1815200 (Refugee)

1815200 (Refugee) [2023] AATA 1310 (1 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815200
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Tania Flood
DATE:1 February 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 February 2023 at 2:00pm
CATCHWORDS
REFUGEE – protection Visa– Fiji – political opinion – father’s profile as a former member of the Counter Revolutionary Welfare Unit – subsequent involvement in political activities in Australia – risk of the applicant being targeted by military personnel for this reason is remote – effective protective measures will be available –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65, 499
Migration Regulations 1994, 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 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 Home Affairs on 14 May 2018 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 11 March 2018. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Fiji on account of his father’s profile as a former member of the Counter Revolutionary Welfare Unit during the 2000 mutiny in Fiji and his own profile as a protection visa applicant.
The applicant appeared before the Tribunal on 2 November 2022 and 30 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, his father’s partner as well as [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Fiji for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed form Australia to Fiji there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a protection visa, the applicant is a [age]-year-old citizen of Fiji. He was born in Fiji in [City 1]. He is a Christian.
Before coming to Australia, he resided at [City 1] between 1987 and 2015, in [Country 1] from 2015 to 2016 as a part of [a] Deployment, and in [City 1] from 2016 to 2018. He completed primary school and high school in Fiji and studied a course [at] [a university] in [City 1], Fiji. His mother [and siblings] all reside in Fiji. His father [Mr B] is a citizen of and resides in Australia. From January 1993 to October 2014 the applicant was unemployed, from October 2014 to January 2018 he was employed as [a] soldier in the Fiji Military Forces in [City 1].
The applicant was granted a tourist visa on 21 July 2017 and subsequently entered and departed Australia three times before last arriving on [date] January 2018. He lodged an application for a protection visa on 11 March 2018. On 14 May 2018, a delegate of the Minister refused his protection visa application.
The applicant made the following claims on the statement attached to his visa application form:
The applicant indicates that he left Fiji on account of victimisation, due to the stigma of his father’s involvement with the Counter Revolutionary Warfare Unit during the 2000 mutiny in Fiji. His father was held captive, court martialled and sent to prison. His sentence was set aside by the High Court on appeal and he escaped to Australia where he was granted a protection visa.
The applicant states that Fiji is a dangerous place and with general elections looming many people fear bloodshed on the streets and the breaking of ranks within the military. He said the current commander is from the navy which is not always popular with the military.
Moving elsewhere inside of Fiji would not be practicable, claims the applicant, as he would need to resign from the military and with no alternative employment, it would arouse suspicion. He states that as a low-ranking, non-credentialled soldier the option of transfer is not open to him. He is wary of the treatment from middle line officers who could spread unfair information about him.
The applicant believes that if he returns to Fiji it will be presumed he has either overstayed his visa or applied for protection. Since he is former Military, people will know he has no formal qualifications and so could not have applied for a skilled visa. Also with his father having been granted protection they will guess he has done so too. He says he will be suspected of having made claims of mistreatment by the military or unlawful conduct by the military. He also thinks others would be jealous that he was living in Australia while they remained in Fiji.
The applicant claims he will be subjected to harm and mistreatment similar to what happened to his father. He said that those who inflicted harm on his father were soldiers whom he knew personally and were his friends.
Authorities would not protect the applicant, he states, as the police are under the command of the military and could thus not rely upon them to protect him from the military.
The applicant says he could not relocate inside of Fiji and relays a story of the military severely assaulting young men in a village [whilst] they were looking for his father. He says that Fiji is a small place and the military have ‘eyes’ everywhere.
Protection visa interview
No interview was held at the Department following lodgement of the protection visa application.
Documents submitted to the Department
-A copy of his passport # [deleted], issued [in] 2014 in [City 1], Fiji
-A copy of his passport # [deleted], issued [in] 2014 in [City 1], Fiji (colour, biodata page)
-A copy of his passport # [deleted], issued [in] 2014 in [City 1], Fiji (photograph colour, biodata page)
Documents submitted to the Tribunal
On 20 October 2022 the applicant made a further statement in support of his claims. The contents of the statement are summarised as follows:
He always dreamt of being an officer for the Republic of Fiji Military Force (RFMF).
His father, [Mr B], who is now an Australian citizen, was also a member of the RFMF and a former Counter Revolution Warfare (CRW) Unit that was disbanded in 2000 by Frank Bainimarama who is currently the Prime Minister of Fiji.
Twelve years later in 2012, he applied for Officer Cadet in the Fiji Army but he was not successful. He tried again in 2013 but was still unlucky. In 2014 he decided to apply again and this time he applied using his middle name instead of his [surname]. This time he progressed to the next level and was scheduled to attend an interview.
During his Officer Cadet training and the interview he continued to use the above name. He passed the interview on the first week of July 2014 and was required to present for [training]. Only candidates who passed [training] could proceed to the next level and undergo basic recruit [course].
One evening in the first week of July 2014 he was interviewed by [Mr C], the [Commander] at the time. [Mr C] advised him that he passed the [training] and would proceed to the next level of basic recruit [training].
On 31 July 2014 he did the basic recruit course at [a school]. Two weeks into the course he was called up by the team [leader]. He was questioned about why he was using the name [name] as his family name. He ordered him to start using the name [name]. For the remaining duration of the recruit course he used his family name [name].
On 24 October 2014 he passed the Basic Recruit course. The names of the successful persons were posted on a notice board but his name was not there. He approached [the team leader] to ask him why his name was not on the list. He responded that he knew nothing about it. He then approached [Mr C] who said he submitted all the cadet names to the [commander]and did not know what had happened and could not ask the Commander about it.
[Mr C] then offered him a chance to join the Regular Force which then joined [as] rank of private.
