1823898 (Refugee)

[2023] AATA 1776

1823898 (Refugee) [2023] AATA 1776 (22 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1823898

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Peter Vlahos

DATE:22 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 22^nd March 2023 at 4.55PM.

CATCHWORDS
REFUGEE – protection visa – Fiji – race – Rotuman – particular social group – elderly people – elderly people with no support networks – individuals with significant back injuries – has been in Australia for more than three decades and has no ties with Fiji – access to healthcare and pension – age and injury would cause great hardship if forced to return – integration into the Australian community – unique and exceptional circumstances – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 46A, 57, 65, 417, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Cheng Shi Hai v MIMA (2000) 201
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa on 23 September 2016. The delegate refused to grant the visa on the basis that it did not meet the requirements of s.36(2) of the Act.

3. The applicant appeared before the Tribunal on 7 March 2023 to give evidence and present arguments. The Tribunal did not receive any oral evidence from third parties.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case is whether Australia has protection obligations in respect of [applicant name]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality and identity

12. Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal,[1] and in the absence of any evidence to the contrary before the Tribunal, the Tribunal accepts and finds that the applicant is a national of the Republic of Fiji and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of this evidence the Tribunal further accepts the applicant’s identity as claimed.

    [1] Fijian Passport Reference no [number] issued on [date] 2018.

    BACKGROUND: the Applicant’s migration and visa history

13. In 1990 (date not provided) the applicant arrived in Australia aboard the maritime vessel [Ship 1]. On 23 September 2016 the applicant made his first contact with the Department and submitted an application for a Temporary Protection Visa (TPV). On 10 November 2016 the applicant attended an identity interview.[2] On 13 September 2017 the s. 46A (2) Application Bar was lifted by the Minister and the applicant was permitted to make an application for protection visa. On 15 September 2017 the Department advised the applicant, and his TPV application was backdated to be valid to 23 September 2017. On 19 February 2018 the applicant was granted a Bridging visa ‘C’ (Subclass WCC-030) in association with his TPV application. On 13 May 2018 the applicant made a pre-interview submission.[3] On 14 May 2018 the applicant attended a TPV interview with the Department.[4] On 7 June 2018 the Department sent to the applicant a letter (adverse information) to provide an explanation pursuant to s. 57 of the Act.[5]

    [2] [Department file number deleted] 

    [3] [Department file number deleted]

    [4] [Department file number deleted]

    [5] [Department file number deleted]

    The Applicant’s claims for Protection

14. The applicant’s claims for protection, including those raised at the interview with the Department, and evidence provided by the applicant in support of their claims are contained the Department File no. [number]. The applicant’s claims for protection are summarised below:

    TPV application:

    ·The applicant had been living in [Country 1] during the time of the Fijian coup in 1987. Following the expiration of his residency rights, and without family support, he decided to come to Australia. He stowed away illegally on [Ship 1], arriving in Melbourne in 1990.

    ·With the help of a crew member, he bypassed immigration control.

    ·The applicant fears his age and time spent away from Fiji will prevent him from being able to subsist, should he return.

    Identity Interview:

    ·The applicant threw away his Fijian passport after arriving in Australia

    Pre-interview submission (13 May 2018):

    ·The applicant seeks to ‘regularise’ his immigration status.

    ·The applicant fears harm from the Fijian government as an ethnic Rotuman.

    ·The applicant fears harm as a member of the following particular social groups: Elderly people in Fiji; Elderly people in Fiji with no support networks; individuals in Fiji with significant back injuries.

    ·The applicant has lived outside of Fiji since the mid-1980s and will be unable to receive any financial assistance from the Fijian government, should he return to Fiji.

    ·The applicant will be unable to access adequate healthcare, should he return to Fiji.

    ·The applicant no longer knows anyone in Fiji and will be unable to receive any support.

    TPV interview (14 May 2018):

    ·Fijian people would hurt him because of his injury.

    ·The applicant is unable to return to Fiji due to his age and injury.

    ·There is no one to support him in Fiji and he does not have any money.

    Post-interview submission (23 May 2018):

    §The Fijian government’s move towards privatised healthcare will preclude the applicant from receiving adequate health care following his back injury in 2012.

    Response to adverse information (06 July 2018):

    §The applicant has sent money to people in Fiji, whom he either met in Australia, or knew before in Fiji, but is not in a position to rely on them for support, should he return to Fiji.

    §Discrimination faced by Rotumans amounts to persecution.

    §While the applicant has earned superannuation, he no longer has any savings left, as demonstrated by an outstanding energy bill, supplied by the applicant (to the Department).

    EVIDENCE AT THE HEARING

    Applicant’s Personal background

15. The applicant was born on [date] on the small Island of Rotuma where he grew up. He is the eldest of five siblings, including three sisters and one brother. The applicant’s father worked as a [Occupation 1] on Rotuma but later decided to assist his children’s education and decided to move to Suva so that his children could attend “Bible school.” The applicant’s father was employed as an [Occupation 2] for the Fijian [government]. The applicant’s father was himself educated at the [named] School in [Suva].

16. The applicant is not sure and made no claims about his exact lineage and his father’s status within the Rotuman community. However, he does know that he is descended from Rotuman chiefs and that the applicant’s family originates from [one] of the original districts of Rotuma, each ruled by a chief. The applicant’s father did not engage in the communal tensions which he considered as “synonymous with the tribal structure”[6] and “advocated against what he saw as the illegitimacy of tribal rule”[7] and instilled in the applicant strong Christian values.

    [6] see, AAT File, Written Submission, 10 February 2023, Clothier Anderson, Migration Lawyers, at p.3

    [7] Ibid

17. With the family’s move from Rotuma to Suva, the applicant’s father secured approximately [number] acres of crown land on lease. This land was worked into a productive [Product 1] plantation which was intended as a retirement plan for the applicant’s father. The applicant recalled the effect that World Bank contract had on the family business which was in favour of primary producers like the applicant’s father. The family business operating well, the family sent the applicant to [Country 1] in 1986 in order to seek out contracts for new sales and to investigate the production methods of [processed Product 1].

18. The period the applicant was away from Fiji, the political situation in Fiji deteriorated. The 1987 coup d etat staged by Lieutenant Colonel Sitiveni Rabuka, ended the reign of the sitting Prime Minister and caused the many other institutional changes in Fiji – including establishing Fiji as a republic. The applicant recalled that his father had told him that in order to pacify ethnic tensions that were increasing at that time between ethnic Indian and Fijian natives, his father was compelled to return the family planation back to the government of Fiji.

