1834000 (Refugee)
[2023] AATA 4405
•10 October 2023
1834000 (Refugee) [2023] AATA 4405 (10 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1834000
COUNTRY OF REFERENCE: Fiji
MEMBER:Lilly Mojsin
DATE:10 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 10 October 2023 at 11:04am
CATCHWORDS
REFUGEE – Protection Visa – Fiji – race – indigenous Fijian – political opinion – opposes current Fijian government – poor mental health – family are members of SODELPA – applicant has never had a profile as a public political figure – government has now changed and SODELPA is part of the government – effective state protection available –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 3 May 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant will suffer serious or significant harm on her return to Fiji, within a reasonably foreseeable future.
The applicant appeared before the Tribunal on 9 August 2023 to give evidence and present arguments via Teams video.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The Tribunal was able to interact with the applicant and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.
The applicant was represented in relation to the review. The representative was present during the hearing.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims, as outlined in her PV application, are summarised as follows:
·The applicant came to Australia to visit relatives and friends with a tourist visa.
·She suffered trauma in school learning about a government that has deprived her rights, resulting in her becoming suicidal. She became very depressed, withdrawn and suspicious of everyone around her fearing and knowing that bloodshed could happen, people were suspicious and could not trust each other. This was a major reason why her family decided that a break from her home country will do good for her health, both physically and mentally. If she returned to Fiji, she knows that mental problems she went through will quickly resurge. She was also very aggressive in Fiji and would resort to violence if she was triggered to anger
·She cannot move to any other part of the country because this problem of people not being able to exercise their basic human rights is nationwide and it does not matter where in Fiji she is resettled, the issue will not be solved as it is the government that is the cause of the threat to her and her family.
·Her right as an indigenous person has been deprived and suppressed because she is an Ilaukei. In Fiji between 2001 and 2006, during the Qarase led Government and before the Military takeover in December 2006, life was safe unlike now. She does not feel safe, and her family is not safe in Fiji.
·Participating in advocating for indigenous rights and the rights of the landowners in Fiji has really boosted her moral and has educated her. This as a youth she was not be able to do this in Fiji because of the limited rights and being supressed. She lives in fear in Fiji because they could not even trust their neighbours. She is now able to comment on social media on the government and its governing process in Fiji. She could not critic the government of the day in Fiji because freedom of expression restriction put in place by the government through government regulations.
·The country is so small and moving to another part of the country will not solve the problem. The military and the government will know her whereabouts regardless of where she goes in Fiji.
·If she returns to Fiji, her life will be shortened because of the situation the country is in. She is deprived of her basic human rights. She can no longer can expression her opinion of the government. The psychological stress that she experienced before leaving Fiji would come back resulting in her becoming more aggressive
·the government is the one that is making her suffer psychological stress and mental depression. NGO are toothless they safeguard their organization, and are limited by the government.
The delegate considered whether the applicant would face a real chance of persecution because she is an indigenous Fijian because she claims to hold a political opinion that opposes the current Fijian government and because she claims to be experiencing poor mental health. The delegate found there was not a real chance the applicant will suffer serious harm for these reasons if she returns to Fiji.
Applicant’s submission to the Tribunal
The applicant provided a lengthy submission to the Tribunal responding to the Department decision. She stated [summarised]:
- While the official reports used by the Department show indigenous Fijians making up more numbers in population, the military and police, it did not mean that the applicant did not experience discrimination based on race. The applicant also stated that being a Fijian woman with an unreported story in the media did not mean that her story was untrue and did not warrant attention.
- The applicant questioned what ‘official discrimination’ had to do with the threat to her life as one indigenous Fijian woman. The applicant advised that back in 2010, the Bainimarama government promulgated a media decree that stopped the media from reporting events that discredited the government. She referred to an article about journalists threatened with jail terms and hefty monetary fines and news reporters who fled Fiji and applied for refugee status in Australia and New Zealand.
- many more similar stories were not reported in the media because of the media decrees and organisations such as DFAT, UN agencies in Fiji, and Amnesty International, only published information that was endorsed by the Fiji/Bainimarama government. She stated that country information is highly biased and being used to assess claims of ordinary people like the applicant, and do not reflect the reality on the ground and are even discriminatory, as the origin and sources of these statistics are discriminatory themselves.
- the Department is selective when considering social media sources of information, and it does not take into account information by well-known and highly accepted blog sites like Coupfourpointfive on Facebook. The Department survey individuals’ personal Facebook pages to prove their claims are untrue.
- The applicant stated that media decrees were lifted in Fiji in April this year, allowing media organisations in Fiji to report the news freely. News such as the high rate of sexual abuse of women and children for the last 10 years started to feature in conventional media platforms. The Department used biased information to be discriminatory which compounded the discrimination and victimisation that the applicant faced as an indigenous Fijian woman whose claims for protection have been brushed aside, by the Department, just because it did not make the news in Fiji.
- Just because the population of indigenous Fijians were more than other ethnic groups does not mean that it is impossible to take their rights away. The systematic erosion of rights of indigenous Fijians over their land - prevalent through numerous changes in land laws, dismantling of premier institutions such as the Great Council of Chiefs and replacement of indigenous Fijians in key leadership positions including judges and CEOs of statutory bodies with replacements brought in by the Bainimarama government from highly corrupt countries like Sri Lanka was so confronting, yet had not been highlighted in the media in the last 16 years or rather, it is reported in a positive way so media organisations are not taken to task.
