1822451 (Refugee)

1822451 (Refugee) [2022] AATA 4387 (21 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1822451
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Genevieve Hamilton
DATE:21 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 September 2022 at 1:16pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – altercation with government officials in 2015 – bauxite mining – climate change effects – communal farming – environmental concerns – capacity to subsist – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 April 2018. The delegate refused to grant the visa on 23 July 2018.
The applicant appeared before the Tribunal on 19 September 2022 to give evidence and present arguments.
Criteria for a protection visa
Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s.36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)), or on ‘complementary protection’ grounds (s.36(2)(aa)), or be a member of the same family unit as such a person.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)). The persecution must also involve systematic and discriminatory conduct.
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).
A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
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.
Claims and evidence
In his protection visa application the applicant said he was born in [Location 1], [Province 1], Fiji on [date] and travels on a Fijian passport. He lived mainly in that [location] until he came to Australia. His mother and siblings were living in [Location 1], he has a grandfather in Sydney. He speaks, reads and writes English and Fijian, and is a Fijian citizen. He has no other citizenship and has never travelled outside Fiji before. His occupation in Fiji was as a semi commercial farmer in [Location 1].
The applicant said he left Fiji in fear of his life. He was not safe there due to the political situation as he is not pro-Government. He had spoken against the government about matters in his district and a government official abused and threatened him. It was no use to seek protection in Fiji, the system was corrupt and even the Human Rights Committee Director was a puppet for Bainimarama. Nor was it any use to relocate considering that Fiji is a very small country. The applicant could be taken in for questioning, abused, harmed and even killed.
The applicant subsequently married and has two children. It appears that they are on separate bridging visas and have not been included in his application.
In a letter in support of his applicant said:
As I am the only bread winner in my Family, my wife, [Ms A] looks after our two kids at home at our address mentioned above, (daughter) [Child B] who was born on the [date] and (Son) [Child C] who was born on [date].
The main purpose of my application to the protection visa is my family, especially my kids security from my country of birth, Fiji, future endeavours and the establishment of my career here in Australia, currently in [Industry 1] in [Australia].
Fiji is highly politically corrupt which is a big effect on life style, education, violence and the many unsustainable and unsuccessful education level which is concerning and disappointing despite the dictatorship of this so called democratic government.
I have a good career here at my current [job], earning over $140,000.00 a year which I have a long term plan to live and work in Australia to educate my kids, help the economy and at the same time, support my family and relatives who are struggling back in Fiji.
My kids have the best opportunities here especially in [Australia] to education, community services, and career wise in [Industry 1] which if they were to go back to Fiji, will never be able to access any basic necessity as we have here but led in the increasing poverty, unemployment and struggle for basic daily livings.
The applicant submitted news reports about police and military brutality in Fiji, and bauxite mining he said which was polluting the environment near his village. He said:
Climate change effects on my village that’s affecting food and main resources to survive on for basic daily livings.
Please see attached picture of my village of how close it is to the ocean. Given todays modern effect of climate change, it has been a great impact and devastating to the rising of see level and the effects of pollution from the Chinese company who has been doing bauxite mining.
One article was a report of the [Province 1] chief commenting on the environmental concerns resulting from bauxite mining.
The applicant also adverted to the general security situation in Fiji which he said was bad for his children, and rising unemployment, poverty and corruption concerns.
The applicant supplied a strong character reference from his pastor, another from [Dr D] of [College 1] (for which he volunteers) and a letter from his village headman also commending his character and describing how extreme weather events made life very difficult for farmers in the village.
At the hearing the applicant said that in fact one of his sisters is an Australian citizen living in [Australian Town 1]. Two brothers live in Sydney as their wives are Australian. Two brothers and his oldest sister have also sought protection, and the youngest sister lives in Suva with her husband.
The applicant said his father passed away when he was small, other relatives in the villages helped his mother, and he grew up to be a farmer ([specified produce]) and also logged timber and fished. He was now working as a [Occupation 1] subcontracted by [Company 1].
The applicant said that a Chinese bauxite mining business was given unoccupied land that the villages used to plant on, which reduced their farming space, and that pollution from the mine was affecting the waterways they fished in. In 2015 he had an argument with visiting officials from the Environment Department about this. They abused him verbally. He did not have a formal leadership role in his village, had never otherwise been involved in political activities and after that incident he was left alone.
The Tribunal put to the applicant that he did not appear to be at risk of serious harm due to his political opinion, and that although life would be clearly harder for him and his young family if he returned to Fiji, they did not appear to be at risk of not being able to subsist.
[Mr E], who is a colleague from the applicant’s workplace, attested to the applicant’s strong work ethic and community involvement. He argued that Fijian asylum seekers, if returned to Fiji, were assumed to have criticised the government and could get taken to prison. The Tribunal observed that it the country information did not indicate that returned asylum seekers were being harmed in Fiji. [Mr E] referred to community violence in Fiji exacerbated by poverty, and also to the problem of police and military brutality. Political opponents were being thrown out of the country.
DFAT Country Report on Fiji contains the following information relevant to the broad claims made by the applicant:
…
Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s FijiFirst party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia.
…
The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
…
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low.
…
Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court.
The Constitution sets out the mandate and functions of the Fiji Human Rights and Anti-Discrimination Commission (FHRADC). …
According to a 2020 article by The Guardian, the majority of the complaints received relate to violence in prisons or at the hands of police, but the Commission does investigate other human rights complaints. Critics claim that the FHRADC is underfunded and chooses complaints to investigate based on its budget and political considerations.
…
DFAT is aware of allegations of police harassing members of opposition parties. ... The events described above have been directed at high-profile people within the opposition.
…
Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.
According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.
Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.
Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses. In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident.
A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest.
With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube. Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them.
…
DFAT is not aware of any official or societal discrimination against failed asylum seekers. … Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.
FINDINGS AND REASONS
Based on the information in his application, the Tribunal finds that the applicant is a Fijian national.
With regard to the refugee criterion, the Tribunal accepts that the applicant had an altercation with government officials in 2015 over the granting of a bauxite mining permit on what was regarded as communal farming land, and the related economic and environmental concerns. It is not satisfied that the applicant then or now faced a real chance of serious harm in relation to this matter. He was not bothered by the authorities afterwards and has no other political or leadership profile. Any economic disadvantage relating to the mine would not be directed at him, and is not, on the evidence before the Tribunal, sufficient to amount to a denial of the capacity to subsist.
It was suggested that the applicant would be assumed by the Fijian authorities to have criticised the Government in the course of applying for a protection visa. The country information indicates that there is no real chance of serious harm in being a returned asylum seeker.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his political opinion.
The applicant did not claim to fear persecution for any of the other refugee reasons. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm for the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
Having concluded that the applicant does not meet the refugee criterion the Tribunal considered the application of the complementary protection provisions. As the Tribunal has already found that there is no factual basis for the applicant having a real chance of serious harm in relation to the claims discussed above, similarly it finds that he does not face a real risk of significant harm, as defined, in relation to those claims.
While reports of police and military brutality in Fiji are alarming, the applicant has not claimed that he is of any adverse interest to the military or the police and as such, any risk of him being harmed by them is assessed as no more than speculative. Similarly, the crime rate in Fiji is generally low and the applicant did not make a case that he faces a particular threat of violence from within the community. The Tribunal acknowledges that life is challenging for villagers in Fiji, especially considering their vulnerability to environmental damage and weather events, but the information does not support a finding that the applicant and his immediate family face a real risk of suffering significant harm of the types referred to in s 36(2A).
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) or 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.
Genevieve Hamilton
Member

[2022] AATA 4387

21 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice