tribunal acknowledges that the passport stamps in the second applicant’s passport evidence his first trip to Australia, and that both applicants told the Tribunal about this travel, concerns remain that the second applicant made claims to the contrary in his protection visa application form, noting further that he told the Tribunal that the contents of that form were true. Further, both applicants did not seek to comment on these concerns. The Tribunal considers that the second applicant’s failure to declare his first trip to Australia and his willingness to return to Fiji, in his protection visa application form, undermines the claim that he faces a real chance of serious harm or a real risk of significant harm, and his credibility.
Fourthly, the Tribunal was concerned that the applicants gave conflicting evidence as to their intentions about whether or not they planned to remain in Australia. The first applicant told the Tribunal that when she was in Fiji, prior to coming to Australia on [date] May 2017, she had no intention of staying in Australia; she was just going to Australia for a visit, and then she was going back to Fiji. The second applicant, however, gave evidence that when he returned to Fiji from Australia on [date] March 2017, he discussed with the first applicant that there were all these opportunities for a better life in Australia, and they had decided to go to Australia and remain permanently. The Tribunal put this to the applicants pursuant to s 424AA of the Act, noting that if accepted this would indicate that the first applicant was prepared to tell untruths about her intentions in coming to Australia. In response, she said that the second applicant did tell her about the opportunities in Fiji but she had still intended to return to Fiji because of the children. The second applicant did not seek to make any comment. The Tribunal does not find the first applicant’s response persuasive. She did not tell the Tribunal that her husband had told her about all the opportunities in Australia when the Tribunal had earlier asked her about her plans when coming to Australia. The Tribunal had asked her whether, while still in Fiji, she had intended to stay in Australia, but she did not initially respond; she just said that once she was here, she saw that there were more opportunities here for her to care for her family and this made her stay. When asked again, she said that she had intended to return to Fiji; when the Tribunal put to her that her intention to return to Fiji after visiting Australia indicates that at the time, she did not face a real chance of serious harm or a real risk of significant harm, she did not respond to this and was silent. She then said that she changed her mind when she got here and decided to stay because of the opportunities this offered; she then said that she had thought of coming here and earning enough money to go back to Fiji and then applying for permanent residency with the other 2 children. The Tribunal considers that her changing evidence as to what she was thinking when she was in Fiji, in particular her failure to mention, when asked about her plans, that the second applicant had just returned from Australia and had told her about all these opportunities in Australia, undermines her s 424AA response.