- The applicant claims that she could not pursue tertiary education as they had taken away the Fijian Affairs Board scholarship and replaced it with TELS which is a loan scheme. Other ethnic groups also had their own scholarships – the Multi Ethnic Affairs scholarship for non-indigenous students. The applicant asserted that although she was more than qualified for tertiary education, she could not access it because she was an ordinary Fijian woman. The applicant claimed that not being able to proceed with her life plans and not being able to voice her frustrations in church (there were military and police officers in her church who sadly were indigenous but strong Bainimarama supporters) or in any public spheres because of media laws, added to applicant’s depression and anxiety.
§Her family knows she is very vocal and opinionated when it comes to voicing her political views. She has always been warned by her family not to open her mouth and invite unwanted attention and threats to their family. Her father, now retired, was a high-ranking manager in [Company 1] in Fiji as well as the Pacific region. They were posted internationally as a family when she was younger because of his job. Her father is now retired. When her father returned to work in Fiji, he was sidelined because he was an indigenous Fijian and was replaced by non-indigenous Fijians.
§During the reign of the Bainimarama the government started to drain out people in order to stay in favour with the government because they wanted to be granted lucrative government contracts, evade taxes and other corrupt practices. The applicant referred to the mass resignations of key position holders right after the 2022 general elections, the recent Auditor General’s report inundated with unauthorised spending going into millions of dollars, projects and contracts that did not follow proper tender procedures, and great wastages highlighted by the current Minister of Finance. All these have only come out now that freedom of speech and media freedom has found its place in Fiji.
§Her father was targeted with threats and verbal abuse by military and the police– including family members in the Forces. Although he became a staunch supporter of SODELPA, he was too prominent to be assaulted physically and he was careful not to breach any of the sedition decrees that could have landed him in jail.
§as a vocal child, she bore the brunt of the threats and abuses and military men in plain clothes would drop by to threaten and intimidate their family. The applicant alleges that they could not find a job or could build a career on as word gets round quite quickly when someone is being singled out for airing anti-government sentiments. The applicant claims that all of these things added to their rising depression and anxiety over the years.
§In 2013 and 2014, reports of human rights abuse lessened much considerably and rights of indigenous Fijians were protected under the 2013 constitution. There was no public consultation on the 2013 constitution and that it was passed by government without any input by people. The Fiji government, with the judiciary under their control were churning out decree after decree in their favour – were able to masquerade themselves as a democracy, when in reality, it was a tyranny that got rid of opposition through legal means at their control. The Department’s assessment was not accurate which can be attributed to the Fiji First government’s manipulative conduct over the years. Election observers were taken only to observe elections taking place in stations that were well known Fiji First Party strongholds and asserts that their declarations that the 2014 and 2018 elections were free and fair was everything else but that. After the passing of the media law in Fiji in 2010, the reports of human rights abuse in Fiji logically lessened as journalists and media outlets suffered considerably when reporting horrific stories of brutality and death at the hands of the military and police. Opposition members were disqualified from standing in the elections if they posed a threat to the Fiji First government and that election laws and regulations were tailored to suit the Fiji First government.
§as a young woman who was very much interested in the political landscape in Fiji, it was becoming too much for her mentally and psychologically as she contemplated a very bleak future.
§The applicant claims that she supported the main opposition party – SODELPA when in Fiji and when she came to Australia. She was very active with social media and commenting on anti-government blogs which was her way and probably the main way people in Fiji and Fijians abroad aired their political views. She was able to participate in a lot of online political discussions without fear. People like her are watched by media cells in the military and police.
§Her family continued to receive threats because of her activities and continue to urge the applicant not to come back to Fiji as the threat to her safety is still very real. The applicant states that even though the government has now changed, the changes in the judiciary are very slow and can still implicate people like the applicant. The applicant says that the Fiji First Party is still very hopeful that they will form government before the next four years and they continue their attempts to destabilise the new Coalition government. The applicant claims that her safety is not guaranteed as the government can change overnight.
In regard to Healthcare and her Mental Health the applicant claimed that:
- On 30 December 2014, she started to suffer from depression and was psychologically affected to find out that her daughter suffered from [Medical condition 1]. She was traumatised and was told during their antenatal clinics everything was alright with her.
- In late 2017 she decided to sue the hospital because her daughter’s condition was getting worse. She was asking questions about misdiagnosis and some staff were suspicious that they were up to something and she started to get abusive phone calls and threatened messages. this continued until their daughter’s last moments in January 2018. She was told that her case would not be successful and to leave it alone. She was devastated and depressed because she had lost her daughter through negligence of the medical staff during their pregnancy.
- no one knew about her suffering because when someone is known to be suffering in any form of mental illness they are mocked and worse case, disowned by family members. That is also one reason she did not want to seek medical assistance because she was already known by some medical staff regarding her baby's condition. as a low-income earner, she could not afford expensive specialist (of which there were only a few back at their home) and only certain medication was available. essential medication always runs out since their experience through their daughter and they did not want to make their case worse and suffer more.
- no one knew about her coming to Australia in 2018 besides her parents and daughter. Her family, who were also facing similar situation back home could not apply to come because they had families who are in military and police and they found out that the applicant had applied for protection. This has been difficult for their family to apply and since then, they kept telling the applicant not to come back because they're under surveillance due to the applicant.