From 2015 to 2016 he served in [Country 1]. Once he returned to Fiji he resigned from the RFMF because he was not offered to undergo Officer Cadet training which he was qualified for. He came to realise that his father’s name, [was] the main reason they did not want him to progress up the ranks.
Frank Bainimarama, the Prime Minister, saw his father as an enemy and as a consequence of this he was victimised. Frank Bainimarama controls the Fiji army and does until this day.
On 2 November 2022 the applicant submitted [a] news article [in] which the applicant’s father is quoted in respect of his treatment at the hands of the Fiji Military and police following his involvement with the Counter-Revolutionary Warfare unit.
First Tribunal hearing
During the hearing the Tribunal discussed with the applicant his background in Fiji, the claimed incidents which occurred in Fiji prior to his final departure from the country and his reasons for fearing returning to Fiji. His testimony is summarised as follows:
He was born in [City 1] and is a Fijian citizen. He does not have the right to enter and reside in a third country.
He is currently in a relationship with an Australian permanent resident. She has five children and they are all living together.
He is a Christian and is an indigenous Fijian.
His mother and [siblings] live together in [City 1]. His mother worked for [an organisation] for ten or more years but he is not sure whether she is still employed. He said previously she was stationed in [a country] but due to COVID she returned to Fiji. He said his sisters do not work.
After school he completed foundation studies at [a university] and commenced a [degree]. He later applied to join the military as a cadet. Apart from the military he has not performed other paid work in Fiji.
He came to Australia because his father was a member of the CRW unit and he knew if he remained in Fiji he would be targeted by the military.
When asked when he realised that his father’s background was going to be problematic for him he said that it was during the second week of his recruitment in about August 2014 when he was instructed to use his correct surname – [name]. He said that from that time onwards he was looked upon differently because of his father’s record.
Noting that he had visited Australia three times previously in 2017 the Tribunal asked why he did not seek protection on those occasions rather than returning to Fiji each time. He replied that he had no idea about protection visas until recently. He said his first trip was after his return from the posting in [Country 1] and he came to see what Australia was like. He said he returned to Fiji and resigned from the military in August 2017 and then returned to Australia. He said that during the first trip to Australia in 2017 his father was living in [a city] and he was staying with a cousin in [a suburb]. He said that because of the distance he only had phone contact with his father during that visit.
The Tribunal put it to the applicant that it might not accept he knew nothing about protection visas given his father was granted such a visa and he remained in contact with him. He replied that he was concerned for his siblings in Fiji. He said he wanted to return to Fiji and follow the proper procedure to resign from the military. He said that if he did not do that there would have been repercussions for his siblings. He said the military would have gone to his village looking for him and previously people from his village were beaten by military officers because of his father’s record. That said he confirmed his sisters weren’t being harassed by the military but as [a specified reason] he felt a duty to protect them.
When asked how the military reacted upon his resignation he said that they questioned him in detail about what he was going to do. He said he told them he had decided to return to his village.
Noting that he returned to Fiji from [Country 1] in 2016 and last departed Fiji in January 2018 the Tribunal asked the applicant where he was residing in the intervening years. He replied that he was residing in [a] town about [number] miles from [City 1]. He said he was living there with a previous girlfriend. When asked whether he was working or looking for work during this period he said that he was travelling between Fiji and Australia. He added that he didn’t think he could work anywhere else in Fiji because the military would come looking for him. He said the only option would have been to return to the village.
When asked what harm he fears in Fiji the applicant stated that he is afraid he will be seriously beaten in the same manner as his father.
The Tribunal noted that his written claims indicate he was denied access to a higher military rank and that is why he decided to resign his position. He indicated that is correct. The Tribunal put it to the applicant that even if he was denied advancement because of his father’s record it is not apparent how this would amount to serious or significant harm. The applicant reiterated that his father was badly beaten in the past and he fears this will also happen to him.
The Tribunal put it to the applicant that there is no suggestion he was beaten by military personnel between 2014 when he joined the military and 2017 when he resigned. The applicant stated that as soon as he changed his name he felt he was monitored from then on. He said that from the second week of recruitment he started being treated unfairly. He said that a [officer] , who was the team leader of recruitment, came to him and started harassing him about using his correct surname. He was asked if his father is a [name] and when he said he was he was made to crawl a certain distance and crawl back for ten minutes. When the Tribunal stated that he has not mentioned such physical mistreatment until now he said that he didn’t think it was significant to mention at the time but now realises it is.
When asked if there were other instances of mistreatment he said that he was singled out during morning inspections and if ever his platoon made an error he was the person punished for it. He said that he passed the requirements to train as a Lieutenant but his name was omitted from the list of successful candidates. When he spoke to his commander about this he was told that his name was put forward along with all the other successful candidates.
When asked about the future harm he would encounter given he is no longer in the military the applicant stated that the military is still under the leadership of Bainimarama who was instrumental in the persecution of CRW members. He said that in 2019 Bainimarama came to [Suburb 1] and he attended a public protest against him. He said that during that protest Fijian spies were present and took photographs of the participants to send back to Fiji. In addition, he said he attended a ball on 20 May 2022 where Rabuka was the guest of honour. He said Rabuka is against Bainimarama and he was photographed talking to him. He said all those photographs of him at those events have been sent to Fiji and he fears for his life because of this. When asked how he knows such photographs were sent to Fiji he said that it is well known that agents accompany Bainimarama wherever he goes and photograph persons protesting against him.
When asked what role he played in the 2019 protest in [Suburb 1] he said he held up a placard by the side of the road along with others. He estimated there were 100-150 protestors present on that occasion. He said he was standing at the front and in good view of photographers. When asked if he has any documentary proof of his participation in that protest he said that he met his representative there but does not know if there are any photographs available to support his attendance.