19. At the time of the applicant’s father’s death and the 1987 coup, his youngest sister was in [Country 2] studying, while the rest of his family, his mother, two sisters and brother, remained in Fiji. Fearing the developing volatile situation, the applicant’s family planned their exit from Fiji. The applicant’s youngest sister remained in [Country 2]. His other [sister] also travelled to [Country 2]. A year after the coup, the applicant’s eldest [sister], left for [Country 1] to be with her husband and later sponsored the applicant’s brother to migrate to [Country 1]. Later, the applicant’s mother migrated to [Country 2], and by 1990 the applicant had no family living in Fiji.

20. The applicant told the Tribunal that he tried to make a life in [Country 1]. Life was difficult and he found himself unable to make ends meet. He then decided to stowaway on a vessel, the [Ship 1]. At the time he had no knowledge of the vessel’s intended destination. The Tribunal noted his comment in his statutory declaration:[8]

    I was looking for a place to wash when one of the workers came in and found me. He saw the blood and asked if I was ok. He asked if I was a stowaway. I said yes. I never lied about what I was doing. He brought me towels and took me to the rooms. He directed me about when customs would come on board and what to say to them. He gave me a false address to use if I was asked, but no one asked

    [8] see, AAT File, Applicant’s Statutory Declaration dated 10 February 2023 attachment to Clothier Anderson, Lawyers Written Submission.

21. Later in Melbourne, this ‘friend’ (from the boat) offered the applicant a place to stay with his own family in NSW. The applicant subsequently stayed with this friend’s family, and it was during this time the applicant met his wife (Ms [A]). The two formed a relationship and were married [in] December 1990.

22. Following his marriage, the applicant was able to find employment and overtime accumulated his identification documents – which included a marriage certificate, a Tax File Number, a credit account and, later, his driver’s license. Following his separation from his wife in 2001 and his redundancy from [employer], the applicant travelled north, working in a variety of jobs throughout the Northern Territory and Western Australia over several years. The applicant’s work history is mixed – partly work as a rural labourer and [Industry 1] work which spread from [Western Australia] to far North Queensland and throughout Victoria and NSW.

23. By 2005, the applicant decided to travel to [Town 1] with a friend to work on a [Product 2] plantation. His employer assisted the applicant and his friend with accommodation, allowing both to remain on the property and the applicant has remained living with his employer since, though his friend left for England.

24. At [Town 1] the applicant worked for seven months, doing a combination of [Industry 1] work and work on the [Product 2] plantation before choosing to travel to [Town 2] to do seasonal [work]. This pattern of employment would continue for the next seven years, until 2011 when he commenced working for [Employer 1] doing mainly [Industry 1] work. After a short period of work for [Employer 1], the applicant suffered a significant back injury [in] December 2011.

25. Through this trying period, suffering from his back injury and trying to deal with it, the applicant found solace in his faith. Due to this faith and commitment to the Church, enhanced by his acceptance within the community at [Town 1], the applicant tried to regularise his immigration status. The Tribunal noted from the information submitted, the applicant’s ‘ties with the Church strengthened.’[9] Through these ties, the Tribunal has been told that the applicant has gained the support of his community in his attempt to set in a proper manner his immigration status.[10] This support is evident to the Tribunal by the documents provided supporting the applicant, describing him as a good member of the [Town 1] community and an active member of his parish. Moreover, the Tribunal noted the applicant’s wish which he expressed with great sincerity stating, that “for the support he has been shown by the Australian community” he “now wishes nothing more than to give back to that community.”[11]

    [9] see AAT File submission, Clothier Anderson – applicant’s statutory declaration, 10 February 2023

    [10] Ibid, see written submission

    [11] Ibid

26. The Tribunal was told that the applicant’s back condition has ‘gradually improved’, and he was granted a bridging visa and permission to work and is now employed. In October/November 2021, the applicant commenced employment with [Employer 2] as a process worker. However, this employment was cut short because in March 2022, the applicant was involved in car accident which severely damaged his knee. The applicant in his statutory declaration states the following:[12]

    [11] During the months waiting for my surgery, I suffered a lot. I spent more time lying down than standing and walking because of the pain around the fractured area.

    [12] I asked my neighbours to move my bed from my bedroom to the living room, so I could be closer to the kitchen and dining room because it was difficult for me to move around. I did my best and I had pain medication. I could stand a little, but after a short time, the pain came back. I had to be careful when I moved to ensure the bones didn’t touch each other because that caused me excruciating pain. I couldn’t walk with my feet flat. I needed to walk leaning forward to take the pressure off the fractured bone.

    [13] The pain in my knee has caused the pain in my back, from my previous injury, to come back. When I stand, my back has to do more to support my injured knee, and it is causing more pain in my back and my other knee.

    [12] Ibid

27. The Tribunal was told that the applicant underwent surgery in December 2022, which was successful. However, the applicant said that his recovery is a long process because of the applicant’s age ([age]-years-of-age). Furthermore, the applicant told the Tribunal that due to his limited mobility and different movement patterns while suffering with his knee injury, his back pain has returned. The applicant still has prepared meals delivered to him at his home because the pain he is suffering does not allow him to access the supermarket or to cook for himself.

28. Asked about his family and circumstances in Fiji, the applicant said that he has no remaining ties to Fiji. The applicant said that his entire family have long since departed Fiji and they too, have not returned. The applicant said that his mother and brother have now passed away and his sisters remain living in [Country 1] and [Country 2]. The applicant confirmed for the Tribunal when asked whether he had any support network in Fiji currently, the applicant again stated that he had ‘nothing in Fiji.’

29. The applicant told the Tribunal that he is “fearful of the lack of support” and his “inability to care for himself” in a country that he has “no connection with.” The applicant emphasised the point that he has been “pleading with Department to allow him to remain in Australia, a country that has accepted him warmly and, after 33 years” he “considers his own.”

    Department’s conclusions

30. The Tribunal noted from the delegate’s decision record that he expressed concerns in regard to the applicant’s difficulties in making clear what or who he feared in Fiji and why he held that concern and fear.[13]

    [13] see, AAT File Written Submission, Clothier Anderson, dated 10 February 2023 at pp. 12-13

1. The applicant’s Counsel pointed out to the Tribunal that the applicant had “clearly expressed his fears” and they were that he “would be ‘helpless’, ‘needy’, ‘weak’ and ‘without the necessary support systems to survive”[14]

   [14] see, AAT File Written Submission to the Tribunal dated 10 February 2023, Clothier Anderson Lawyers at p.6.