- there was always an uproar from the public about the state of the main hospital in Fiji, which over the Fiji First government reign years was never maintained. Covid19 made the health system even worse and at the edge of collapse and that even in 2021 before the elections, the public health system was in very bad shape. St Giles hospital, is the only hospital that offered mental health services and says that any private hospital was beyond their reach as they were highly expensive. the Free Medical Scheme was only able to provide very basic medicine like Panadol and that most needed medicine was always out of stock and pharmaceutical companies sold medicine at very high prices.
- Her mental condition improved consistently after she arrived in Australia and she did not feel the need to seek medical attention. With the current state of medicine and health care in Fiji, the change in government does not really help as proper health care is still unaffordable and it will be a while before things improve.
Regarding the situation for women, the applicant claims that the reports used for assessment seem to be contradictory and did not agree with DFAT assessments regarding the situation for women generally in Fiji. The applicant claims that there is an overwhelming number of reports to show violence against women in Fiji and for DFAT to understate or to underplay the seriousness not only in the number of incidences but the severity of the abuses that take place and deciding that there is only low to moderate risk is not only inaccurate, but immoral and unjust.
The applicant further claims that although the government has changed, the survival of the current Coalition government is not guaranteed at all and current events like the circulation of three unsigned letters on social media urging the military to intervene and take over government in Fiji is a scary prospect to consider should the military indeed intervene. The applicant also provided a number of news articles to show the stability in Fiji is but a thin layer of ice.
Tribunal hearing
The applicant told the Tribunal that she was born in [year], on the mainland where she grew up.
She married in 2009 and she divorced in 2019, after she came to Australia. She and her husband have not live together since 2017. Her ex-husband is in Fiji. Her daughter who is [age] years old lives in [City 1] with her husband. Her parents are alive and live in [City 1]. Her two sisters and one brother live in Fiji, one brother lives in [Country 1] and one brother in [Country 2].
She completed primary school in [year]. She completed high school and attended [University 1]. In 2002 she obtained a [qualification]. She attended the [University 1] between 2016 and 2018 where she obtained a [degree]. She worked for a [company] until she came to Australia. She works in Australia in a [workplace], as [staff].
She has travelled in and out of Fiji before most recent arrival, in Australia, in 2018. She returned to Australia because of her daughter. In 1997 she got a passport and travelled to [Country 3] as her father was a manager at [Company 1]. The next time she travelled out of Fiji was in 2006 and she went to [Country 3] 2008, then returned to Fiji. She came to Australia in 2012, for a visit to her relatives. She visited a cousin in Melbourne and she also went to Mackay. She travelled to Australia twice in 2012. She had no difficulty travelling in and out of Fiji. She has never been charged for any offence. She has never been attacked or harmed by anyone in Fiji.
In Fiji, she asked questions about the death of her daughter. She questioned the hospital regarding her daughter’s severe condition of [Medical condition 1] and her respiratory condition. She questioned why this happened in the hospital. She was going to put in a complaint but was told these medical conditions can happen and she did not lodge a complaint as there were soldiers in the hospital. The government runs an inefficient health system, this has caused her frustration and distress. I put to the applicant that these inefficiencies affect all Fijians. She agreed and said this gave her psychological stress and mental health.
She said that she is vocalising what is happening in Fiji by lodging this claim for a PV with the Department and the Tribunal because what happened to her is psychological stress. I explained to the applicant that this hearing is confidential and it is not a public forum.
I put to the applicant that she has not provided any medical reports to support her claims of psychological stress or depression or mental health. She said that when she arrived in Australia she felt her life changed for the better.
When asked why she left Fiji in 2018, she said that she had enough of everything happening through the events of her daughter and frustration of not being able to report it. She was advised against making a report.
I put to the applicant that the Fijian government had established a Health Complaints Commission[1] in 2017. She said that only looked good in name. I put that there is the Medical Council and the Consumer Council. She said those councils are not doing the role they are supposed to be doing. I put there is no independent information available that she is not able to lodge a complaint for medical negligence in Fiji
[1]
I put that she did not face discrimination and victimisation in Fiji. She responded that her discrimination is that she was stopped from making further enquiries by staff. Her father is a member of SODELPA and they were discrimination against for this reason. I asked how often they were discriminated against because she has made no claims of any harm to her. The applicant responded that where they lived soldiers were all around the house. The soldiers verbally abused them, because they were so close. I asked how often this had occurred and she said every time in 2006 until they left Fiji. I asked why they did not move sooner and she said that they do not have any place to move to and Fiji is small and she was not earning high wages.
I asked if they lodged a complaint with the police and she said no as police are well connected and they supported Bainimarama. She said that they know they are strong SODELPA supporters. She said that they know which party each one supports. There is a conversation going on.
Her father was not a leader or a prominent activist for SODELPA. He is a [role]and church leader. I asked why he would be abused and she said that he is a branch leader for SODELPA. I put that she did not inform the Department. She said in her submission she said that her whole family were SODELPA supporters. At the time she was not well-informed about how to put in the application.
I put to the applicant that independent evidence does not support her claim that ordinary members of SODELPA are persecuted. She said that is true about those living close to the barracks “we face verbal abusing”. I put that even if it happened, it is not serious harm. She said that it contributed to her psychological stress and mental depression. I asked when these incidents occurred. She said that whenever they meet in general conversations, family members laugh and criticise them. This verbal abuse occurred in private conversations every time. They live in the same area.