The applicant stated that he is being monitored and the situation is worsening and he fears being harmed in future. When asked to explain what he means by being monitored he referred to the previous events outlined above, namely being punished and mistreated when he began using his correct surname in the military.

The applicant stated that Fiji is only a small country and there is nowhere to hide. He said the military will find him if he returns and take him to a military camp for interrogation because he has attended the protest against Bainimarama in [Suburb 1] and because they will know he has applied for a Protection visa. The Tribunal informed the applicant that the protection visa application process is confidential and in any case many Fijians have come to Australian and unsuccessfully sought protection and not been harmed on return.
The Tribunal asked the applicant how he was able to get through the initial recruitment phase into the military using a different surname. He was also asked which identity documents he was required to produce at the time. The applicant replied that he first applied using his correct surname but thereafter he used his middle name as his surname and was successful. He said he held some tertiary qualifications at the time and noting this the Tribunal pointed out those qualifications would have been in the name of [name]. The applicant conceded that it was likely known from the early stages of his recruitment that his correct name was [name] and that despite this he was eventually successful in his application to join the military. The Tribunal put it to him then that his father’s record doesn’t seem to have been a relevant factor back then otherwise he would never have been accepted in the first place. He said he thinks that using his middle name got him through to the interview stage and then they liked what he presented and he was accepted. However, he said they continued to refer to him by his middle name.
The Tribunal asked the applicant if he was subjected to any mistreatment by the military after his resignation. He said that as soon as he resigned he began travelling to and from Australia.
The Tribunal asked the applicant why he thought he would not be able to work anywhere in Fiji. He said that he fears the military will come knocking on his door and he will receive the same treatment as his father. He said this will be because of his father’s record and also because of his protest actions in Australia.
The Tribunal put it to the applicant that DFAT reports that people involved in previous coups have already received their punishment and many have enjoyed successful careers afterwards. The Tribunal noted DFAT also reports that people involved as recently as the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. The applicant responded that the current government is an unjust government. He said he does not agree with the report. He added that there is an upcoming election in Fiji and if Bainimarama loses the election he will instruct the military to return him to power.
The Tribunal also put it to the applicant that DFAT reports it is not aware of any official or societal discrimination against returning failed asylum seekers and that many Fijians have cultural and family links to Australia and that returning in such circumstances would be unlikely to be seen as unusual or attract attention from authorities. The applicant argued that his case is different due to his father’s profile.
Noting a reference in the material before it to Fiji being a dangerous place the Tribunal pointed out that DFAT reports Fiji is generally regarded as a stable and secure country with a low crime rate and low risk of terrorism. Further, the Tribunal noted DFAT’s observation that the last two elections were judged to be credible by observer groups. The applicant referred again to his father’s role in the CRW Unit and argued that the current head of government is the same person who ordered the killing and imprisonment of CRW soldiers in the past.
At the request of the applicant the Tribunal heard oral testimony from his father and his father’s partner by video link. [Mr B] informed the Tribunal that he was granted a Protection visa in 2010 on the basis of his former CRW involvement. He said his family were victimised because he was part of the CRW Unit. He said his son was especially victimised for trying to get ahead in the army because of his family name. He said that when he was imprisoned his daughters, and his son, were taken to his wife’s village and raised there out of sight.
[Mr B] informed the Tribunal that he has never returned to Fiji but that some of his family members have visited him in Australia. He said that when they returned to Fiji they were searched and put under surveillance. When asked to expand upon that he said that his daughter came to Australia on a school trip in 2009 and when she returned she was questioned about whether she met with her father. Similarly he said a cousin of his came to visit and he was stopped at the airport and interviewed in 2011. He said his cousin was also asked about him and what they discussed during his trip. He said the latest he heard is that some soldiers who came to Australia for training were also asking about him and where he is. He said that fortunately he lives in a small community in Queensland.
Ms [D], the partner of the applicant’s father, said that she has been in a relationship with [Mr B] since 2014 and she has come to know his story well. She said she has a strong belief the applicant will be at risk of harm if he returns to Fiji. She also referred to the monitoring of family members who have visited them previously. She raised a particular incident in which a relative came to Australia on a visa [in] 2015/2016. She said that on the day this relative left Fiji military police and civilian police attended his house and made allegations that he had come to Australia to conspire with [Mr B]. She said the officers raided the house and made threats against the family. She said she knows all this because the wife of the relative in question phoned her while her husband was enroute to Australia. She said she believes that relative is still in Australia but they have had no contact with him.
[Ms D] stated that tensions always rise is an election year. She said they get phone calls from other political parties in Fiji trying to gain [Mr B]’s voice. She said [Mr B]’s case is still clear and present. She said his sentence was deemed unlawful and was overturned and an order was made that 1 million in reparation be paid to him, which was not. She stated that even if Bainimarama is not re-elected he retains many networks in the military and the police. She also stated that [Mr B]’s village received no government support after cyclone Winston. She said the attitude towards the [name] gentlemen hasn’t died down.
The applicant’s representative submitted that it is common practice in Fiji to use abbreviations of names and to cut down the length of names. He also submitted that the protest against Bainimarama in [Suburb 1] was significant because it is the first time he was publicly sworn at in front of federal police. He said he spoke at that protest and confirmed he met the applicant at that protest.
Post-hearing submissions
On 18 November 2022 the Tribunal received a post-hearing submission made on the applicant’s behalf by his representative.
It is submitted that the applicant’s protection claim is based on a genuine fear of persecution by association of him being the offspring of a member of a social group, namely the Counter-Revolutionary Warfare Unit (CRW) which took part in the November 2000 mutiny and resulted in them being severely beaten and tortured and some even murdered.
