1821389 (Refugee)

1821389 (Refugee) [2024] AATA 3109 (26 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1821389
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Sydelle Muling
DATE:26 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 April 2024 at 10:14am

CATCHWORDS
REFUGEE – protection visa – Fiji – opportunities for career promotion – expression of views regarding work conditions – political instability – possibility of a military coup – freedom of speech and expression – mental health – indigenous Fijian ethnicity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB (2013) FCR 505

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 19 July 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 18 April 2018.
The applicant appeared before the Tribunal on 18 March 2024 to give evidence and present arguments.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant is a [age]-year-old ethnic Fijian Christian female who was born in [Town 1], [Province 1], in Fiji. According to her protection visa application, the applicant resided in [Neighbourhood 1], in Suva from March 1998 to March 2000; [Neighbourhood 2] from March 2000 to August 2001; [Village 1], [Province 2] from September 2001 to January 2016; and [Neighbourhood 1], in Suva from January 2016 to March 2018. The applicant attended primary school from January 1985 to November 1992 and high school from January 1993 to November 1996. She completed [Occupation 1] school between March 1997 and March 2000. The applicant is fluent in Fijian and English. She worked as a [Occupation 1] for [Employer 1] in Suva from February 2000 to February 2018. The applicant departed Fiji legally [in] March 2018, arriving in Australia on the same day. Her husband, [number] sons and one daughter are residing in Fiji, as well as her parents, [number] sisters and [number] brothers.
The applicant presented her claims in her protection visa application, summarised as follows:
·She came to Australia as a tourist and to visit relatives and friends.
·The environment in Australia is very different from her home country as here she has a lot of rights and can speak openly and voice her opinions on any matters of concern to her, which is one of the main reasons she left Fiji.
·She felt the pressure from being suppressed and needed a break from the environment where her basic human rights were being restricted. The stress she was experiencing was affecting her health.
·She was [age] years old when the first military coup occurred in Fiji, which was followed by a further 3 or 4 coups. These experiences have been tormenting and distressing to her.
·She now has a sense of freedom that she never experienced in Fiji. If she goes back to Fiji she will continue to suffer psychological and mental stress and depression. Her family will continue to suffer because they take the brunt of her depression and stress, which manifests itself in physical and verbal abuse of her family.
·She experienced a lot of psychological and mental depression in Fiji because of difficult government policies put in place by the current government, including the government not recognising indigenous rights, the Land Bank which the government wanted to implement, no freedom of expression and discriminatory policies against the indigenous of the country.
·The Fijian government is responsible for her psychological harm because they do not want indigenous Fijians to be recognised as the first of people of Fiji. The cultural and traditional values of indigenous Fijians are not respected by the current government.
·She did not seek help as there are no organisations in place in Fiji to assist her.
·Her church community, relatives and friends were useful in providing assistance through sharing and counselling. The service they provided helped a little, but they were also afraid of talking against the government because they feared for their safety.
·She moved from the village to the city (Suva) with the hope the situation was going to be better and there were non-profit organisations to help her and her family. However, she realised moving would not solve the problem and the harm she was experiencing would only worsen because the social support safety net that is available in her community would not be there.
·If she returns to Fiji her basic human rights will be deprived. She will be reprimanded because she had commented and expressed her opinion against the government on social media. The psychological depression she had experienced over 12 years in Fiji will continue and will be worse and can result in her committing suicide and ending her life.
·She will be harmed and mistreated by the government. The government has not changed its stand and has continued to deprive people.
·Life in Fiji is very tense and people are afraid of what can happen when the election result is not favourable to the current government. This is very stressful for her and has been affecting her health.
·The authority will not be able to protect her because it is the government and authorities causing the problem and the harm she is experiencing.
·She relocated from her village to Suva and hoped the situation was going to be better, but it was not. The situation only got worse because she had no one to assist or turn to as her relatives were no longer around her.
The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application on 19 July 2018.