The Tribunal considers that the above evidence indicates that the first applicant’s assertion about their intentions was not true, and that the second applicant returned to Fiji from Australia, told the first applicant about the opportunities here, and together they planned to travel to Australia claiming to be visitors, but with the intention of remaining permanently in Australia.
Fifthly, the Tribunal also considered that the second applicant’s delay in leaving Fiji, and her stated intention that she would return to Fiji after visiting Australia, indicated that she had no fear of harm in Fiji. It was put to both applicants pursuant to s 424AA of the Act that the second applicant’s visa was granted on 23 March 2017, but she delayed travelling to Australia for almost 2 months, travelling [in] May 2017. It was also put that her evidence to the Tribunal, that she intended to return to Fiji after just having a visit to Australia, indicated a lack of fear of harm in Fiji.
The second applicant responded by saying that they know, as a family, the difficulties they face in Fiji and the cost of living. The first applicant did not make any comment. The Tribunal considered the second applicant’s response but this does not explain why the first applicant delayed leaving Fiji and said that she was prepared to return to Fiji after visiting Australia. The Tribunal considers that this indicates that she did not have a fear of serious or significant harm, which undermines her credibility in claiming protection.
Sixthly, the first applicant’s assertions in her visitor visa application also caused concern. In this regard, the Tribunal noted that Departmental records indicate that the first applicant claimed in her visitor visa application form that her husband would be staying behind in Fiji while she came to Australia, and that this was an incentive for her to return to Fiji after her visit to Australia. This assertion, however, was undermined by the evidence of the first applicant to the Tribunal, namely that they had both planned to come to stay in Australia. This was put to the applicants pursuant to s 424AAof the Act.
In response, the second applicant said that because of what happened to him in 2006, there seems to be a trend of things happening to the family; he then referred to the robberies of the first applicant and their daughter. The Tribunal said that these were robberies; they did not appear to be part of a trend. He said that they reported the robberies to the police, and they didn’t receive a copy of any report nor any clear instruction about what was going on. The first applicant’s response was that she was badly injured, and the police didn’t assist her in the incident.
The Tribunal does not consider these answers to be responsive. The Tribunal considers that the evidence indicates that the first applicant was prepared to tell the Department untruths in order to obtain a visa, which undermines her credibility.
Finally, the Tribunal had concerns that the applicants only wanted to stay here because they considered that there were more opportunities here; not because of any fear of harm if they returned to Fiji. In this respect, it notes that when asked the reason why they did not want to return to Fiji, both applicants’ first reason was the difficulties of the cost of living; they also repeatedly said at the hearing that there were more opportunities in Australia than Fiji. Only after they had referred to the cost of living did they mention the claimed past harm in Fiji and a fear of the government.
The Tribunal put to the applicants that they had both said that they want the better opportunities on offer here, and while it understands this desire, it may find that they have made up their claims to fear harm and to have suffered harm in Fiji, so that they can stay in Australia. Both the applicants told the Tribunal that they prefer to live in Australia than return to Fiji. The Tribunal considers that the applicants’ focus on the cost of living in Fiji and the opportunities for them in Australia indicates that they wish to stay in Australia, and that they have been prepared to make claims that are not true, as a means of remaining here.
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 has carefully considered the support letter from Pastor [B] where he states that they informed him of their poverty-stricken life in Fiji which impacted upon their safety and well-being. There is no suggestion that they informed him of any harm or political involvement or targeting, nor is there any suggestion that he had direct knowledge of their circumstances in Fiji. The Tribunal noted that the applicants worked, owned a house, paid for the education of their children, and were able to afford to fly between Fiji and Australia, and the second applicant was able to travel back and forth between [Country 1] and stay there for a total of 3 months. The Tribunal put to the applicants that the letter just indicates what they have told the pastor, which does not make it true. They did not disagree with this. The Tribunal does not place weight on the pastor’s support letter as there is no indication that he has an independent source of information that the applicants were “poverty stricken” in Fiji.
The Tribunal noted that there was a letter from the applicant’s recruitment agency; it said that this did not appear to be relevant to the question before it and the applicants did not disagree. The Tribunal does not consider this letter be relevant.
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 also considered the photos, which were discussed at hearing. The Tribunal put to the applicants that the photos could be of anyone; it cannot see that the photos are of the second applicant. They did not comment, and the Tribunal gives these photos no weight.
The letter produced after the hearing from [Mr C] could be seen as supporting the claim that they face harm in Fiji (although it does not actually say this). However, this letter does not state how [Mr C] knows the applicants, and neither the letter nor the applicants themselves suggested that they were members of this organisation. The Tribunal notes that the author of the letter “believes” that the applicants left Fiji in 2006, which is inconsistent with their own claims that they left Fiji in 2017. In the circumstances, the Tribunal gives this letter no weight.
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 in, and awaiting them, in Fiji.
Findings on the applicants’ claims
The Tribunal accepts that the applicants are a married Fijian couple aged [age] and [age], and that they have 2 children in Fiji and 2 in Australia, and that 3 out of 4 of their children are 18 years or over. It accepts that they are indigenous Fijians.
On the basis of the adverse credibility finding, the Tribunal does not accept the applicants were or are politically opposed to the government nor that they were or are supporters of or involved with the SDL Party, nor that they distributed pamphlets nor attended meetings. The Tribunal does not accept that the applicants were ever imputed as SDL Party supporters nor harmed for that reason. Although it is prepared to accept that their house was affected by flooding during the cyclones and floods, it does not accept that they faced discrimination in relation to government assistance. The Tribunal also does not accept the assertion that the aunt’s land was taken nor that the applicants were removed from this land. As put at hearing, the applicants were able to purchase their own land, which they still own and there was no credible suggestion that this may be forcibly taken from them.