It is submitted that the Tribunal raised a valid point that even though the applicant used his middle name instead of [name] some of those in authority knew his true identity. It is submitted that this may explain why the applicant was singled out from his unit and mistreated and ultimately dropped from the Officer Cadetship program despite passing the entry requirements.
It is submitted that the then President of the Selection Board, Colonel Kalouniwai is now Commander of the Fiji Military Forces and it’s a wide held belief in Fiji that he is a Bainimarama ‘yes’ man and installed to support and keep Bainimarama in power.
As to the applicant freely travelling in and out of Fiji to Australia in 2017-2018 it is noted again that the applicant only resigned from the military in August 2017 and he wasn’t knowledgeable about applying for a protection visa in Australia until during his last trip which is why he only lodged the application on 11 March 2018. It is further submitted that it was not an easy decision for the applicant to make to seek protection in Australia but something which took some 8 months before he was confident and comfortable to do so. It is argued that some people might have jumped at the opportunity on the first occasion whilst others may take longer. It is argued that the applicant’s personal circumstances must be taken into consideration and it should not be implied that his delay in seeking protection somehow questions the genuineness of his claims. It is stated that there could be a host of reasons for the delay, including but not limited to ensuring his family in Fiji weren’t going to be negatively impacted by his decision, collating relevant evidence to assist his claim and making sure he was doing the right thing.
As to why it will be known that the applicant applied for protection whilst in Australia it is submitted that the Australian High Commission is always busy with people waiting outside the gate at opening times and those people are noticed. Not all visa applicants are approved and there is a lot of resentment from those who weren’t approved against those who were. It is also common knowledge amongst Fijians that most people getting visas are those applying for Visitor visas, which is usually multiple for 1-2 years but only valid for stays of up to 3 months at any one time. Those who come to Australia for work or study are easily identified whether because of their reputation or some other distinguishing feature. When anyone stays in Australia for longer than 3 months its widely presumed they’ve applied for protection in Australia and to apply for protection you would have had to make defamatory and atrocious claims against the Bainimarama government. Because of whom the applicant’s father is it is understandable why he fears returning after being away for some 4 years because he doesn’t know what kind of innuendos and damning false allegations have been made against him in his absence.
As to the applicant’s fear of returning to Fiji because of his subsequent involvement in political activities in Australia it is repeated that the applicant attended a Fundraising Dinner for the People’s Alliance Party (PAP) in Sydney, with former Fiji PM Sitiveni Rabuka [and] a protest against Fiji PM Bainimarama [in] September 2019. It is submitted that PM Bainimarama’s own vulgar words used in an attack on an opposition member in the Fiji parliament were used back at him at the protest and this protest was widely covered by the Fiji Sun which is widely known as the propaganda arm of Bainimarama’s government for more than a decade. It is further submitted that it is a well-known secret amongst the Fijian Community in Australia that there are Bainimarama supporters here who are constantly sending back information to Fiji regarding the actions of Fijians participating in political activities against the government.
It is submitted that the article filed on the day of the hearing titled ‘Chief on the run’ explains in part the murders of the applicant’s father’s fellow CRW soldiers. These deaths remain unresolved today and it is one reason why Bainimarama executed his coup in December 2006 because investigations were coming to a head and he knew he was going to be charged for these murders. It is submitted that Bainimarama will resort to anything to remain in power after the 14 December 2022 election because he knows, if he loses, he is going to jail.
It is submitted that the police and judiciary have been compromised and that there have been recent political prosecutions resulting in jail sentences for minor discretions.
It is submitted that Fiji will be a very dangerous and unsafe place leading up to the general election in December 2022 and if Bainimarama’s party loses the general election, which the polls seem to indicate, another coup is very likely to save Bainimarama. That volatile situation will be the last place for the applicant to return to because there is no knowing what will happen to him and his potential death will be covered up together with other atrocities in the fog of war.
It is noted that [Ms D] is an independent witness in that she is not a blood relative of the applicant. She gave relevant testimony in respect of what happened on the occasion when one of [Mr B]’s cousins came to visit him and upon his return to Fiji.
It is submitted by the representative that he has been unable to locate the decision of [Mr B]’s court martial and sentencing which were dismissed upon appeal in the High Court of Fiji. However, it is stated that the representative managed to locate the decision in [Mr B]’s civil claim for wrongful imprisonment which remains unpaid to date as referred to in the witness testimony.
Attached to the submission is a photograph of the applicant attending the PAP Fundraising dinner in Sydney and Fiji Sun news articles dated 15, 16, 17 September 2019 referring to the unseemly use of swear words by a group of protesters against the visit of Bainimarama in Sydney. A Times article titled ‘Chief on the Run’ and dated 10 December 2006 is reattached. A further news article is attached titled ‘Statement: ODPP responds to Qiliho’, ODPP 12 November 2022.
A copy of a decision of the High Court of Fiji declining to strike out entirely the applicant’s claim for damages for a period of unlawful imprisonment.
On 23 January 2023 the Tribunal received a further submission on behalf of the applicant. It is submitted that:
The Coalition Government in Fiji was sworn in on 24 December 2022 and started off on very shaky grounds. No single political party won the required 28 seats to form government in its own right. Prior to the 1^st parliamentary sitting on 24 December to elect the Prime Minister the SODELPA management board narrowly decided to coalesce with the People’s Alliance Party/National Federation Party Coalition. However, when it came to the vote for the Prime Minister 1 member of the coalition crossed the floor and voted for the former Prime Minister resulting in the new Prime Minister Sitiveni Rabuka winning with 28 votes and the former Prime Minister Bainimarama with 27 votes.