2. Counsel also told the Tribunal (and highlighted it in their submission) that the applicant has a limited education and has only been employed in low-skilled employment throughout his life. The applicant was aging and has limited knowledge and understanding of technology. Also, it was submitted, that he does not concern himself with matters in Fiji.

3. Counsel claims that the applicant holds legitimate fears of returning to Fiji. However, his ability to clearly articulate those fears, in particular “within the complex protection visa criteria is limited.”

4. Counsel’s submission to the Tribunal was that the applicant’s situation as presented to the Tribunal is “a reflection of his (the applicant’s) history and personal circumstances” “rather than a lack of genuine fear” or “as the delegate suggested “an indication that the applicant has applied for protection for the purposes of remaining in Australia, legally.”

   Counsel’s written submission

5. Counsel’s written submission[15] made the following comments in support of the applicant’s claims for protection:

   [15] see, AAT File Written Submission, Clothier Anderson, at pp.13-14

   ·The applicant is a particularly vulnerable person due to the lack of familial and/or community support in Fiji, a country he has not visited since 1990, and one in which many citizens rely on their support networks for survival.

   ·Applicant’s membership of ‘a particular social group/s’: the applicant fears harm in Fiji on account of his membership of several ‘particular social groups’ characterised as follows:

   1.     Elderly people in Fiji;

   2.     Elderly people in Fiji with no support networks;

   3.     Individuals in Fiji with significant injuries.

   ·Counsel noted that the delegate accepted that elderly Fijian with no support networks could be considered a particular social group. Counsel was of the opinion, that there was no reason to depart from that finding and urged the Tribunal to recognise “that particular social groups postulated above” meet the test set out at in s.5L.[16] Specifically, the groups (above) are defined by a common characteristic – age and injury- that quality being fundamental to the member’s identity and distinguishing the group members from society at large. Lastly, the shared characteristic is not the fear of persecution.

   [16] Ibid  

   Referencing the available county information, the applicant’s counsel noted the following:

   ·The applicant may be entitled to some form of pension and/or social security payments, these payments are very low and, did not constitute enough to survive, especially for those who live alone and do not have the support of friends and/or family.

   ·As stated in the applicant’s statutory declaration, the applicant has been away from Fiji since 1986, he does not have any family remaining in Fiji and is not in contact with anyone. Furthermore, the applicant has limited education and has worked only in low-skilled jobs throughout his time in Australia. The only jobs available to him in Fiji would be unskilled labour-intensive work, which he would be unable to obtain due to his age and his ongoing pain and limited mobility associated with his back and knee injuries.

   ·It is clear that, without support networks, the applicant’s life will be incredibly difficult and there is a real chance that he will suffer significant economic hardship. Moreover, it is clear from the above that elderly people without support networks are at a significant disadvantage and have been neglected in Fiji’s social security system.

   ·The country information support’s the applicant’s fears that minimum living standards will not be available to him as an elderly man without any support networks and coping with ongoing and serious knee and back injuries. It is clear that, due to his membership of numerous particular social groups, the applicant is at real risk of persecution on his return to Fiji, which will lead to a life of neglect and destitution.

   Absence of state protection in relation to feared harm

   ·In relation to the harm feared by the applicant in the form of destitution and economic hardship, it is clear that Fijian authorities would fail to assist. Indeed, the harm feared by the applicant is in large part due to the Fijian government’s indifference towards the plight of individuals in the applicant’s circumstances. Despite Fiji’s introduction of a social pension, the implementation of that support system continues to be impeded through under resourcing and a lack of recognition and support for those without any support networks in Fiji.[17]

   [17] see, AAT File Written Submission, Clothier Anderson, Lawyers at p.14

   Complementary Protection alternative

   ·If the applicant is returned to Fiji he would be forced to adjust to a new life, as well as find accommodation and employment for himself in a place of relocation and where he:

   A.    has no family or friends who could provide him with any assistance of support;

   B.    continues to experience pain and mobility issues as a result of his back and knee injuries;

   C.    would only be entitled to a very low pension which would not be sufficient to cover his basic needs for survival; and

   D.    would require extensive support, both financially and in terms of his health if he was to live a normal life.

   ·In such circumstances, the applicant could not reasonably be expected to find gainful work or support and there is no real prospect that he would be able to afford the basic essentials for his survival on return to Fiji.

   ·“In these circumstances”, counsel submitted, the applicant’s fears equally give rise to Australia’s protection obligations under ‘complementary protection’ provisions, as provided for in s.36(2)(aa) and 36(2A) of the Act.

   Request for Ministerial intervention

   ·Counsel submitted that “in the event that the Tribunal is not satisfied” it requested that “the Tribunal refer this case to the Minister” with a recommendation that it was proper for him to intervene in the applicant’s case pursuant to s. 417 of the Act on public interest grounds and grant him a visa to allow him to remain in Australia.[18]

   COUNTRY INFORMATION – FIJI – THE SITUATION OF AGED PERSONS AND THE AVAILABLE ASSISTANCE AND SOCIAL SECURITY

   [18] see, AAT File Written Submission, Clothier Anderson, Lawyers, at p. 15 which also included support documents for the request for Ministerial Intervention.

6. The most recent Department of Foreign Affairs & Trade country information report on Fiji [19] confirms the difficult situation which exists in Fiji for aged person:

   [2.22]    The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. The amounts paid under various schemes (not including food vouchers and bus subsidies) is typically about FJD35-90 (AUD$20-60) per month.

   [19] Ibid, Department of Foreign Affairs & Trade (DFAT) Country Information Report, Fiji, 20 May 2022.

7. Various sources record the monthly cost of living for a single person in Fiji as:

   ·USD$959[20]

   ·USD$725[21]

   ·USD$1,037[22]

   [20]

   [21]

   [22]

8. The DFAT report states that minimum wage is FJD2.68 per hour, which, for a full-time worker, equates to $441.31 per month. The DFAT report goes on to state:

   There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family

9. Information available on the Fiji Government website indicates that the allowance under the Social Pension Scheme is FJD 100 per month.[23] It is clear that if the minimum wage – approximately FJD 440 per month is not sufficient to provide a decent standard of living that the pension payment of only FJD100 would be wholly inadequate to cover the necessary basic living costs of a single person in Fiji, without any support networks.

   [23]

10. The DFAT also report emphasises the reliance most Fijians place on their close support networks:

    [2.23] iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support. While family and kinship ties are less pronounced in Indo-Fijian families (iTaukei families have formed these networks over a much longer time) they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families. Remittances are an important part of the Fijian economy and may have been a source of support for some Indo-Fijians following recent high levels of outward migration.