The applicant appeared before the Tribunal on 18 March 2024 and gave oral evidence about her circumstances in Fiji, reasons she left the country and why she does not want to return. The evidence will be discussed below, in the analysis and findings.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether there is a real chance that, if she returns to Fiji, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s nationality is not in issue. She travelled to Australia on a valid Fijian passport, a copy of which she provided, and states that she is a national of Fiji. The Tribunal accepts on the evidence before it that Fiji is the applicant’s country of nationality and receiving country for the purposes of complementary protection.
The applicant’s evidence in the hearing, when asked why she came to Australia in March 2018, was that after she visited Australia in 2017, she thought she could come here to work and provide a better future for her children by bringing her family to Australia. She stated that was her main purpose of coming to Australia. In response to the Tribunal’s question as to why she does not want to return to Fiji, the applicant stated that one of the reasons was because she had been working as a registered [Occupation 1] in Fiji for 18 years and whilst working, she had tried several times for different posts but had not been successful. She believes she had the ability and qualifications but was still not selected. The other reason was with the upcoming election she did not want to be part of what the effect of that election would be if the situation worsened so was thinking if she moved before that she would be safe. When asked what she believes will happen if she returns to Fiji now, the applicant responded that since the government has changed, things have settled and are calmer. When asked if she believes she will be harmed if she returns to Fiji, the applicant stated no. She confirmed that if she returns to Fiji, she does not face a risk of harm.
The Tribunal accepts the applicant has a long history of employment as a [Occupation 1] in Fiji and she came to Australia to further her career after she was not successful in securing different posts which she had applied for, despite her qualifications and extensive experience. The applicant spoke about being interviewed 3 or 4 times but not getting any of these positions even though she had 18 years’ work experience. She claimed that others were favoured based on their connection with people in high office. While the Tribunal accepts that the applicant was frustrated and aggrieved by the fact that she was not successful in securing the posts that she applied for in the past, the Tribunal finds that there is no information before it to suggest that the applicant was overlooked for these positions for any of the reasons identified in s 5J(1)(a). Further, the Tribunal does not accept that missing out on opportunities of securing other posts or being promoted constitutes serious harm.
The applicant spoke in the hearing about times when there were limited resources and staff for shifts when she was working as a [Occupation 1] in Fiji. She claimed that when “they” provided their opinions, suggestions and/or grievances to the bosses, these were not conveyed to more senior officers. While the applicant subsequently suggested that she held back in expressing her opinion, the Tribunal finds this assertion is not entirely consistent with her earlier evidence of raising such concerns related to her work conditions with her bosses. Further, the Tribunal notes that there was nothing in the applicant’s evidence to suggest that by her or others speaking up about their work conditions, this resulted in any adverse treatment or harm to the applicant. In particular, the applicant did not suggest that this may have impacted on her employment, including her applications for other posts. The Tribunal does not accept on the information before it that the applicant was prevented from expressing her views in relation to her work conditions. The Tribunal does not accept on the information before it that the applicant would be inhibited in speaking up about such matters in the future, if she was to return to Fiji, or that she would face a real chance of serious harm for this reason.
The applicant did not raise any particular concerns regarding her ability to obtain employment if she returns to Fiji, however the Tribunal discussed this with the applicant in the hearing. As the Tribunal put to the applicant, she had a lengthy career, spanning 18 years, as a [Occupation 1] with [Employer 1] in Fiji and has also worked in Australia as a [Occupation 1]’s assistant gaining further experience. In light of the applicant’s qualifications and employment history, the Tribunal does not accept on the information before that the applicant will be denied employment or the opportunity to earn a livelihood of any kind that would threaten her capacity to subsist, if she returns to Fiji. The Tribunal notes that when it put this to the applicant, she agreed.
The Tribunal has considered the other reason the applicant claimed she came to Australia, which was related to the election in December 2022 and the possibility the situation in Fiji may worsen following that election. As the Tribunal put to the applicant in the hearing, the political arrangements in Fiji have changed since she departed the country. The Tribunal discussed with the applicant information from a range of independent sources which reported that in the December 2022 elections, the FijiFirst Party failed to win a majority, ending Prime Minister Bainimarama’s 16 years in power.[1] The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three party coalition that includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP).[2] Despite some irregularities, international observers assessed the electoral process as being free and fair overall.[3] The transition of power has been reported as peaceful, with the military so far refusing to intervene.[4] According to a report prepared by DFAT in August 2023, there has been no significant political unrest or deterioration of government functions since the new government was elected.[5] The new government under Prime Minister Rabuka has committed itself to democratic government and governance including appropriate standards of conduct for Ministers and listening to a wide range of political views. It has also made a specific commitment to media freedom and the part it plays in Fiji’s democracy.[6] The Great Council of Chiefs was reconvened for the first time in 16 years on 24 May 2023, after being disbanded in 2007 by Bainimarama[7].
[1] ‘Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for International Policy), 14 February 2023.
[2] Fiji - In brief', Economist Intelligence Unit, n.d.
[3] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023, 9; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.11.
[4] 2 ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023.
[5] Department of Foreign Affairs and Trade, Country Information Request Report No 20230621135833, Fiji Country Information – Political update, 3 August 2023.
[6]
[7] Fiji's Great Council of Chiefs reconvenes after 16 years, promises racial equality - ABC Pacific
The information further indicates that several incidences where legal processes against critics of the former government which commenced prior to the 2022 election have been discontinued or dismissed since the change of government.[8] People who were deported, threatened or forced to leave Fiji for speaking against the previous government are being granted permission to return and they are doing so.[9] The government is also reported to be taking action against former officials who may have abused their powers while in office, including several high profile public office holders perceived as having strong links or were appointed by the Bainimarama government, who have been suspended and investigated including the former Police Commissioner, former head of Corrections services and former head of the Department of Public Prosecutions.[10]
[8] Department of Foreign Affairs and Trade, Country Information Request Report No 20230621135833, Fiji Country Information – Political update, 3 August 2023.
[9] 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023.
[10]
In response to the above information, the applicant stated that she believes the government has settled (although there are still political differences), and the situation appears to be alright at the moment. The Tribunal discussed with the applicant information regarding the stability of the current government. It noted that the head of Fiji’s military, Commander Major General Kalouniwai, refused to support calls from the now former Police Commissioner Sitiveni Qihilo to send troops into the streets after the election result was announced.[11] In mid-January 2023, the Commander issued a critical statement that the government was going too far too fast and was rebuked and has since publicly expressed support for the new government.[12] In June 2023, an unsourced document circulated on social media calling for a military takeover. FirstFiji denied responsibility and Commander Major General Kalouniwai dismissed rumours the military would intervene to overthrow the government.[13] In July 2023, the Commander reiterated a coup would not occur.[14]
[11] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023
[12] ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023; The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023.
[13] Fiji Military true to its role: Commander Kalouniwai’, Pacific News Service, 3 July 2023
[14] No coup says RFMF Commander', FBC News, 20 July 2023

While the Tribunal accepts there is a history of coups in Fiji, as the Tribunal put to the applicant in the hearing, considering the independent information which provides that the country has been politically stable in recent years with the elections in 2014, 2018 and 2022 being deemed credible and the outcomes characterised as broadly representing the will of Fijian voters; comments made by former Prime Minister Bainimarama following the 2022 election in respect of the outcome being the result of democracy and his legacy; and comments made by the head of the armed forces and head of the navy that there is no threat of a military takeover and affirming a commitment to work with the new government, the Tribunal finds the possibility of a coup, now or in the reasonably foreseeable future, to be purely speculative. The Tribunal finds the independent information discussed above indicates the changes in the political situation in Fiji since the December 2022 election remains steady. Accordingly, the Tribunal does not accept that the applicant faces a real chance of harm because of any political instability in the country, if she returns to Fiji, now or in the reasonably foreseeable future.
The Tribunal has taken into consideration the applicant’s evidence in the hearing that her protection visa application was written by someone else. The applicant confirmed that most of what was included in the form was not correct and what she told the Tribunal was the basis for why she was seeking protection.
Accordingly, the Tribunal does not accept the applicant’s claim in her protection visa application form that one of the main reasons she left Fiji is because she cannot speak openly and voice her opinions on any matters that concern her or that she will be reprimanded because she commented and expressed her opinion against the government on social media. The applicant’s evidence in the hearing was that she did not engage in any political activity or have any involvement in politics in Fiji or in Australia, apart from signing a petition which was circulated in 2019 amongst the Fijian diaspora in Australia regarding the last election in Fiji. More significantly, the applicant’s evidence was that she has not posted anything on social media of a political nature. The Tribunal has also taken into consideration the applicant’s evidence that she is very reserved and is the kind of person who stays in her “own zone”. The applicant spoke about how she does not want to express herself on social media because people talk and criticise, so she tries to keep away from it. In light of the applicant’s expressed reservedness and reluctance to publicly express herself particularly via social media, the Tribunal does not accept that the applicant would engage in such activities in the future or that she faces a real chance of serious harm for this reason.
With respect to freedom of speech and expression more generally, the Tribunal notes information it put to the applicant from the DFAT report on Fiji, which provides that Fiji’s constitution allows for freedom of speech, expression, publication, assembly, and association. However, DFAT reports that each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.[15] The United States Department of State, country information report provides that authorities use wide and vague provisions in the Public Order Act to restrict freedom of expression and association. The law includes criticism of the government in its definition of the crime of sedition and public opposition to government policy or proposals could provoke a ‘sharp response’.[16]
[15] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 27 September 2017, p.16.
[16] US Department of State, Country Reports of Human Rights Practices for 2022 – Fiji, 20 March 2023, p.4.
The Tribunal accepts that there are some restrictions on freedom of expression and public opposition to government policy or proposals may result in adverse attention from the authorities in some circumstances. However, the applicant’s clear evidence in the hearing was that she has not been involved in any public opposition to the government or any political activities and has not expressed her opinions, political or otherwise, including on social media. The Tribunal finds the applicant’s past conduct is limited to expressing to her bosses issues related to her employment conditions as a [Occupation 1]. The Tribunal finds on the evidence before it that the applicant’s lack of involvement in any political or anti-government activities is not the result of any modification of her behaviour due to a fear of harm. Accordingly, the Tribunal does not accept that if returned to Fiji, the applicant would engage in any political or anti-government activities, including posting material on social media, which would bring her to the adverse attention of the authorities. The Tribunal finds the applicant’s claims in respect of her expression of her opinions to not be credible. It does not accept the applicant was suppressed or her basic human rights were restricted in the past or that she faces such treatment if she returns to Fiji. The Tribunal does not accept that the applicant faces a real chance of serious harm for this reason if she returns to Fiji, now or in the reasonably foreseeable future.
The Tribunal does not accept the applicant’s claims in her protection visa application form regarding her health, in particular her mental health, are credible. The applicant confirmed in the hearing that she did not have any mental health issues in Fiji and that the claims regarding psychological and mental stress and depression and her being physically and verbally violent towards her family because of her alleged mental health issues was not correct. While the applicant did speak about her experiences in Fiji during the 2000 and 2006 coups, particularly the 2000 coup when she had recently started working as a [Occupation 1] and was pregnant with her [child], and her feeling of distress at the time, the applicant’s clear evidence was that this was not an ongoing issue and was experienced in 2000 because she was heavily pregnant. It therefore follows that the Tribunal does not accept the applicant experienced a lot of psychological and mental depression because of different government policies including the lack of recognition of indigenous rights and discriminatory policies against indigenous Fijians, implementation of the Lank Bank and no freedom of expression. The Tribunal does not accept that the applicant experienced psychological depression over 12 years in Fiji and this will continue and worsen and could result in her ending her life if she returns to Fiji. It does not accept that the applicant’s health was affected by pressure she felt from being suppressed and having her basic human rights restricted. Nor does it accept that she was psychologically harmed by the government because of their failure to recognise indigenous Fijians as the first people of Fiji. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm due to any alleged health issues, including mental health issues.