On the basis of the adverse credibility finding, the Tribunal does not accept the incident that they said occurred in 2006, nor does it accept that the photos provided show the second applicant after having been beaten by the military in 2006. The Tribunal does not accept that the applicants were located after curfew and were tortured by being pushed, shoved, kicked on the ground, spat on the face and verbally abused in Fiji by the military. It does not accept any claims that flow from this including that they felt that they could not trust anyone in the government so they could not share what had happened, or seek help, that they considered that they could not relocate, nor that they were not allowed to travel in Fiji or outside the country (noting also that the first applicant left Fiji legally once, and the second applicant left Fiji legally and he never suggested at hearing that on any other occasion he had left Fiji, it was done illegally).
The Tribunal is not satisfied that they have faced any harm because they are indigenous Fijians nor does it accept that the first applicant was robbed and beaten as claimed.
The Tribunal does not accept that the applicants have spoken out or felt like they had to keep quiet about the government, nor that they have any intention of speaking out against or acting against the government, because it does not accept that they have been or are politically motivated to do so (and not because of any fear of a lack of freedom of expression).
The Tribunal does not accept that the applicants genuinely believe that they face physical or verbal abuse or danger or that they will lose their lives for any reason.
The Tribunal put to the applicants that it is to have regard to the DFAT report on country conditions in Fiji (the DFAT Report)[4]. The Tribunal noted that worse economic or financial conditions compared to Australia, a lack of opportunities, general crime, or being affected by flooding in 2016 does not mean that they face a real chance of serious harm as refugees nor a real risk of significant harm. The second applicant said that it is true that what happened to him before (being beaten) may not happen again but there are many people coming here to work here because there is no employment in Fiji. The Tribunal put to the applicant that the DFAT Report does not say that there is no employment in Fiji, and it does not have country information to this effect.
[4] Extracts from the DFAT Country Information Report: Fiji, 20 May 2022 are set out in Attachment B.
The applicants were consistent that their daughter was robbed in 2021, and the Tribunal accepts that robberies occur in any country, and it is prepared to accept this occurred. The applicants did not suggest that this occurred for any reason other than general crime, and while the Tribunal accepts that this would have been a difficult experience for the daughter, and for her parents to hear about, the evidence indicates that this was a random robbery and it is not satisfied that this is evidence that the applicants face a real chance of serious harm or a real risk of significant harm due to crime in Fiji.
The Tribunal noted that having regard to the conditions in Fiji, if it does not accept their claims of past harm or political affiliations or crime (to the first applicant) or economic distress, then it would appear that they do not face a real chance of serious harm or a real risk of significant harm having regard to their profile and their circumstances upon return.
The Tribunal accepted that it may not be as easy for the applicants to earn money in Fiji compared to Australia, however, it has not accepted that they were previously poverty-stricken, and it has previously referred to their home ownership, ability to raise 3 children in Fiji, and their ability to engage in multiple occasions of overseas travel. The applicants are resourceful, they have worked in Fiji and in multiple jobs in Australia. Although they may not earn as much as in Australia, it is not satisfied that they will not be able to get some work between them to support them and their young child. The Tribunal does not accept that they would face a real chance of serious harm such as: significant economic hardship that threatens their capacity to subsist; denial of access to basic services, where the denial threatens their capacity to subsist; or a denial of capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist. In addition, the Tribunal does not accept that there is a real risk that any financial difficulty they may face amounts to significant harm.
The second applicant said that there is a lot of crime and child trafficking as a result of poor governance in Fiji. He had said that he wanted to provide evidence on this; the Tribunal noted that it had to consider their particular circumstances and whether they face a real chance of serious harm or a real risk of significant harm for such reasons. The Tribunal said that it was not aware of any information to suggest that their child would be trafficked; and it noted that they are not children, and they are the applicants. The Tribunal allowed extra time to produce more country information, however, no further country information was provided. The Tribunal does not accept that there is a real chance or real risk of serious or significant harm to the applicants as a result of crime or child trafficking.
The Tribunal has considered the country information provided by the applicants referring to treatment of prisoners, coerced confessions, a lack of assistance with cyclones, the government’s concerns about sedition, the opposition party and high-profile persons, and other matters. It has not accepted that they have an actual or imputed political profile as anti-government or pro-opposition. It is not satisfied that the country conditions in Fiji as referred to in the country information produced by the applicants, nor in the DFAT Report, means that either or both of the applicants face a real chance of serious harm or a real risk of significant harm in Fiji.
While accepting that the applicants have concerns about their financial situation in Fiji, and the lack of opportunities they believe they have in their home country, the Tribunal does not accept that the situation for them will amount to the applicants facing a real chance of serious harm for one of the 5 reasons referred to above.
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 Attachment 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. The Tribunal does not accept that they face a real risk of financial difficulties or difficulties for any reason amounting to significant harm (as discussed in Attachment A) in Fiji. It does not accept that they face a real risk of being significantly harmed by anyone. 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 either 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

ATTACHMENT 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). 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.
Attachment B – extracts from the DFAT Report
Recent History
2.4 Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s FijiFirst party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia.
…
Economic overview
2.7 The World Bank defines Fiji as an upper-middle income country…
Employment and welfare
2.18 Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries…
2.21 Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher…
2.23 iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support…
The security situation
2.34 Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives…
Race/Nationality
3.1 The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians...
iTaukei
3.10 iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.

[2022] AATA 4972

27 November 2022

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Procedural Fairness

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