11. The SDD-SPPS Project Working Paper Series Income Security for Older Persons in Fiji report 2016[24] also emphasises the reliance Fijians place on their relatives and support networks for survival:

    Only half of the economically active population is employed in the formal sector and eligible for the Provident Fund, thus the majority of older persons remain generally reliant on family (children and grandchildren) and friends (members of the community) for support. Ethnic Fijian older persons have been especially reliant on extended family and kinship networks, although as discussed, this support system is under pressure (Plange, 1992). For some Fijians, remittances from their children abroad are their main source of income. “Migrant offspring constitute, in effect, a pension fund for the elderly” and provide much needed support to those unable to work (Brown and Leeves, 2007, p. 15).

    [24] UN Economic and Social Commission for Asia and the Pacific (ESCAP), Income Security for Older Persons in Fiji, 23 June 2016, available at: [accessed 8 February 2023]. 

12. In addition, the Tribunal noted from the available information which highlights the fact that Fiji, as a small Pacific Island nation, is disproportionately impacted by climate change and particularly susceptible to devasting ‘natural’ disasters. The World Health Organisation Health & Climate Change Country Profile 2021 report states:

    Though Fiji contributes minimally to global greenhouse gas emissions, this small island developing state is vulnerable to the effects of climate change. Fiji is already experiencing rising sea levels, coastal erosion, water shortages, salination of water supplies, depleted fishery stocks, large-scale flooding and an increase in vector-borne diseases- all of which will likely increase the effects of climate change become more pronounced. Furthermore, internal displacement as a result of climate is already being experienced in Fiji.[25]

    [25] Small Island Developing States Initiative, ‘Health & Climate Change Country Profile 2021 – Fiji’, 29 March 2021, available at:

13. Similarly, the Internal Displacement Monitoring Centre’s report, ‘Sudden-Onset Hazards and Risks of Future Displacement in Fiji’ highlights the vulnerabilities of Pacific island nations:

    The inhabitants of developing island states in the Pacific are among the most vulnerable populations. At least 50,000 Pacific islanders are at risk of being displaced each year. In these countries, where almost all major services, human settlements and tourism infrastructure are located in coastal areas, sudden-onset hazards such as cyclones, sea-level rise and coastal flooding pose severe social and economic risks.[26]

    [26] Internal Displacement Monitoring Centre, ‘Sudden-Onset Hazards and the Risk of Future Displacement in Fiji’ available at:

14. A further report titled ‘Fiji Gender, Disability and Inclusion – Analysis COVID-19,TC Yasa and TC Ana’ emphasises that people – the elderly,  are particularly vulnerable to the impacts of climate change and natural disasters:

    Fiji is facing unprecedented challenges as a result of the compounded effects of COVID-19, Tropical Cyclone (TC) Yasa and TC Ana. Prior to the pandemic and natural disasters, 30% of Fiji’s population was estimated to be living in poverty, with many more undoubtedly on the margins.

    People from all walks of life are doing their best to cope, with support being provided by multiple groups both within Fiji and overseas, but recovery efforts exist in a context of high levels of gender inequality and social exclusion. Women, people living in poverty, elderly populations, people with a disability, persons of diverse Sexual Orientation, Gender Identity and/or Expression and Sexual Characteristics (SOGIESC) and any combination of these groups are bearing the brunt of the impacts. These inequities are the root causes of social vulnerability to disasters as they affect people’s ability to anticipate, prepare for, survive, cope with, and recover from disasters.[27]

    FINDINGS AND REASONS FOR DECISION

    [27] ‘Fiji Gender, Disability and Inclusion – Analysis COVID-19, TC Yasa and TC Ana’ April 2021, available at:

    The issue of credibility

15. The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v MIEA (1996) 64 FCR 151 the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

    “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration  of the totality of some evidence where a portion of it could reasonably have been accepted.”

16. The Tribunal also accepts that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt”: see, United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva, 1992) at paragraph [196]. However, the Handbook also states at paragraph [203] that:

    “The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run contrary to generally known facts.”

17. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

18. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: see, MIMA v Rajalingam (1999) 93 FCR 220.

19. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; see also: Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

    Certificate and Notification regarding disclosure of certain information to the Administrative Appeals Tribunal under section 438(1)(b) of the Migration Act 1958

20. The Tribunal notes that on 27 July 2018, the Tribunal received information from the Department of Home Affairs.

21. The Department provided a certificate under section 438(1)(b).

22. The certificate indicates that the Department is privy to certain information concerning the applicant making certain money transfers to other parties in Fiji.

23. In the certificate, the Delegate certified that the disclosure of this material would be contrary to the public interest because it may disclose or enable a person to ascertain or identify processes or information sources of a confidential nature.

24. The certificate is signed by [name], Humanitarian Program Operations Branch, Delegate to the Secretary of the Department of Home Affairs.

25. The certificate was provided to the applicant’s Counsel and Counsel’s response was to refer the Tribunal to a submission made to Department on 6 July 2018 on this issue which was as follows:

    We are instructed that {applicant’s name} has sent small cash gifts to people in Fiji on approximately four occasions. We are instructed that none of the individuals he transferred money to are considered close friends. {applicant’s name} has instructed us that to the best of his knowledge and recollection he has sent the following:

    In Christmas 2017, [the applicant] sent approximately $140AUD to [Ms B]. [Ms B] is a Rotuman who was introduced to {applicant’s name} in Australia when she was touring as part of a choir and whose mother passed away some time ago. [The applicant] gave her the money as a gift to help her out when she was in need.

    Around two years ago {applicant’s name} sent [Ms C] approximately $140AUD. {applicant’s name} previously met [Ms C] and her husband while they were touring Australia with their Church choir. {applicant’s name} later learnt that [Ms C] husband passed away and he decided to give her a small gift to help her cover the costs of his funeral. About one year ago [the applicant] again gave her $140AUD as a gift when he learned her mother had passed away.

    About three years ago {applicant’s name} gave $200AUD as a gift to [Ms D] – whose family used to work on {applicant’s name} father’s [Product 1] plantation. {applicant’s name} had been informed by his sisters in [Country 2] that [Ms D] and her family were going through a tough time financially and {applicant’s name} decided to transfer a small amount of money to them to help out.

    We are instructed that none of the above individuals are particularly close to [the applicant] and could not be expected to support him if he were forced to return to Fiji. We submit that the money transfers reflect {applicant’s name} commitment to Christian charity and in no way, undermine his claims for protection.