The RFMF Commander Major General Ro Jone Kalouniwai’s public comments on the military’s concerns on government’s major undertaking in its first 100 days of office wasn’t received well. His statement caused much consternation and caused the Minister for Home Affairs Pio Tidoduadua to issue a statement saying the Commander has called FBC expressing his concerns of the FBC inciting and misrepresenting what he supposedly said. The Minister for Home Affairs met with Commander Kalouniwai and they jointly issued a statement saying they’re going to work together.
The Prime Minister Rabuka shortly after being elected promised political prisoners including George Speight and others who are currently serving prison sentences for their involvement in the 2000 coup, will be eligible for parole or to submit applications for pardons or remittance before the Mercy Commission. The Prime Minister was forced to backtrack on his promise to release George Speight and his group anytime soon clearly showing the influence the former Prime Minister has over the military and his incessant hatred towards George Speight and all those involved in the 2000 coup, including the CRW soldiers, still hasn’t dissipated even after more than 22 years.
Additional actions taken by the Coalition could destabilise it if not handled properly. The Supervisor of Elections, Mohammed Saneem was suspended on Thursday 19^th January by the President, upon the recommendation of the Constitutional Offices Commission (COC) pending investigations into complaints of misbehaviour, warranting his removal from office on full pay. The Police Criminal Investigations Department has resumed investigations into former Attorney General, who had earlier been placed on a Police Watch Order last year, when he went overseas. There’s also growing speculation, at the COC’s next sitting they will be recommending to the President, the suspension of the Commissioner of Police and Commissioner of Prisons, pending investigations of complaints made against them.
The former Prime Minister Bainimarama continues to tell his supporters he won 26 seats the largest number of seats won by a single political party and many of his supporters aren’t able to comprehend why he failed to secure the necessary seats to form government.
The former Prime Minister continues to reside at the official Prime Minister’s residence and the Coalition isn’t in any hurry to ask him to vacate. The Prime Minister is even offering his predecessor rent free government quarters which gives a glimpse into the immense pressure the Coalition is working under whilst trying to project a strong façade and not cause any concern to the public.
The representative notes that he himself is well-known objector of the Bainimarama government and has not returned to Fiji for more than 20 years. He states he was interviewed by [media] after last year’s general elections but he has no plans of returning to Fiji anytime soon and still greatly fears for his own personal safety.
It is submitted that because of the current uncertain and fluid political environment in Fiji today it would be unsafe and very dangerous for the applicant to return. It is submitted that the former Prime Minister and Attorney General are vengeful and not afraid to inflict revenge and serious injury on their perceived enemies.
Attached to the submission are various news articles written in the wake of the latest national election.
On 29 January 2023 the applicant’s representative submitted two news articles titled ‘Two Senior Fiji Politicians to Face Charges over Labasa Mutiny in 2000’ dated 14 February 2003 and ‘Fiji Court Martial Describes Convicted Mutineers as a Menace to Society” dated 30 January 2003
Second Tribunal hearing
The Tribunal discussed with the applicant the fact that the general election held in December 2023 has resulted in a change of government and a new Prime Minister, Mr Sitiveni Rabuka. The Tribunal acknowledged the reportage of recent concerns voiced by Major General Kalouniwai, the commanding officer of the RFMF, about sweeping changes announced by the new government but noted news reports provided in submissions indicate that he has subsequently confirmed the military has no intention of taking over government and has pledged to work together with the current government. The Tribunal put it to the applicant that these developments appear to reduce the risk of harm he fears from the military under the former control of Mr Bainimarama and who he claims is vengeful toward former members of the CRW.
The applicant acknowledged the change of leadership but maintained that the military remains loyal to the former Prime Minister. He stated that the current government has an intention to release political prisoners including George Speight and former members of the CRW and that if this happens it will inflame Mr Bainimarama and the military. He also maintained that the political situation in Fiji remains very unstable and volatile due to the fact the ruling coalition of parties have only a 1 vote majority. He stated that it is his father’s belief that the situation remains too uncertain for him to return. This opinion was repeated by the applicant’s representative and a witness called during the second Tribunal hearing, [Mr A], a former parliamentarian under a previous Rabuka led government and close friend of the applicant’s father.

The Tribunal put it to the applicant that a news report provided in submissions indicates the new Prime Minister has publicly stated that the 2000 coup leader George Speight will not be released from prison anytime soon following rumours to that effect circulating on social media. The applicant replied that the Prime Minister made that statement as a result of the comments made by the Major General Kalouniwai.
The applicant was asked how the possible release of political prisoners would impact him personally and he repeated the claims made previously about his mistreatment in the military. He stated that if he returns to Fiji he will be required to serve as an army reserve member if called upon to do so. He said he fears he will be subjected to the same treatment his father endured by the military and that the military will harm him for raising allegations against them in his bid to secure protection in Australia. The applicant stated that most of his father’s enemies are in the military and before the election his father posted many comments against the former Prime Minister.
The Tribunal put it to the applicant that he previously claimed to have a personal association with the now Prime Minister and that it could be inferred from this that he could access protection at the highest level in Fiji if he were to face harm on return. The applicant repeated his opinion that it is not safe to return to Fiji in the current climate.
At the request of the applicant the Tribunal heard testimony from [Mr A]. He stated that he believes the applicant’s claim for protection is valid because of his relationship to his father. He also maintained that the political situation in Fiji remains volatile and he opined that Mr Bainimarama is doing everything he can to return to power. He stated that Mr Bainimarama has murdered and tortured people when in power and has a lot to answer for and is therefore scared. He said that former commanders of the military also made assurances there would not be any coups and yet it happened. He maintained that Mr Bainimarama still has close connections in the military and with only a 1 vote majority in parliament anything can happen. The Tribunal asked the witness whether the applicant could seek protection from the current government if he returns to Fiji and is threatened by the military. He replied that he doesn’t think protection is guaranteed.
After the hearing the applicant’s representative provided a transcript of an ABC radio news piece dated 3 November 2006 titled ‘Forget about coup: Teleni’. This indicates that the acting military commander at the time, Esala Teleni, also falsely provided public assurances that a coup was not envisaged at the time.
FINDINGS AND REASONS
Country of nationality
The applicant provided a copy of his Republic of Fiji passport to the Department at the time of application which verifies his claimed identity and nationality. Based on this documentation the Tribunal accepts the applicant is a national of Fiji.
Claimed past harm

100. The Tribunal found the applicant to be a generally credible witness and his testimony in respect of his claimed past treatment in the military and his father’s profile is supported by documentary evidence and the equally credible oral testimony of his father and his father’s partner in Australia.
101. The applicant claims and the Tribunal accepts that his father served in the Fijian military and was a member of the CRW Unit that was disbanded in 2000. It is further claimed and accepted that his father was physically harmed, imprisoned and later released by court order for reason of his involvement with the CRW and that on this basis he was granted protection in Australia.
102. The Tribunal accepts that the applicant aspired to a military career himself. The Tribunal accepts the applicant may have used his middle name to secure an entry interview after previously failing to reach that stage using his father’s name. However, the Tribunal considers it likely, based on the applicant’s oral evidence that military personnel were aware of his true identity from the interview stage given his need to present identification and copies of his education qualifications.
103. The Tribunal is also prepared to accept that the applicant may have been treated unfairly by certain military personnel, including being scapegoated for his unit’s failings, unfairly targeted for physical disciplinary action, and denied progression to officer training. The Tribunal accepts that this may have been due in part to discrimination based on his father’s history.
104. The Tribunal accepts the applicant resigned from the military in August 2017 because he felt unable to progress within the military for reason of his father’s background.
105. Notwithstanding the above, as discussed with the applicant during both hearings the Tribunal is not persuaded that the treatment he received in the military, despite it being arguably unfair, amounts to serious harm as described in s.5J(1)(5)(a)-(f) or significant harm for the purposes of s.36(2A).
Will the applicant suffer serious physical harm and/or be detained or killed by the military if he returns to Fiji now or in the reasonably foreseeable future?
Father’s membership of the CRW Unit
106. The applicant claims he will suffer serious physical harm and/or detention or possible death at the hands of the military if he returns to Fiji because of his father’s former membership of the CRW.
107. Based on the available evidence the applicant was in the Fiji military for some three years from 2014 until 2017. As discussed with him during the first hearing, he succeeded in gaining entry to military training despite that it is likely his true identity was known to the military from the interview stage. Further, during both hearings the Tribunal noted that despite that he encountered some discriminatory treatment he was nevertheless able to remain in the military after his initial training and he was later deployed by the Fiji military to [Country 1]. Based on the available evidence he was not assaulted or tortured or subjected to serious physical harm in that time despite that there were opportunities for the military to harm him in this way if they were intent on doing so. Ultimately, the applicant resigned from the military of his own free will.
108. Furthermore, according to the applicant he resigned from the military in August 2017 and then commenced travelling between Fiji and Australia. When the Tribunal queried his willingness to return to Fiji multiple times despite claiming to fear harm there he indicated that he wanted to handle his resignation from the military correctly before finally departing Fiji in order that his remaining family members would not suffer any consequences for his actions. The Tribunal accepts his reasoning but notes that the Departments records show he travelled to and from Fiji a further two times in 2017 after the date of his resignation from the military before his final arrival in Australia in January 2018. There is nothing before the Tribunal to support that in the months following his resignation from the military he was at risk of being detained and nor did he present evidence to support that the military have visited his family in Fiji to urge them to reveal his whereabouts or encourage him to return to Fiji. According to the applicant the worst thing that happened upon his resignation is that he was questioned about his future plans.
109. In the Tribunal’s view there was ample opportunity for the military to seriously harm the applicant while he was serving in the military and in the time following his resignation if they were motivated to do so yet this did not happen.
110. The applicant has since claimed that the new government is intending to release political prisoners including the former coup leader George Speight and members of the CRW and that this will inflame the military because the former CRW are their enemies. Available news reports do not support that such a move, if it is intended, is likely anytime soon[1]. In any event, while some military personnel might continue to harbour resentment against former members of the CRW, the Tribunal is not persuaded that this extends wholesale to their family members or that family members will be targeted in the event imprisoned former CRW members are pardoned. The Tribunal has found above that in the applicant’s case he may have experienced some discriminatory treatment while a serving member of the military but was not seriously harmed by military personnel in the past due to his father’s profile despite there being opportunity for this to occur. Based on this past experience, the Tribunal is of the view that even if former CRW members are released from prison at a date in the future the likelihood of the applicant being harmed in the manner feared is remote.