I asked when she aired anti-government sentiments. She said that she is able to put up posts in social media against the media in Australia. I asked her what she is posting about. She said that she makes lots of comments.
I put to the applicant that she is not on a public [social media] page, her page is private. I put to the applicant that the Fijian government has no way of knowing she expresses an opinion on [social media]. She said she is in fear of making it public. She comments on other public forums and this will be read publicly. I put to the applicant that there is a new government now.
I asked what she fears about returning to Fiji. She said that she fears what she suffered regarding mental stress and medical condition knowing what the situation is with the Ministry of Health in Fiji, medical service in Fiji is very low and those with mental illness are not very well treated. She is different from the others as she is able to publicly expose it. I put she did not do so before and she said that because of her fear of the consequences she will face.
I explained that whilst medical services were inadequate or unavailable in Fiji for all members of the population, there has to be an element of motivation for the infliction of harm by the Fijian authorities, not just inadequacy of services available.
I put to the applicant that she has qualifications that would assist her to obtain a job in Fiji. There are 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. I discussed the Fijian constitution which protects the lives of all people. The applicant said that all those services do not exist. Those services only on paper.
I also put that Fiji has an independent legal system and DFAT sources say that corruption is not common within the legal system. She said Bainimarama is still in control. I put that proceeding have been taken against him and she said his party is ready at any time.
I discussed with the applicant that policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. Police protection is available. Fiji has an effective police force and an impartial judicial system. The applicant said “yes” but it was not the case during the Bainimarama government
I put to her that the police Ethical Standards Unit[2] is responsible for investigating complaints of police misconduct. Fiji Human Rights and Anti-Discrimination Commission (FHRADC) can investigate complaints about police. She said that did not happen when Bainimarama was in government.
[2] US State Department Fiji 2020 Human Rights Report
I put that the army has a presence in Fiji, but they are unlikely to get involved with the day to day activities of citizens. DFAT acknowledges that some assaults have occurred by the authorities but they have been charged. There are high profile cases that have gone against the police. DFAT further believes that corruption is not common amongst the judiciary. Whilst there were a number of coups in Fiji, the situation is not the same as previously. She agreed and said that her application is made when Bainimarama was in power.
She agreed that the government has changed she does not want to return to Fiji as she will suffer mental distress. Her mental state is very vulnerable, she has her son born here in Australia and returning will cause her to go on a downward spiral.
In Fiji she will suffer sever medical and mental distress, she now has a son born in Australia. He was born in [year]. He has not been joined as an applicant. His father is not Australian or a permanent resident. I put that to her son that her son is a Fijian citizen. She said he is not a citizen of any country. I put that he is a Fijian citizen. She said yes.
I put to the applicant that medical services in Fiji are free. The applicant responded that they have to pay. I put that Healthcare is generally available for those who need it. Specialist healthcare is also generally available in large hospitals. She responded that they are expensive. I put that sometimes the facilities are less-maintained and the staff to patients ratio is poor. However, the Fijian government has been actively improving the healthcare facilities. Whatever lack of services there are, that impacts all residents.
I put to the applicant that whilst journalists have been threatened with jail terms, she is not a journalist and whilst sexual abuse of women does occur, she does not claim to have been sexually abused. I put that she has not been discriminated against in Fiji I put that she received an education in Fiji. She said that she ran out of funding. She was not given the opportunity to apply for a scholarship. She was not given freedom of speech regarding the death of her daughter. She was prevented from freedom of speech, and she was discriminated against because her family are members of SODELPA. I put that she was able to travel in and out of Fiji despite membership of the SODELPA and nothing happened to her.
I put to the applicant that she has never had a profile as a public political figure, she has never been threatened or harmed by anybody or the Fijian government. She responded that she was living amongst the soldiers where they lived.
I also put the independent evidence indicates that that those who have made public comments in Australia do not face harm on their return to Fiji. She said that is for them but the media does not report about her.
She said she will not return to Fiji and there is no guarantee that she and her child will be able to survive in Fiji. In regard to her claim of systematic erosion of rights of indigenous Fijians, it was put that she has not made any claims to have been affected personally. Due to the health system in Fiji there is no guarantee she and her son will receive proper medical services. She lives with the child’s father who does not have a permanent visa and is from Fiji also.
I explained that DFAT is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022. She responded that is true but what he has done remains, as people are loyal to him
The applicant had filed an Appointment of Representative and Appointment of Authorised Recipient Form for [Mr A]. It was indicated on that form that he was the former [position] of SDL Party, now SODELPA. I note that prior to the commencement of the hearing, he had told the Tribunal officer that he was a representative and he was listed on the Tribunal hearing form as a representative. He was present in the room during the Tribunal hearing. Mr [A] informed the Tribunal, at the conclusion of the applicant’s evidence, that he was giving evidence to the Tribunal both as an adviser and a witness. He confirmed that he is not a registered migration agent.
He told the Tribunal that he was the [role during] the last PM of Fiji before Bainimarama. He is a long-time political friend of the family and the applicant’s father played a [long-time political role] and that stigma went through the family and they face social abuse through media. The siblings of soldiers carried that weight and it is a very unhealthy environment. The applicant’s father was a key member of the political party. I put that Bainimarama is no longer in parliament. He agreed and said that the trauma will take a few years to pass.