1. The Tribunal noted the explanation (above) the applicant’s Counsel provided to the Department concerning this issue.

2. Accordingly, the Tribunal finds that the certificate is valid but the information to which the certificate applies is no longer relevant to the applicant’s review application because the information is not relevant to the matters under consideration and in particular, the Tribunal accepts that the applicant has no persons or family currently living in Fiji.

   Consideration of the applicant’s claims – is the applicant entitled to protection as provided for by s. 36(2)(a) of the Act?

3. The Tribunal from the facts before it accepts the following:

   (a)  The applicant left Fiji and travelled to [Country 1] legally on a business visa in September/October 1989, several months prior to the coup which occurred in February 1987;

   (b)  Following the expiration of his sponsored visa in 1989 or early 1990, the applicant travelled to Australia as a stow-away aboard the vessel – ‘[Ship 1]’;

   (c)   Arriving in Australia, the applicant evaded the Department when the ship docked and entered Australia illegally;

   (d)  Since 1990, the applicant has worked primarily in the agriculture and [Industry 1] sectors, working as a seasonal worker in the north of Australia and in Victoria;

   (e)  The applicant was married in 1990 to an Australian citizen but separated and had remained separated from his wife since 2001.

4. Furthermore, the Tribunal accepts that based on the evidence before the Tribunal[28] and the absence of any evidence to the contrary, the applicant is an ethnic Rotuman Fijian. The Tribunal, however, noted that the applicant claimed to have been born in Suva and lived there his entire life. The Tribunal is therefore satisfied Suva is the applicant’s home area.

   [28] see, AAT File

5. Also, the Tribunal accepts the evidence before it, that the applicant suffered a back injury in 2012 and suffers from continuous pains and physical disturbances which requires medication to alleviate the pain.

6. The Tribunal accepts the applicant’s evidence and written statements and in the absence of any evidence to the contrary, that he has spent approximately 30 years outside of Fiji as claimed.

7. The applicant claims to fear persecution on the basis of the Fijian government excluding elderly people without a history of employment in the formal sector from access to the national pension scheme. The Tribunal is satisfied that the applicant is [age]-years-of-age and has not participated in the formal sector in Fiji for approximately 30 years.

   (a)The applicant’s claim as a Rotuman

8. According to the country information the Tribunal referenced, while Rotumans are ethnically different from ethnic Fijians (iTaukei), they are indigenous to the island of Rotuma, a Fijian  dependency, and legally treated in a similar fashion to iTaukei Fijians. While non-indigenous Fijians (ethnic minorities not indigenous to the Fijian islands, such as Indo-Fijians, Chinese Fijians) are subject to disadvantage in relation to land ownership in Fiji, Rotumans receive a legally recognised advantage which they share with iTaukei under Fiji’s Constitution. Set out in Constitution of the Republic of Fiji (Promulgation) Degree 2013, which came into force on 6 September 2013, freedom from discrimination on the basis of race or ethnicity is a right for all Fijians, however, communal land rights of iTaukei and Rotumans are also protected.[29]

   [29] ‘Constitution of the Republic of Fiji (Promulgation) Degree 2013 (Decree No. 24 of 2013)’, Government of Fiji Gazette, Government of Fiji, 6 September 2013, (in force 6 September 2013), sections 26 and 28, in Government of Fiji Gazette. Extraordinary, Vol 14 No. 80, 6 September 2013, pp. 2747-2840, at 2768 and 2770, CIS29349.

9. DFAT reports that, while the majority of government services are provided on a non-discriminatory basis, other services are centralised and provided through the indigenous Fijian administration and could be considered to advantage iTaukei or Rotumans.[30]

   [30] ‘Department of Foreign Affairs & Trade (DFAT) Country Information Report Fiji’, DFAT, 27 September 2017, Section 3.14, p.13, CISEDB50AD5787.

10. The Tribunal noted from the applicant’s Department file, that the applicant had in his submission to the Department of 6 July 2018, referenced a 2013 Minority Rights report which referred to the political invisibility of minority groups, including Rotumans. The same report also noted that the Fijian government plans to increase iTaukei and Rotuman control of the economy to 50 percent by 2020.[31] The same report refers to the NGO Coalition on Human Rights report presented to the Committee on the Elimination of Discrimination (CERD) in 2002, which maintained that there was a strong bias in favour of iTaukei and Rotumans, with 55 percent of the established programmes specifically for those ethnicities, 4.7 percent for Indo-Fijians and 40.5 percent for all communities.[32] The report also refers to 2002 legislation which reserved 50 percent of government contracts, licences and permits for companies owned by iTaukei and Rotumans, reserved 50 percent of shares in government-owned companies for them, and reserved 50 percent of government scholarships for iTaukei and Rotumans as well.[33]

    [31] CIS36DE0BB2833: “Fiji: the challenges and opportunities of diversity”, Minority Rights Group International, 13 March 2013, at p. 13.

    [32] CIS36DE0BB2833: “Fiji: the challenges and opportunities of diversity”, Minority Rights Group International, 13 March 2013, at p. 13.

    [33] CIS36DE0BB2833: “Fiji: the challenges and opportunities of diversity”, Minority Rights Group International, 13 March 2013, at p.14.

11. The evidence before the Tribunal did not raise specific concerns held by the applicant concerning how he would treated in Fiji as an ethic Rotuman. His statutory declaration dated 14 September 2016 raised no specific concerns except to say that the applicant “did not have any family or connections in Fiji.” The applicant declared that he had “lived for 26 years in Australia” and had created “a life” here, for himself.[34] He goes on to say, that “it would be difficult” for him “to go back to Fiji” and to “immerse myself in a country and culture” that the applicant was “no longer connected to.”[35]

    [34] see, AAT File, documents provided by the Applicant to the Tribunal, Statutory Declaration 14 September 2016

    [35] Ibid, AAT File, Statutory Declaration, 14 September 2016.

12. In the same statutory declaration, the applicant states the following:

    “34. My life is well established in Australia, there would be nothing for me to return to in Fiji.

    “35. I have been working in Australia for the past 22 years in various jobs and have been able to support myself financially without government assistance;

    “36. I want to regularise my immigration status and live in Australia as a lawful citizen and therefore I am making an application for Protection Visa only to be able to go through the process and have the ability to request the Minister to intervene in my case;”

13. From the above admissions made by the applicant it is clear to the Tribunal that the applicant’s concerns for making his application for Protection visa were for the purposes to regularise his immigration status because he has been in Australia for a considerable period of time and has no ties with Fiji than to seek protection because of some persecution or harm because of his ethnicity as a Rotuman.