[1] ‘No Release Soon for George Speight: PM’, Fiji Sun, 20 January 2023
111. The Tribunal has considered the argument that the former Prime Minister is particularly vengeful against former members of the CRW and fears being prosecuted for any involvement he may have had in the mistreatment of former CRW officers now that he is no longer the Prime Minister and in control of the military and is seeking to regain power. The Tribunal accepts, based on the news reports provided in submissions[2], that the newly formed government is examining the behaviour of various officials, both present and past, including the Supervisor of Elections, the former Attorney General and the Commissioner of Fiji Corrections Service and that the former Prime Minister’s actions while in government could potentially come under scrutiny at some point. That said, the Tribunal considers the news report[3] provided in submissions in respect of the new Prime Minister’s attitude to the timeframe for rehousing Mr Bainimarama indicates a conciliatory approach and an intention to avoid inflaming political tensions. In any event, the Tribunal is not persuaded on the available information that Mr Bainimarama and/or the military are planning to orchestrate a coup in the foreseeable future. While it is accepted that Fiji has endured several coups in the past (2 in 1987 and 1 in 2006) country reports indicate that the country has been politically stable in recent years with the past few elections being deemed credible. The outgoing Prime Minister, Mr Bainimarama, when commenting on the outcome of the 2022 election stated “This is democracy and this is my legacy”[4] and as noted above, the Major General Kalouniwai is quoted in various news articles[5] saying there is no threat of a military takeover and affirming a commitment to work with the government. The Tribunal accepts the applicant, his representative and the witness Mr [A] might think otherwise but as discussed with them during the second hearing the Tribunal considers their views in respect of Mr Bainimarama’s future intentions are currently speculative and not supported by current country information. The Tribunal accepts the ABC radio news segment from 3 November 2006 submitted by the applicant’s representative lends support to the argument that public statements such as those made by Major General Kalouniwai are not necessarily reliable. However, the Tribunal’s opinion in this case is necessarily based on the circumstances which prevail in 2023 and the information currently available to it.
[2] “SOE out of office: President suspends Saneem on COC’s advice’, Fiji Times, 20 January 2023; ‘CID to resume investigation of former Attorney General’, FBC News, 20 January 2023; ‘AG Siromi Turaga Confirms: Complaints Against Corrections Chief’, Fiji Sun, 23 January 2023
[3] ‘No hurry for the former PM to vacate the official residence as the PM has given him time – Wise’, 18 January 2023
[4] ‘Sitiveni ‘Rambo’ Rabuka confirmed as Fiji’s new prime minister’, Aljazeera, 24 December 2022
[5] ‘[source deleted]
112. The Tribunal accepts the RFMF has a reserve force[6] and that a soldier of the Regular and Territorial Forces shall on the expiration of his period of enlistment be transferred, if below the age of 55, to the Reserves.[7] While it is not entirely clear whether this transfer applies in the event of a person who resigns from the military the Tribunal is prepared to accept the applicant’s evidence that he would be considered a member of the Reserves on return to Fiji and subject to call up should that occur. The Tribunal accepts that any active involvement in military operations could place him in closer proximity to military officers who might remember and oppose his father on account of his former role in the CRW. However, the Tribunal does not consider this would be any different to the situation which existed while he was an active member of the RFMF. As found above the Tribunal is satisfied that any discriminatory conduct he might have experienced then was not of the type which could be found to be serious harm. The Tribunal is not persuaded that any similar treatment he might encounter serving in the Reserves in the future on account of him being his father’s son would be any different.
[6] Fiji Military, REPUBLIC OF FIJI MILITARY FORCES ACT 1949 - Laws of Fiji
113. Based on the available evidence and given what has occurred in the past and in the recent national election, the Tribunal is not satisfied that the applicant will be physically harmed and/or detained or killed on return to Fiji merely because his father was a member of the CRW.
Protest activity in Australia and support for the then opposition
114. During the first Tribunal hearing the applicant argued that his risk of harm has increased since he has been in Australia because he attended a protest in 2019 against the Fijian Prime Minister, Mr Bainimarama and was photographed providing support to a prominent opponent of Mr Bainimarama, Mr Sitiveni Rabuka, at a fundraising dinner in Sydney recently.   According to the applicant his attendance at these events would be known to the Fijian government and he maintains he fears for his life for this reason particularly given his father’s background.
115. Based on the available evidence the Tribunal accepts the applicant was present at the claimed events in Australia and despite some reservations about the claimed degree of surveillance of Fijian citizens abroad, it is prepared to accept the possibility that his attendance at those events may be known amongst members of the military and/or the former government. In forming this view the Tribunal accepts that Fiji is a small country and that the 2019 protest against Bainimarama in Sydney received quite some publicity in Fiji.
116. Notwithstanding the above, as discussed with the applicant during the second hearing the Tribunal considers these actions in Australia will be viewed sympathetically by the newly formed government and will not attract any adverse government attention if he returns to Fiji. The Tribunal has considered the submissions made in respect of Mr Bainimarama’s strong connections to the military and the continuing threat of harm to the applicant at the hands of military personnel loyal to Mr Bainimarama for his public display of contempt for the former Prime Minister. However, the Tribunal is not persuaded that there is sufficient evidence to support the applicant will be targeted for this reason on return to Fiji. According to the applicant he has only ever attended one protest against Mr Bainimarama and this occurred almost four years ago. Since then, a general election was held in Fiji and Mr Bainimarama is no longer the Prime Minister or nominal head of the armed forces. In the Tribunal’s opinion the risk of the applicant being targeted by military personnel for this reason is remote even taking into account the fact his father was a former member of the CRW.
117. Also, the Tribunal finds the applicant’s evidence in respect of his association with the now Prime Minister, Sitiveni Rabuka to be significant. The applicant has provided evidence depicting him showing his support for Mr Rabuka by way of a photograph of the two together at a pre-election dinner in Sydney. This evidence indicates the applicant is known to the new Prime Minister. Indeed the applicant presented this evidence as proof of the harm he might suffer in Fiji on account of his association with the now Prime Minister. In view of this evidence, the Tribunal considers the applicant is likely well placed to seek protection from the authorities in Fiji in the unlikely event that members of the military attempt to harm him for his participation in the protest event against Mr Bainimarama in Sydney in 2019. While it is submitted that the applicant’s protection against harm from military personnel cannot be guaranteed the Tribunal remains satisfied that effective protective measures will be available to him in Fiji if he requires it.