REASONS AND FINDINGS
On the basis of her Fijian passport, I accept that the applicant is a national of Fiji and not a national or citizen of any other country. I accept that she does not have a right to enter and reside in any country other than Fiji. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am not required to accept uncritically any and all claims made by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility', 'Guidance on Vulnerable Persons' and ‘Guidelines on Gender’. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
By way of background[3] about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57% of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young, more than 80% of people are under 54 years of age.
[3] DFAT Country Report Fiji 2022
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’.
Following the December 2022 Fijian general election, no political party won a clear majority of seats in Parliament to form Government. After ten days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government. The change of government ended the prime ministership of Josaia “Frank” Bainimarama who assumed leadership in Fiji following a coup in 2006. Since the formation of the new government, there has been no significant political unrest or deterioration of government functions. The political situation in Fiji remains stable. According to the ABC[4] both the incumbent ruling party, Fiji First, and a coalition between the People's Alliance and the National Federation Party (NFP) won 26 seats when the final results were announced. SODELPA, a majority Indigenous-Fijian party, held the balance of power with three remaining seats.
[4] Coalition formed between Fiji's SODELPA, National Federation Party and People's Alliance Party after deadlocked election results - ABC News
The applicant’s witness who claimed that the applicant’s father played a very prominent long-time political role and that stigma went through the family and they face social abuse through media, the witness sat through the Tribunal hearing, as an adviser, and it was not until the end of the hearing that the Tribunal was made aware he wanted to give evidence. I place no weight on his evidence in light of the witness being present and hearing all the evidence discussed.
The applicant, an indigenous Fijian, claims to hold a political opinion that opposed the former Bainimarama Fijian government. The applicant claims that she supported the main opposition party – SODELPA when she lived in Fiji and when she came to Australia. She was very active with social media and commenting on anti-government blogs which was her way and probably the main way people in Fiji and Fijians abroad aired their political views. She claims was able to participate in a lot of online political discussions without fear. People like her are watched by media cells in the military and police.
The applicant claims she and her family suffered verbal abuse, because of her father’s political opinion, from the soldiers who lived close to their home. As a vocal child, she bore the brunt of the threats and abuses as military men in plain clothes would drop by to threaten and intimidate their family. Their family members also laughed and criticised them. This verbal abuse occurred in private conversations every time.
I accept that the applicant’s father is a [role] and church leader, who lives in [City 1] with her mother. Even accepting that her father is a member and branch leader of SODELPA, her father was not a prominent activist for SODELPA. Whilst she claims that her father was targeted with threats and verbal abuse by military and the police– including family members in the Forces, she does not claim that he or his family members suffered any harm other than verbal abuse.
When put to the applicant that she did not make these claim of harm to the Department she responded that she had stated in her submission that her whole family were SODELPA supporters. At the time she was not well-informed how to put in the application. I do not accept as plausible her omission for not advising the Department in her protection visa application that she and her family suffered ongoing verbal abuse from soldiers and family members because she was not well-informed. I do not accept as plausible that she would provide information about being SODELP and omit the fact that because of that she and her family suffered verbal abuse in the very document making a claim for protection. I am of the view that had the applicant suffered verbal abuse for such a long period of time some mention would have been made in her protection visa claims. I reject her claim that she and her family suffered verbal abuse from the soldiers and other family members. I therefore also reject her claims that her father was targeted with threats and verbal abuse by military and the police– including family members in the Forces.
The applicant claimed in a submission to the Tribunal that she was very active with social media and commenting on anti-government blogs which was her way and probably the main way people in Fiji and Fijians abroad aired their political views. At the Tribunal hearing asked when she aired anti-government sentiments she said that she is able to put up posts in Australia, she did not refer to these activities in Fiji therefore, I reject her claim that she was very active with social media and anti-government blogs in Fiji.
The applicant states that even though the government has now changed, the changes in the judiciary are very slow and can still implicate people like the applicant. As the applicant does not claim to have been active in any political action in Fiji I do not accept that she will be implicated by the judiciary. As for her support of SODELPA even accepting that she supported SODELPA she was not a member nor an activist. She does not claim to have suffered serious harm as outlined in s.5J(5) for her support or imputed membership of SODELPA, other her claim of verbal abuse and I have rejected her claims of verbal abuse. The government has now changed and SODELPA is part of the government.
Whilst she explains that her father was too prominent to be assaulted physically and he was careful not to breach any of the sedition decrees that could have landed him in jail, the applicant’s father lives in Fiji and the applicant has not made any claims that her father has suffered any serious harm since he returned with his family from living abroad. Therefore whilst her father may have been replaced by a non-indigenous person on his return from international work by his employer [Company 1], this action by [Company 1] does not amount to serious harm as outlined in s.5J(5). Therefore I do not accept that her father suffered serious harm.
The applicant claims she lived in fear in Fiji because they could not even trust their neighbours. I put to the applicant that she has never had a profile as a public political figure, she has never been threatened or harmed by anybody or the Fijian government. She responded that she was living amongst the soldiers where they lived. I do not accept that living close to the army barracks amounts to discrimination or victimisation. I do not accept that she and her family were verbally abused. Therefore, I do not accept, as plausible, that she lived in fear in Fiji.