14. Based on the information before the Tribunal, the Tribunal is satisfied that Rotumans are accepted as an indigenous ethnic minority, as opposed to a migrant ethnic minority such as Indo-Fijians or Chinese Fijians. Noting the classification of Rotumans by legislation with iTaukei, the Tribunal is satisfied that any discriminatory measures in force in Fiji would assist Rotumans together with iTaukei. Therefore, the Tribunal is satisfied and also having cumulatively considered the information and evidence before it, that the applicant will not have attached to him a profile of adverse interest with the authorities in Fiji as a result of his race as a Rotuman.

    (b)The applicant’s claim being PSG – ‘elderly Fijian with no support network in Fiji’

15. The applicant’s counsel in her written submission states that the applicant fears harm in Fiji on account of his membership of several ‘particular social groups’ which she characterised as follows – (a) elderly people in Fiji, (b) elderly people in Fiji with no support networks and (c) individuals in Fiji with significant injuries. Counsel also drew the Tribunal’s attention to s. 5L of the Act which defined ‘membership of a particular social group’ as follows:

    For the purposes of the application of this Act and the regulations to a particular person, the person is to 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.

16. Counsel noted in her submission that the delegate had accepted that ‘elderly Fijian with no support network’ could be considered a particular social group. Counsel emphasised the point that ‘there [was] no reason to depart from that finding’[36] and urged the Tribunal ‘to recognise that the particular social groups postulated above met the test set out in s. 5L’[37] In particular, Counsel made the point, the groups identified ‘are defined by a common characteristic -age and injury’ that quality (according to counsel) being fundamental to the members’ identity and distinguishing the group members from society at large.[38] Lastly, the shared characteristic was not the fear of persecution. Hence, according to Counsel, the applicant was a member of the particular social groups as provided above (see, paragraph [62]).

    [36] see AAT File, Clothier Anderson written submission, 10 February 2023 at p. 9

    [37] Ibid

    [38] Ibid

17. Considering Counsel’s submissions concerning s.5L of the Act, the Tribunal is satisfied that an elderly Fijian with no support network is a recognised characteristic which is innate[39] (in the case of the applicant – his age) or distinguishes the group from others in society (in this instance, a lack of support network). Therefore, also considering s. 5L(d) of the Act, the Tribunal is satisfied that shared characteristic is not a fear of persecution. Hence, the Tribunal is satisfied an elderly Fijian with no support network could be considered as a particular social group.

    [39] As determined also by the delegate in his decision at p. 7, see decision record in Department of Home Affairs File no. [number].

18. At the hearing, the applicant was asked from whom he feared harm. In his response, the applicant was vague claiming to not have anyone left in Fiji and that he had no possibility of finding support in Fiji because he had not been there for many years. Nevertheless, the applicant was unable to explain to the Tribunal who would persecute him for reasons of his age, should he be returned to Fiji, nor was he able to explain who would persecute him because he had no support network in place in Fiji. The DFAT report provided in the applicant’s written submissions states that the pension system in Fiji consists of the Fiji National Provident Fund (FNPF) which covers workers from the formal sector, while elderly outside the formal sector, or with very small savings accumulated through the FNPF, face challenges to income security. The same report goes on to state that the FNPF pension and Family Assistance Program (FAP) cover only approximately 30 percent of the populations aged over sixty, resulting in community support and remittances playing a significant role in supporting elderly family members. Further information available states that the FAP (which itself serviced the elderly, permanently disabled and chronically ill) was replaced by a broader Poverty Benefits Scheme (PBS) in 2013. This scheme was designed to be more accessible; the PBS is means tested and can be applied for by submitting a birth certificate, residential address and contact details.[40] In the 2017/2018 budget, the Fijian government increased the household allowance nearly four-fold to F$110, while other schemes also were maintained or increased.[41]

    [40] The Fijian Government 2014, ‘Poverty Benefit Scheme Ensures Objectivity in Selection Criteria’, 3 January 2014; CX1BECAB12985.

    [41] CXC906614209: “Fiji Budget For 2017-18 Increases Spending by $459 Million”, see, Fiji Times, The, 29 June 2017.

19. It is clear from the available country information that the Fijian pension system has many deficiencies in its capacity to properly service an increasing in numbers elderly (or people in need) population but the Tribunal does not accept that these deficiencies reflect an intention to deny elderly Fijians access to state funded pension schemes. Noting the efforts made by the Fijian government in recent times in attempting to  address these deficiencies within the entire Fijian pension system,[42] the Tribunal is not satisfied the Fijian elderly citizens have become a target by ill intended or benign intent, for discrimination or persecution. The Tribunal is not convinced that the gaps in the Fijian pension schemes reflect an official intention or policy by the Fijian government to discriminate against the elderly in Fiji as is claimed by the applicant[43]. The applicant has his rights under the current Fijian social security law to make application for a pension and there is nothing that is before the Tribunal to suggest he would be denied a pension. However, whether that pension once granted allows the applicant to subsist satisfactorily, (without a support network in addition) is another matter that is more a personal matter for the applicant than one imposed on him by the authorities in Fiji.

    [42] CXC90406614209: “Fiji Budget For 2017/2018 Increases Spending by $459 Million” Fiji Times, The, 29 June 2017.

    [43] Also, taking into account what the court said in Cheng Shi Hai v MIMA (2000) 201.

20. Therefore, the Tribunal is not satisfied that the applicant’s age gives rise to a profile of adverse interest to the Fijian authorities or gives rise to result in serious harm at the hands of the Fijian authorities. 

    (c)the applicant’s healthcare concerns if he returns to Fiji

21. From the information available to the Tribunal healthcare is generally available in Fiji. Life expectancy at birth is comparatively high at just over 72 years, which is higher than the average regional health statistics. The government provides generous public health services, including free primary and secondary healthcare. X-ray and other support services are generally not subsidised.[44] There are four main hospitals in Fiji, three of which are state-funded institutions, while the other – Suva Private – is a commercial facility.[45] Fiji has an estimated 2.1 hospital beds per 1000 population, a figure which is comparable to regional averages.[46] Having discussed his injuries and the applicant’s concerns for his recovery in the future, the applicant did not tell the Tribunal that for any reason or reasons he could not access the Fijian healthcare system if he was to return to Fiji in the foreseeable future. What was his major concern was that he had no relatives, friends or family in Fiji to provide him with a daily support network he required in order to maintain himself. In Australia, the applicant had not only access to healthcare but also a support network in place in [Town 1] (with members of his Church) to support him. The Tribunal noted from the available country information that the intention of the ‘privatisation’ of the healthcare system in Fiji was to increase its capacity for patient care and to create a market for those in Fiji society (who can afford it) to undergo medical treatment in Fiji than to travel abroad for treatment.

    [44] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 14 April 2015, see Section 2.43, at p. 9 CISEC96CF155; ‘Reflecting on the 2014 General Election’, Fiji Times, September 2014, CX1B9ECAB6039.

    [45] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 14 April 2015, see Section 2.42, at p. 9 CISEC96CF155; ‘Reflecting on the 2014 General Election’, Fiji Times, September 2014, CX1B9ECAB6039.

    [46] Ibid, Country Information Fiji see, section 2.42 at p.9 CISE96CF155.

22. While the country information does not indicate an intention to privatise the healthcare system in toto, there is no information which indicates that the applicant would be excluded from accessing these for reasons of his age or support network. Furthermore, as indicated earlier in this decision, the Tribunal concluded that the applicant’s home area to be Suva and was satisfied concerns about accessing healthcare from remote islands will not apply to the applicant.

23. Furthermore, the Tribunal having considered all the claims of the applicant, both individually and cumulatively, the Tribunal concludes and finds that if the applicant were to return to Fiji, he would not face a real chance of persecution now or in the foreseeable future concerning his age and health issues and any other reason or reasons provided for in s. 5J(1) of the Act.

24. Therefore, the Tribunal is not satisfied that the applicant is a refugee, as defined by s. 5H(1) of the Act and hence the applicant is not a person in respect of whom Australia has protection obligations as provided for and set out in s. 36(2)(a) of the Act

25. Describe th relevant issues, then discuss the claims and relevant evidence, make findings on material questions of fact and apply the law to these findings. Where relevant, refer to elements of the Refugee Law Guidelines and Complementary Protection Guidelines, and any DFAT country information reports. If you are departing from these Guidelines, include reasoning to explain why.

26. 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).

    COMPLEMENTARY PROTECTION

27. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary criterion in s 36(2)(aa). In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear.’ Accordingly, for the same reasons the Tribunal has provided for determining the refugee criterion as it does not apply to the applicant’s circumstances, the Tribunal is not satisfied that there is a real risk of the applicant suffering significant harm in Fiji. The Tribunal has found that the applicant does not have a real chance of any harm be done to him because of his ‘race’, or ‘membership of a particular social group’ as it relates to his age (being elderly) and because he ‘lacked a support network’ in Fiji. Based on that reasoning also, and with regard to the threshold for real risk being equal to that of real chance, the Tribunal is not satisfied and finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk that the applicant would face significant harm for these reasons. As ‘real chance’ and ‘real risk’ involve the same standard, the Tribunal is further satisfied that these claims do not give rise to a risk of harm of harm for the purposes of s.36(2)(aa) of the Act.

28. Moreover, the Tribunal further notes from the evidence before the Tribunal that the applicant had experienced a back injury which limits his capacity for work, however, the Tribunal also noted that the applicant still did some work at the [Product 2] farm where he also resides in [Town 1]. While the Tribunal accepts the applicant may face financial issues in returning to Fiji, the Tribunal is not satisfied his financial situation (or issues associated with his financial situation) constitutes the intentional infliction of severe pain or suffering, the intentional  infliction of pain or suffering which could be regarded as cruel or inhuman in nature, or has the intention to cause extreme humiliation which is unreasonable. Nor does it amount to the death penalty; an arbitrary deprivation of life or torture. Therefore, the Tribunal concludes and finds that it is not satisfied the applicant’s financial circumstances would result in the applicant facing significant harm, should he return to Fiji. Therefore, the Tribunal is not satisfied that the applicant faces a real risk of significant harm on his return to Fiji either on the basis of his race, his health, age or his financial circumstances. Having considered all of the applicant’s circumstances individually and cumulatively, the Tribunal concludes and finds that it is not satisfied that the applicant faces a real risk of significant harm should he return to Fiji.

1. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

3. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Peter Vlahos
   Member

   
   

   **ATTACHED TO THIS DECISION IS A RECOMMENDATION FOR MINISTERIAL INTERVENTION

   REQUEST MADE BY THE APPLICANT TO THE TRIBUNAL TO RECOMMEND FOR MINISTERIAL INTERVENTION

4. The Tribunal received further submissions from the applicant’s Legal Counsel requesting the Tribunal to make a recommendation to the Minister for his intervention pursuant to s. 417 of Act on public interest grounds and granting the applicant a visa to remain in Australia.

5. The Tribunal noted from the evidence that the applicant’s case, clearly involved circumstances that were unique and exceptional. There was significant evidence before the Tribunal that intervention of the Minister to grant the applicant a substantive visa was warranted in light of his integration into the Australian community as well as the hardships he would encounter if he were compelled to return to Fiji.

6. It was submitted by Counsel that the applicant’s circumstances fall within the Minister’s guidelines for intervention as provided for in s. 417 of the Act.

   Unique and exceptional circumstances

7. The Minister’s guidelines state that the types of cases that should be brought to the Minister’s attention are those cases that raise unique and exceptional circumstances. The applicant’s Counsel made the submission to the Tribunal that the applicant’s circumstances were unique and exceptional in the following

   1.    Compassionate circumstances regarding the age and/health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person; and

   2.    The length of time the person has been present in Australia and their level of integration into the Australian community.

   Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person;

8. The Tribunal was told that it if the applicant was forced to return to Fiji at this time, it would cause him harm and continuing hardship. Counsel, in her submissions to the Tribunal described the applicant as a ‘vulnerable individual’, who was ‘the victim of a serious car accident in March 2022’ and continued ‘to suffer as a result of this injuries.’ Counsel drew the Tribunal’s attention to the applicant’s statutory declaration in he states:[47]

   “I met my orthopaedic doctor recently. I asked about the recover. He said my knee is improving, but that it will take a long time to heal and recover.

   “I am able to work, slowly and not very far, and I can’t climb up steps or onto a bus or tram, for example.

   “I am still taking pain medication to relieve the pain. It helps me a lot to manage the pain. My knee has good days and bad days. I am working with a physio and chiropractor and my specialist, to gradually heal my knee.

   “Doctors have told me not to go back to work because of my injuries and my age. I am concerned that, if something else happens to me, I still struggle to recover and that it will cause my other injuries to flare up. I still experience a lot of pain.”

   [47] see, AAT File, Applicant’s statutory declaration, dated 10.02.2023.

9. Further, the applicant, the Tribunal was told has no connections or support in Fiji and would struggle to survive on a small pension – if it were offered to him. Indeed, the Tribunal noted that the country information cited above in this decision, indicates that the applicant may find himself in a fragile and precarious state, without the necessary support networks.

10. However, in Australia, while the applicant’s life, in large part due to two unfortunate injuries, the applicant has found personal security and happiness. While he lives in a quiet and relatively secluded life, he has friends and a supportive community. The applicant has resided in Australia for over 30 years. He has established his life here and Australia is clearly his home now. The Tribunal noted a letter from [Ms E], [Association 1] stating her concerns for the applicant if he was removed from Australia and forced to return to Fiji:

    [Ms E] writes:[48]

    “As a result of [the applicant name] has not been back to Fiji for 36-years and has no cultural, family, or emotional ties to the land of his birth. With the average life expectancy in Fiji being 67, [applicant’s name] is a very old man by Fiji standards and would face hardship, and disorientation if forced back.”

    [48] see, AAT File, submission by Clothier Anderson dated 10.02.2023, see Appendix.

11. The Tribunal was told by Counsel (having in mind what [Ms E] writes) that it would cause the applicant ‘great hardship’ to be forced to return to Fiji ‘at this point in his life.’ The applicant’s health and wellbeing would undoubtedly benefit from the applicant being permitted by the Minister to remain in Australia.

12. The Tribunal finds sympathy and supports these conclusions on this aspect of the request for Ministerial intervention in the applicant’s circumstances. 

    The length of time the person has been present in Australia and their level of integration into the Australian community

13. Counsel told the Tribunal that the applicant had lived in Australia for more than three decades and had clearly integrated into the Australian community.

14. The Tribunal was also told, that throughout the applicant’s time in Australia, he had “touched many lives” and “made various contributions to Australia” which included through his extensive work history, particularly throughout regional and rural Australia (see, the applicant’s statutory declaration, 14 September 2016). The Tribunal also noted the letter from the applicant’s most recent employer, [Employer 2] which describes the applicant as a “reliable and diligent team member.”[49]

    [49] Ibid, see AAT File submission by Clothier Anderson, APPENDIX ‘Documents’.

15. The Tribunal was also told that though the applicant is now separated, he maintained a long-married relationship with his former partner, Ms [A] for eleven years – between 1990 and 2001. The Tribunal asked the applicant as to why he did not ‘regularise’ his migration status earlier when still in a relationship with now estrange spouse and the applicant explained that ‘at that time’ he did not have access to immigration advice and did not seek to apply for a partner visa. Moreover, the applicant explained that he had not proceeded to divorce from his estranged wife because he ‘hoped a reconciliation might occur’ though ‘he did not hold much hope of that’ and might have to considered divorce proceedings. The Tribunal accepted these responses as frank and truthful.

16. In recent times, the applicant has settled and become a member of the [Town 1] community, in regional Victoria. In particular, the Tribunal was told by the applicant, that he had become a member of [Church 1] and has served his local parish for seven years.[50] The applicant told the Tribunal that due to COVID-19 and then his severe knee injury, he had not been able to physically participate in his church’s activities. However, as he states in his statutory declaration, he hopes to continue his role when his knee improves.[51]

    [50] Ibid see, the applicant statutory declaration at paragraph [33].

    [51] Ibid, see paragraphs [34] to [37].

100.   The Tribunal was provided with a letter from the [Reverend F], in which he describes the applicant’s involvement in [Church 1] as follows: [52]

[52] see, Clothier Anderson written submission – Appendix/Documents.

“{the applicant named} was very active in the life of [Church 1] at [Town 1]. He served in the sanctuary and in many ways around the life of the centre of the [Parish].

“Always he has been concerned to bring his faith to concrete expression through his interactions with members of the congregation and people in the communities with which he is associated.

“{the applicant named} is someone I always have been able to trust to keep his word and complete all the tasks which he undertakes. {applicant named} is keen to gain the skills and learning necessary to appropriately interact with people in a way that is consistent with his deep Christian faith.

“In all my dealings with {applicant’s name} I have encountered a man who is gentle and who listens with care.

“I can highly recommend {applicant’s name} as someone who is conscientious and hard working.”

101.   Similar endorsements were also received by the Tribunal from [Ms E], [Association 1] which described the applicant as having lived in “Australia for over 30-years, supported himself, helped in the community, and made many friends.” [Ms E] goes on to write and describe the applicant as “a member of [Association 1] he has been generous in helping people from all walks of life” and “he has helped with English classes, helped around the Cultural Cottage, and brought cheerfulness and a positive attitude to all he has met.” [Ms E] ends her letter with a clear endorsement of the applicant describing him as “a valuable asset to not just our Association but to the community of [region] of Victoria.”[53]

[53] Ibid, Clothier Anderson written submission.

102.   The Tribunal was also provided with a letter from [Dr G], detailing the applicant’s injury and the necessity for  a left total knee replacement, in which [Dr G] attests to the applicant’s character and community contributions. He writes:[54]

[54] Ibid

“{applicant’s name} has always been compliant with all medical directives and treatment. He has been extensively involved with several local community organisations and has a local reputation as a hard working and honest member of the community.”

103.   Finally, the Tribunal was provided with a letter from [name], senior financial counsellor at [organisation], who has known the applicant for ten years. He writes:[55]

[55] Ibid.

“Before COVID intervened, I understand he was training for prison ministry work in [Town 3] and pastoral care in [Town 4] hospitals.

He often mentioned his hopes of using his personal gifts for the ongoing benefit of the disadvantaged in Australia.”

104.   From what the Tribunal has been told and read from members of the [Town 1] community, the applicant is a valuable and well-respected member of the community. He is a quiet and meek individual, quiet in his speech and truthful in his responses to others – including the Tribunal. He has made contributions to his community without expecting recompense in return and he enjoys the fellowship of his Church. He is a man that has made and considers this country his home and that is evident by the fact that he has not returned or considers returning to his home country, Fiji.

105.   The Tribunal on the information before it and having assessed all the evidence and a having heard the applicant speak about his life and circumstances which led him to Australia and have made him stay here, the Tribunal recommends to the Minister that the applicant is a person with a genuine request for the Minister to intervene. The applicant’s extensive period of time in Australia and his connection and contribution to his local community necessitates the Minister exercising his discretion to intervene provided to him by s. 417 of Act in the applicant’s favour.

Peter Vlahos,

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.

…