The Tribunal also does not accept the applicant’s claims in her protection visa application form based on her indigenous Fijian ethnicity. The Tribunal notes that the applicant did not raise or elaborate on this particular claim in the hearing in any way, suggesting this was amongst most of the information in the application form which was not correct, as she asserted in the hearing. In particular, the applicant did not suggest that she had been harmed in the past for reason of her indigenous ethnicity or that she fears she will be harmed for this reason if she returns to Fiji. The Tribunal has taken into consideration information it put to the applicant from the DFAT report which provides that that there is no official discrimination against indigenous Fijians. Indigenous Fijians are the majority ethnic group in Fiji and as such enjoy significant social, economic and political capital.[17] An earlier DFAT report noted that the overwhelming majority of government services are centralised and are provided on a non-discriminatory basis. Other services, including rural development, are provided through the Indigenous Fijian administration and advantage Indigenous Fijians or Rotumans. Much of the British-origin ‘native administration’ system, set up to protect Indigenous Fijian culture, continues modified and renamed, and is a form of positive discrimination. [18] In response to this information, the applicant noted that there are clashes between indigenous Fijians and Indian Fijians and other races on social media because indigenous Fijians are the owners of land, however she did not blame Indian Fijians as they too are born and raised in Fiji. She believes it was a misunderstanding of the two racial communities and that this was an ongoing thing. Taking into consideration the country information before it, the Tribunal does not accept that the applicant faces a real chance of serious harm because she is an indigenous Fijian.
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022 at paras 3.8 -3.10.
[18] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, at paras 3.11 -3.14.
Based on the above, the Tribunal does not accept that the applicant faces a real chance of being persecuted for any of the reasons outlined in s 5J(1)(a) of the Act. For the reasons provided, the Tribunal finds the applicant’s fear of persecution is not well-founded.
COMPLEMENTARY PORTECTION
As the Tribunal does not accept that the applicant is a refugee as defined in the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa), that is, whether 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 she will suffer significant harm as exclusively defined in s 36(2A) of the Act.
Having regard to the definition of significant harm in s 36(2A) of the Act, as set out in the attachment to this decision, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to her home in Fiji will involve a real risk of: being arbitrarily deprived of her life; having the death penalty carried out on her; or being subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
As discussed above, the applicant indicated in the hearing that her protection visa application form had been completed by someone else and that most of what was included was not correct. Accordingly, the Tribunal does not accept the applicant’s claims relating to her political opinion, mental health and indigenous ethnicity, as expressed in the protection visa application form, are credible.
The Full Federal Court held in MIAC v SZQRB that the ‘real risk test’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention decision[19].
[19] MIAC v SZQRB [2013] FCAFC 33 [246], [297], [342].
For the reasons provided, the Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Fiji, there is a real risk that the applicant will suffer significant harm related to her employment, any political instability following the last election, her alleged political opinion, mental health or her indigenous Fijian ethnicity.
The Tribunal accepts that it may be difficult for the applicant to find a job as well paid as what she has had in Australia or better than what she has had here. However, the Tribunal finds any economic disadvantage the applicant may experience on return to Fiji in the form of conditions of employment or disparity in wages does not amount to any of the types of significant harm defined in s 36(2A). Further, as the Tribunal put to the applicant, economic conditions do not generally enliven Australia’s protection obligations because they are focused on the intentional acts or omissions by third persons and requires the perpetrator to have an ‘actual, subjective, state of mind’.[20]
[20] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA34 Per Kiefel CJ, Nettle and Gordon HH at [27].
The Tribunal accepts that the applicant wishes to remain in Australia to further her career and to have her family join her here so they can have a better future. While the Tribunal accepts that the opportunity for career advancement in Fiji may be limited as compared to Australia, it does not accept that this, or her desire for her family to live in Australia, come within the complementary protection provisions of the Act as they do not constitute significant harm, as defined in s 36(2A) of the Act.
Based on the above, the Tribunal does not accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Fiji, there is a real risk that the applicant will suffer significant harm.
The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sydelle Muling
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.
…

[2024] AATA 3109

26 April 2024

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