1727068 (Refugee)

This matter concerned an application for a protection visa by a Fijian national. The applicant claimed that if returned to Fiji, he would face a real risk of significant harm due to being perceived as an outsider and outcast, his criminal record, and his adopted Western values. He also asserted that he would be unable to find employment or subsist, and would be subjected to harm by the police and military.

The court was required to determine whether the applicant had established a real risk of suffering significant harm, as contemplated by section 36(2)(aa) of the Act, which aligns with the "real chance" test for well-founded fear under the Refugee Convention. This involved assessing the applicant's claims of being an outsider, the potential for harm from law enforcement and military personnel due to his criminal history, and his ability to subsist in Fiji. The court also considered the mandatory considerations under Ministerial Direction No. 56, including relevant policy guidelines and country information assessments.

The court considered the applicant's evidence, including his protection visa application, interview with the delegate, and oral and written submissions. The applicant stated he had not lived in Fiji since childhood, possessed Western values, and had a criminal record for offences committed in Australia. He claimed that these factors, combined with his appearance including tattoos, would lead to him being ostracised and viewed as an outcast. He also asserted that Fijian police and military were known for brutality and would target him due to his criminal history, and that he would be unable to secure employment or accommodation. The court noted that the applicant had previously experienced mental and emotional harm, but not physical harm, during a short holiday in Fiji in 1995, where he felt uncomfortable due to being perceived as an outsider. The applicant also stated that he did not believe he could relocate within Fiji to avoid harm, as the country was small and his issues would follow him.

The court found that the applicant had not established a real risk of significant harm. While acknowledging the applicant's claims regarding his outsider status and potential difficulties in Fiji, the court did not find sufficient evidence to support a real chance of persecution or harm by state actors or a group in society. The applicant's past experiences in Fiji, while uncomfortable, did not demonstrate a real risk of physical harm. The court also considered the applicant's criminal record and the potential for negative attention from authorities, but concluded that this did not translate into a real risk of significant harm in the context of protection visa claims.