The applicant complains that she suffered discrimination and victimisation as an indigenous Fijian woman, discrimination based on race, and a threat to her life as an indigenous Fijian woman.
The applicant claims that she could not pursue tertiary education as they had taken away the Fijian Affairs Board scholarship and replaced it with TELS which is a loan scheme. Other ethnic groups also had their own scholarships – the Multi Ethnic Affairs scholarship for non-indigenous students. The applicant asserted that although she was more than qualified for tertiary education, she could not access it because she was an ordinary Fijian woman. When I put to the applicant that she received an education in Fiji she said that she ran out of funding. She was not given the opportunity to apply for a scholarship. I do not accept that the applicant suffered discrimination in Fiji in education or that she could not pursue tertiary education. The applicant attended [University 1] between 2016 and 2018 where she obtained a [qualification].
The applicant also claimed that she could not find a job or could build a career as word gets round quite quickly when someone is being singled out for airing anti-government sentiments. The applicant when asked about expressing her anti-government sentiments in Fiji referred to her activities in Australia. I do not accept that she expressed anti government sentiments in Fiji. The applicant was employed in a [company] until she left Fiji. Whilst she may not have been satisfied this job would build her career, I do not accept that the applicant was singled out in Fiji or that she suffered discrimination or victimisation in regard to employment in Fiji.
The applicant has not provided any evidence of who threatened her life as an indigenous Fijian woman or who victimised her. Therefore I find that the applicant did not suffer discrimination and victimisation as an indigenous Fijian woman or for her political opinion or any other refugee reason, when she lived in Fiji. I reject this claim.
The applicant also complains that in 2010, the Bainimarama government promulgated a media decree that stopped the media from reporting events that discredited the government and she referred to articles about journalists threatened with jail terms, monetary fines and news reporters who fled Fiji. The applicant is not a journalist.
The applicant referred to various corrupt practices that occurred in Fiji during the previous government. The government has now changed and the Bainimarama government is no longer in power. I have no evidence before me to suggest that the new Fijian government is corrupt.
The applicant claims she had been experiencing poor mental health in Fiji. When put to the applicant that she had not provided any medical reports to support her claims of psychological stress or depression or mental health when she resided in Fiji she responded that when she arrived in Australia her life had changed for the better. I would have expected that had the applicant suffered from mental health issues for such a long period of time in Fiji, and claims to have left Fiji in 2018 because of her distress and mental health condition regarding the death of her daughter, I am of the view she would have provided some medical reports with details of her medical condition. I reject her claim that she experience poor mental health in Fiji.
The applicant claimed that not being able to proceed with her life plans and not being able to voice her frustrations in church (there were military and police officers in her church who sadly were indigenous but strong Bainimarama supporters) or in any public spheres because of media laws, added to applicant’s depression and anxiety. As she has not provided medical evidence to support this claim. I do not accept her claim she suffered depression and anxiety with her life plans or voicing her frustrations in church.
The applicant alleges medical negligence regarding the death of her child and discrimination by staff in the hospital treating her child because her father is a member of SODELPA. Further, there were soldiers in the hospital so she did not put in a complaint. She also stated that as a Fijian woman with an unreported story in the media did not mean that her story was untrue and did not warrant attention.
I accept that the applicant questioned the death of her daughter regarding her child’s severe condition of [Medical condition 1] and her respiratory condition. Whilst I accept that the applicant’s father was a member of SODELPA I do not accept that the applicant suffered discrimination and was stopped from making further enquiries by the staff for that reason. There had been ongoing complaints in Fiji regarding medical services. Consequently, the Fijian government established a Health Complaints Commission[5] in 2017. According to the Fijian Times[6] in an article dated 16 August 2016 the formation of the Commission followed complaints about doctors and nurses through social media. There is also a Medical Council and the Consumer Council in Fiji. When put to the applicant she said that their Health Complaints Commission only looked good in name and the Councils are not doing the role they are supposed to be doing. She did not make a complaint to the Commission. Furthermore, there is no independent information available that she was not able to lodge a complaint for medical negligence in Fiji. I reject her claim she suffered serious harm and or discrimination in relation to her daughter’s hospitalisation.
[5]
[6] The Fiji Times » Health care complaints
I am satisfied the applicant did not have an adverse profile in Fiji for a reasons of her race, religion, nationality, membership of a particular social group or political opinion.
I have considered the applicant’s claims individually and cumulatively. I am satisfied the applicant did not suffer persecution amounting to serious harm in Fiji. I am satisfied the applicant came to Australia as a visitor and did not flee Fiji fearing serious harm.
I am required to assess whether the applicant will suffer serious harm on her return to Fiji within a reasonably foreseeable future.
The applicant told the Tribunal that her son was born in Australia since her arrival and returning will cause her to go on a downward spiral. Her son was born in [year]. He has not been joined as an applicant. Nevertheless, I have considered the applicant’s circumstances returning to Fiji with her child. His father is not an Australian or a permanent resident.
The applicant also does not want to return to Fiji, as in Fiji she will suffer sever medical and mental distress and her mental state is very vulnerable. I do not accept that the applicant’s mental stated is very vulnerable in view of her lack of medical reports supporting this claim.
The applicant claims that she fears she may suffer mental stress and knowing what the situation is with the Ministry of Health in Fiji, medical service in Fiji is very low, unaffordable and those with mental illness are not very well treated.
Whilst her fears of mental stress are mere speculation, I accept that medical services can be unaffordable, inadequate or unavailable in Fiji, nevertheless this situation exists for all members of the population. The applicant did not disagree. There is no evidence before me to suggest that there is an element of motivation for the infliction of harm by the Fijian authorities in the lack of adequacy of medical services. I am satisfied that the independent evidence indicates that this inadequacy of services affects the whole population.
Medical services in Fiji are free and Healthcare is generally available for those who need it. Specialist healthcare is also generally available in large hospitals. I accept that the Fijian government run an inefficient health system, and this has caused her frustration and distress. I put to the applicant that these inefficiencies affect all Fijians. She agreed and said this gave her psychological stress and mental health. Whilst I accept that private health care is expensive, sometimes the facilities are less-maintained and the staff to patients ratio is poor, however, the Fijian government has been actively improving the healthcare facilities. I accept that the applicant and her son may suffer from lack of services nevertheless this lack of service impacts all residents. I find there is not a real chance that the applicant with her son will suffer serious harm, for a refugee reason, on her return to Fiji within a reasonably foreseeable future in the provision of health care services.
I accept that media decrees were lifted in Fiji in April this year, allowing media organisations in Fiji to report the news freely. Whilst the applicant claims that news such as the high rate of sexual abuse of women and children for the last 10 years started to feature in conventional media platforms the applicant does not claim to have suffered any sexual abuse. I have considered whether the applicant would suffer sexual abuse in Fiji. There is no independent evidence before me to suggest that all women are at risk of sexual abuse in Fiji. I find remote the chance that the applicant will suffer sexual abuse, within a reasonably foreseeable future on her return to Fiji.
Regarding the situation for women, the applicant claims that the reports used for assessment seem to be contradictory and she did not agree with DFAT assessments regarding the situation for women generally in Fiji. The applicant claims that there is an overwhelming number of reports to show violence against women in Fiji and for DFAT to understate or to underplay the seriousness not only in the number of incidences but the severity of the abuses that take place and deciding that there is only low to moderate risk is not only inaccurate, but immoral and unjust.
Domestic violence is a specific offence under Fijian law.[7] Police practice a ‘no drop’ policy that requires them to pursue investigations of domestic violence even if the victim withdraws the accusation. This policy is designed to prevent victims from being pressured by family to drop charges. However, women’s organisations report that police do not consistently follow this policy. Magistrates can issue restraining orders that are enforced by police. DFAT assesses that these ‘provide some protection.’ Reports identify numerous challenges regarding police protection from gender-based violence in Fiji. DFAT states that police protection is available, but not consistently. According to DFAT, some police stations do not have the equipment or transport to effectively deal with gender-based violence cases. DFAT notes that women who seek help from advocates, such as the FWCC, may receive more assistance than from the police. The United States Department of State (USDOS) reports lax enforcement by the police of domestic violence laws. USDOS reports lax enforcement by the police of domestic violence laws. NGOs provide some support services to women and girls who experience violence[8]. The main NGO providing such support is the FWCC, whose services include counselling, social support and community education. Shelters are available in urban areas.
[7] DFAT Country Report 2022 - Fiji', Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023
[8] ‘Our Services’, Fiji Women’s Crisis Centre, undated, accessed 1 March 2023, CountryI have considered whether there is a real chance that the applicant will suffer violence or abuse, for a refugee reason, on her return to Fiji within a reasonably foreseeable future. The applicant did not claim to have suffered abuse or violence against her because she is a woman when she lived in Fiji. I find remote the chance the applicant will suffer violence or abuse, as a woman, within a reasonably foreseeable future on her return to Fiji.
I put to her that the police Ethical Standards Unit[9] is responsible for investigating complaints of police misconduct. Fiji Human Rights and Anti-Discrimination Commission (FHRADC) can investigate complaints about police. She said that did not happen when Bainimarama was in government.
[9] US State Department Fiji 2020 Human Rights Report
As for her claims that the Department used biased information assessing her claims because what had occurred to her in Fiji did not make the news, and the Department being selective when considering social media sources of information, by not taking into account information by “well-known and highly accepted blog sites” like Coupfourpointfive on Facebook and she criticised information provided by independent sources such as Amnesty, the Tribunal hearing is de novo and the Tribunal assesses all independent evidence for itself. Further, whilst she claims that the Department surveys individuals’ personal Facebook pages to prove that their claims are untrue, she did not provide any evidence to support such a claim. It is mere speculation.
The applicant claims there was systematic erosion of rights of indigenous Fijians over their land, dismantling of premier institutions such as the Great Council of Chiefs and replacement of indigenous Fijians in key leadership positions including judges and CEOs of statutory bodies by the Bainimarama government. The Bainimarama government is no longer in power. There is no evidence before me to suggest that the new Fijian government intends to pursue these policies.
The applicant claims that her family are aware she made a refugee claim. I do not accept this claim, as plausible, as these applications are confidential. But in the event her family are aware, the applicant herself would have released this information. There is no information before me to suggest former Prime Minister Bainimarama, or those loyal to him or his party, pursue nationals who publicly opposed him or his party, since the change of government in December 2022. When put, the applicant responded that is true but what he has done remains, as people are loyal to him. As for her claim that the Fiji First Party is still very hopeful that they will form government before the next four years and they continue their attempts to destabilise the new Coalition government and therefore her safety is not guaranteed as the government can change overnight, these claims regarding the former PM or the Fiji First Party or suffering harm because her family know that she has made a refugee claim is mere speculation on her part.
As for her claims that she supported SODELPA in Australia, I accept that she has done so. The applicant claims that she posted on social media in Australia. I asked her what she posted. She said that she makes lots of comments. I put to the applicant that her posts are not on a public [social media] page, her page is private. I put to the applicant that the Fijian government has no way of knowing she expressed an opinion on [social media]. She said she is in fear of making it public. She comments on other public forums and this will be read publicly. Even were I to accept that the applicant posted on social media in Australia and she made comments on public forums against the previous government, as there is a new government now, and SODELPA is part of the new coalition government and Bainimarama is not part of the government, I find there is not a real chance that the applicant will suffer serious harm, for a refugee reason, on her return to Fiji within a reasonably foreseeable future for her political opinion against Bainimarama government or for posting comments on public forums against the former Bainimarama government or supporting SODELPA.
The applicant claims that she and her family suffered verbal threats and she fears ongoing verbal threats. Her family continue to receive threats and are under surveillance because of her activities and continue to urge the applicant not to come back to Fiji as the threat to her safety is still very real. I have rejected her claims of suffering verbal threats in Fiji. Further, I do not accept that SODELPA supporters such as her family have received threats since the new government came to office. Therefore I do not accept that there is a real chance that SODELPA supporters such as the applicant and her family will receive verbal threats or be placed under surveillance on her return to Fiji, within a reasonably foreseeable future.
I find that there is not a real chance that the applicant with her son will suffer serious harm for her political opinion, within a reasonably foreseeable future on her return to Fiji within a reasonably foreseeable future.
In regard to employment on her return, the applicant has university qualifications and has worked in Fiji and in Australia. There are also pensions for people with disability, children and the very poor. Assistance may be provided with bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. I discussed the Fijian constitution which protects the lives of all people. The applicant said that all those services do not exist. Those services are only on paper. She has qualifications that would assist her to obtain a job in Fiji. She has lived in Australia since 2018. She has been able to find work in Australia. I am satisfied the applicant is able to find work in Fiji.
I also put to the applicant that Fiji has an independent legal system and DFAT sources say that corruption is not common within the legal system. She said Bainimarama is still in control. I put that proceeding have been taken against him and she said his party is ready at any time. The applicant further claims that although the government has changed, the survival of the current Coalition government is not guaranteed at all and current events like the circulation of three unsigned letters on social media urging the military to intervene and take over government in Fiji is a scary prospect to consider should the military indeed intervene. I find that this is mere speculation by the applicant.
I discussed with the applicant that policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. Police protection is available. Fiji has an effective police force and an impartial judicial system. The applicant said that yes but it was not the case in Bainimarama government.
I put that the army has a presence in Fiji but they are unlikely to get involved with the day to day activities of citizens. DFAT acknowledges that some assaults have occurred by the authorities but they have been charged. There are high profile cases that have gone against the police. DFAT further believes that corruption is not common amongst the judiciary. Whilst there were a number of coups in Fiji, the situation is not the same as previously. She agreed and said that her application is made when Bainimarama was in power.
Whilst I accept that the applicant was opposed to the former government, I do not accept that she suffered discrimination and victimisation in Fiji therefore I do not accept that there is a real chance that the applicant with her son will suffer persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion, on her return to Fiji within a reasonably foreseeable future.
I have considered the applicants’ claims and evidence singularly and cumulatively. I am not satisfied that there is a real chance the applicant will suffer persecution for reasons of her race, religion, nationality, membership of a particular social group or political opinion, if the applicant and her son returns to Fiji. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I must also consider whether there is a real risk the applicant, an ethnic Fijian woman with an Australian born son, will suffer significant harm on her return to Fiji. She did not have an adverse political profile when she lived in Fiji for her political opinion, or any other reason. The government has now changed and the party she supports SODELPA is part of the ruling coalition. I do not accept that there is a real risk the applicant with her son will suffer significant harm for her political opinion against the Bainimarama government or for posting comments on public forums against the former Bainimarama government or supporting SODELPA or any actions taken in Australia against the former government. I therefore do not accept that there is a real risk that the applicant will suffer significant harm for her political opinion on her return to Fiji.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life. There is no evidence that there are widespread conditions of violence in Fiji, and I do not accept that there is a real risk of harm from non-state actors.
The applicant is well educated having tertiary qualifications from Fiji. She is working in Australia. I am satisfied that the applicant will make appropriate arrangements for her employment on return to Fiji.
I am not satisfied that any difficulty the applicant may be subject to, on her return to Fiji, for inefficiencies and lack of facilities by the health care system would amount to significant harm. These inefficiencies and lack of facilities affect all citizens.
Therefore, I am not satisfied that there is a real risk that the applicant and her son would suffer significant harm, within a reasonably foreseeable future on her return to Fiji, as an ethnic Fijian woman or any other reason.
100. Further, there is no death penalty in Fiji.
101. Having considered all of the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji now or in the reasonably foreseeable future.
102. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(aa).
CONCLUSIONS
103. 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).
104. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
105. 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
106. The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
MemberANNEXURE A
107. 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.
108. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A pe Wn 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).
110. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
112. 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.
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.
…
Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023
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Immigration
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Statutory Interpretation
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