118. The Tribunal notes the applicant’s evidence that his father actively opposed and criticised the former Prime Minister in social media posts during the recent national election. The Tribunal is satisfied that this will not place the applicant at risk of governmental harm on return to Fiji given the change of government.   In the unlikely event it presented a problem with some military personnel who remain connected to Mr Bainimarama the Tribunal again notes the above circumstances indicate he would be well placed to obtain protection against such behaviour.
119. Having considered the claims and evidence and given the recent change in government in Fiji the Tribunal is not satisfied that the applicant will suffer serious harm for reason of protesting against the former Prime Minister in Australia and/or expressing support for the current Prime Minister in Australia and/or in connection with his father’s social media activity.
Failed asylum seeker
120. The applicant claims that returning to Fiji as a failed asylum seeker additionally increases the risk of him being detained, arrested, physically harmed or killed by the military and/or other state authorities on return to Fiji.
121. During the first hearing the Tribunal discussed with the applicant the confidential nature of the protection visa process and DFAT’s advice that it is not aware of any official or societal discrimination against failed asylum seekers returning to Fiji as well as DFAT’s observations about the close personal and cultural contacts between Fiji and Australia which facilitate frequent movement of citizens between the two countries. In response to this observation the applicant reiterated that his case is different because of his father’s profile.
122. The Tribunal has considered the submissions made on the applicant’s behalf regarding possible assumptions about him seeking protection in Australia given the length of time he has remained in Australia in comparison with normal visa grants. The Tribunal is prepared to accept this possibility. However, the Tribunal has placed weight on DFAT’s advice and considers there is no objective basis for finding that the act of applying for asylum in Australia places him at greater risk of harm than other returnees despite his father’s background and his attendance at events in Australia. Further as discussed with the applicant during the second hearing the Tribunal considers the new government of Fiji is likely sympathetic to persons who sought protection in Australia while the country was under the rule of Mr Bainimarama.
123. The Tribunal is satisfied the applicant will not be detained or arrested by either military or state authorities on return to Fiji for reason of him seeking asylum in Australia. As to him being physically harmed or killed by individual military personnel for raising claims detrimental to their reputation there is no independent evidence before the Tribunal to support this and the Tribunal does not accept this will occur on the applicant’s testimony alone.

124. The Tribunal notes and accepts the witness testimony of the applicant’s father and partner in respect of the questioning of relatives who have visited them in Australia on return to Fiji. The Tribunal accepts that the former government may have had an ongoing interest in the applicant’s father on account of his involvement in the CRW and the unresolved civil action of his father against the state over his imprisonment in connection with the events of 2000. However, there is no evidence before the Tribunal to support that any of those relatives were subjected to any harm. While the Tribunal considers it unlikely given the change of government that the applicant will be subjected to similar questioning on return the Tribunal is not persuaded on the available evidence that such questioning if it did occur would lead to him being physically harmed.
125. The Tribunal accepts the applicant’s father may have an unresolved civil action for wrongful imprisonment underway but for the reasons outlined above it is not persuaded that this will result in the applicant being harmed on return to Fiji. In any event, the available evidence does not suggest that the applicant’s father is actively pursuing a resolution to the matter from Australia and nor is there any evidence to support that he is likely to return to Fiji anytime soon to do so. Indeed, the applicant has maintained throughout that his father is of the view that it is unsafe to return to Fiji.
Other claims
126. For completeness the Tribunal notes the applicant’s reference to being unable to work anywhere in Fiji for reason of the military continually searching for him. As can be seen from the above the Tribunal is not satisfied that the applicant will be targeted by the military on return to Fiji for the reasons claimed and he has not claimed an inability to find employment for any other reason. Additionally, based on his oral evidence the applicant’s mother and [siblings] are living in [City 1] and there is nothing before the Tribunal to suggest he would be unable to reside with them and/or obtain some support from them while he seeks to re-establish himself in Fiji.
127. The applicant’s reference to Fiji being a dangerous place is acknowledged but based on the country information referenced above the Tribunal does not accept that the general security situation poses any risk of harm to the applicant on return to Fiji.
128. It has also been claimed that certain people in Fiji may be jealous of the applicant’s ability to remain in Australia for several years while they could not. The applicant has not particularised this claim in any way and in the Tribunal’s view it is speculative at best. In any event the country information referenced above shows there is a significant movement of people between Fiji and Australia for a variety of reasons and there is nothing before the Tribunal to support that people are targeted in Fiji for this reason.
129. Having considered the applicant’s claims individually and cumulatively, and for all the reasons outlined above, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm at the hands of the military if he returns to Fiji now or in the reasonably foreseeable future for the reasons claimed including his father’s profile as a former CRW Unit member and/or his father’s political activities in Australia; his own protest activity in Australia against the former government and Prime Minister, his attempt to obtain protection in Australia and Fiji being an unsafe place to return to. Accordingly, the Tribunal finds the applicant does not have a well-founded fear of persecution in Fiji and does not satisfy the criteria at s.36(2)(a) of the Act.
CONCLUDING PARAGRAPHS
130. 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). For the same reasons already articulated the Tribunal is not satisfied that there is a real risk the applicant will suffer harm on return to Fiji for the reasons claimed. In the unlikely event he is threatened by military personnel who hold a grudge against him because he protested against their former commander Mr Bainimarama or because his father has publicly criticised Mr Bainimarama on social media in Australia, the Tribunal considers his association with the new Prime Minister will afford him access to effective state protection such that there is not a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk that he will suffer significant harm. Therefore, the applicant is not 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

133. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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 1310

1 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice