1901798 (Refugee)

1901798 (Refugee) [2024] AATA 1194 (5 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901798
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rosa Gagliardi
DATE:5 January 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 January 2024 at 9:08am
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity – Indigenous Fijian – imputed political opinion – anti-opposition/Bainimarama – sibling of someone accused of being involved in a coup against the government of the time – particular social group – woman in Fijian society – change in protection claims at Tribunal hearing – difficulty securing employment upon returning to Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Cases
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 January 2019 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 [in] June 2018. The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji there is a real risk she will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 15 December 2023 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and/or whether she would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
At question 76 of the application form the applicant in response to being asked why she had left her country, made the following claims:
My brother was used by my [Relative A]; xxx, to drive and drop off van that allegedly contained [good]s. My [Relative A] was under a curfew and surveillance by the Fiji military at the time and therefore was unable to do it himself. My brother obliged without having any knowledge about the contents of the van. However, he was told by my [Relative A] not to mention the drop-off to anyone, not even his family. Upon my brother’s return, my [Relative A] xxx advised him to go to his parents and stay there for a while to avoid any attention from the military or police who were following him (my [Relative A]).
At about 3am a few days later, military personnel busted our doors looking for my brother. They accused him straight away for assisting in the transfer of [good]s. My brother was totally taken by surprise and before he was able to respond, they had thrown punches at him and hit him with the guns they had brought with them. Amidst this commotion, I had come running out of my room and upon seeing my brother bleeding and being assaulted, I had jumped in trying to stop the beating. I got beaten up as well, sustaining multiple injuries to my head and body.
My brother was dragged out of the house like a dead animal, thrown into the back of a ute while I lay on the floor back home. In a matter of minutes, a few military officers arrived to interrogate me as well. My actions to defend my brother had now sparked their suspicion that I also know about his recent activities. As I could not utter a word because of my injuries, my family begged them to leave me alone. They warned us not to seek medical help at any hospital and if we wanted to continue living, we had better own up.
The military men visited me constantly following that first beating. I was taken to the military camp and stripped of my clothes while the men made lewd comments. I was spat at and groped. Sometimes their frustration for not being able to extract any useful information from me ended up in my being physically assaulted. Before I started coming to Australia, their threats have escalated to raping and killing me. Until now, I have not been able to convince them that I have no knowledge whatsoever of what transpired or my brother’s involvement in any activities they mentioned. I know that the military men who are following me now will undoubtedly follow through with their threats to my life as the current administration provides them with immunity should their actions be based on the protection of national security in Fiji as provided for in the 2013 constitution. They kept reminding me of that. Even though the real reason for coming to Australia was to escape their watch, I had no knowledge of how to seek Australia’s protection until my recent trip. I have been lucky to have been able to leave the country so far but have been recently advised by my family that the men had visited our home recently and upon being told that I had left the country, their frustration was taken out on our furniture and household belongings. They ransacked our home, breaking a lot of appliances. My family has strongly advised that I find a way to stay here for the sake of my life and not to return home.
At question 77 the applicant was asked what she thought would happen to her if she returned to her home country Fiji, and the applicant wrote:
As mentioned above, I have already been subjected to inhumane treatment by military thugs, due to my brother’s involvement in a coup against the current Government. They have always kept their word whenever they threatened me and now that the elections are around the corner in Fiji, they have stepped up their intimidation tactics and assured me that they will not hold back in stopping people like me or my family from discrediting the current government. God forbid, I have to return, I will surely face unfair prosecution (sp?) and even more possible, an untimely demise. Making people disappear has become their speciality. As a young woman it is quite convenient and very easy to fabricate evidences of misdemeanour or public nuisance when they will use for reasons of initial arrest but once I go in for questioning, my safe return or acquiring any sort of assistance in legal defence will surely be out of reach.
The applicant indicated at question 78 that she had experienced harm in her home country, and that her first experience of being inflicted with grievous bodily harm was after her brother was accused of helping to a stage a coup in 2012. She added, “At about 3AM a few days later military personnel busted our doors at home looking for my brother. As a result of the military actions which were punches, hit with guns of which resulted in my brother bleeding etc. I jumped in trying to stop the beating. I got beaten up as well, sustaining multiple injuries to my hand and body. I was taken to the military camp and stripped of my clothes while the men made lewd comments. I was spat at and groped. Their threats have escalated to raping and killing me. Now that my life has been threatened directly as they step up their bid to keep the current government in control after the 2018 elections, they have assured me that my continuous berating of the current government will not go unpunished”.
Asked at question 81 if the applicant thought she would be harmed or mistreated on return to Fiji and to provide details, the applicant wrote that she was advised by her family that the military and police thugs had to been to her home to look for her and that she should seek protection in Australia. She added, “I am now even more active in expressing my disgust at the current actions of government, on social media and I have no doubt that the same group of people will not hesitate to harm me if I return, especially now that they are trying their very best to dispel people’s opposition to the current government right before the elections. I will face unfair prosecution and my possible demise should I return”.
At question 82 the applicant indicated that she did not think the authorities of her home country can and would protect her if she returned. She reasoned that the military and the police who are mainly responsible for law and order are also the main aggressors in the inhumane treatment of civilians like herself who try to openly but legally express disgust at what is going on in Fiji. Further, they hold leadership positions and are protected under the law for prevention of civil unrest that may be caused by seditious comments against government.
Asked about the possibility of relocation within her country the applicant stated that the military network is strong and very widespread, and she would not be safe anywhere. Given Fiji is a small country it is very impractical to attempt to relocate especially as she is a young woman who has had threats to her life of rape and killing.
Claims at the time of hearing held on 15 December 2023
At hearing the applicant declared that she wanted to be truthful. She stated that with the new regime things in Fiji were now different and she could return there, even though at her age she would have to start over and it would not be easy. In the past, however, finding work there was difficult. It was a matter of who you knew. She was happy with the election outcome. She was willing to go back. In Australia she had qualified as a childcare worker but if she returned to Fiji, she would not be able to undertake such duties because as was customary in her home country, children were cared for by the extended family.
The applicant advised that the overriding reason she had not yet departed for home was because she had a debt to the Commonwealth. She had had to have life saving medical treatment in Australia and this had entailed a significant amount which she had started repaying in instalments. She stated that she did not want to depart the country with this debt hanging over her.
The applicant expressed her grief at being in a type of limbo as she waited to have her application reviewed. She did not know what the future held, even though she was resigned to returning to Fiji now as people there felt freer there. The applicant stated that she had isolated herself from the community in Australia socialising only with work colleagues but when she went home the sense of uncertainty and isolation would overwhelm her. The Tribunal encouraged the applicant to seek services within the community which did not attract a fee, such as Lifeline, to assist her during this uncertain period.
The applicant stated that she may be eligible for a Temporary Skill Shortage visa (subclass 482) and would investigate this option with her employer. She stated she had previously looked into obtaining migration advice but had found it was expensive and she had not progressed with the arrangement. The Tribunal encouraged the applicant to investigate her options in this area as the Tribunal was unable to provide any migration advice in terms of her options for remaining in the country.
The Tribunal asked the applicant to specify precisely what she feared on return to Fiji and the applicant stated she was concerned about her career prospects in Fiji and having to start over.
The Tribunal turned to the issues set out in her application and asked what had happened to her in Fiji. She stated that her brother had unwittingly been asked to carry goods in a van for [Relative A]who was now deceased. Her brother did not know that he had been asked to transfer [good]s. The matter was blown up as if he was a criminal, but he had no idea about the nature of the goods he had been asked to transfer. He was charged and imprisoned and accused of being involved in the coup against the then government. She believed her brother might have been harmed in detention as he was never the same on return.
Asked whether the applicant had been sexually assaulted, beaten and threatened with rape and murder by the military or police, the applicant stated “no”. She was present when they came to take her brother and it was distressing and she was yelled at, but the sexual assault and beatings and threats to kill and rape had not occurred. The applicant stated she felt strongly that she was happy to return to Fiji now. The applicant stated that in any event a few of the persons involved in her brother’s arrest were now in [City 1]and had come to Australia on the [a] program.
Asked to clarify exactly what had happened to the applicant in Fiji she stated they had verbally abused her when they came after her brother in the house where they lived with their parents, but nothing further had happened to her specifically. Her brother who had carried the [goods] for their [Relative A] was in Australia, but she did not know where he was. She had last spoken to him in June 2023.
The applicant stated that her other brother was affected because of their brother’s difficulties with the law and had been shut out of work opportunities. The family’s reputation had been marred.
The Tribunal asked the applicant to specify whether anything else had happened to her in Fiji. She responded that she had been able to go under the radar for as long as she could. When she worked for an Indian-owned [company 1], she found there was no growth for her professionally as they only promoted their own. She found it draining so she took a step back. The applicant stated that before the government changed the Indian community were very powerful. The Tribunal put to the applicant that in Fiji the Indo-Fijians were a minority and that successive governments had favoured Indigenous Fijians.[1]
[1] Hindus in Fiji: A Survey of Human Rights, 2020, Human Rights Report | Fiji - Hindu American Foundation. While the Constitutional framework provides for the protection of religious freedom, some government and police officials routinely used their positions to promote their Christian beliefs. Bainimarama’s government after the 2006 coup did issue directives to end this practice and emphasised religious tolerance.
The applicant stated that things had improved for Indigenous Fijians now as she knew of a friend whose cousin tried to find work in a big Fiji sugar corporation to no avail. He went overseas, studied and when the government changed, he was able to procure a high-level position.
The applicant stated that now the political situation meant that there was an easing of pressure, and she would feel safer. She knew that if she applied for work, she would be doing it through the right channels.
The Tribunal put to the applicant that given she came to Australia on numerous occasions and did not lodge a protection application it could be inferred that her fear was not immediate or pressing and that she did not fear serious harm. The Tribunal acknowledged that the applicant and her family had undergone hardship due to her brother’s arrest and that another brother was unable to find work, however, the events she claimed happened occurred several years before she finally lodged her protection application. The applicant responded that before the election the political situation in Fiji was tense.
The Tribunal asked the applicant whether she feared harm were the opposition to take power again. The applicant responded, “most definitely”. She knew of [a person] of Bainimarama’s [relative] who beat this girl with impunity. She stated it did not seem right. Society would become oppressive. Now there were no media restrictions and peoples’ voices were heard.
The Tribunal again asked the applicant what her concerns about returning to Fiji were and she responded she was concerned due to the debt she owed in Australia for medical treatment.

FINDINGS AND REASONS

The Tribunal accepts the applicant’s claims that she is willing to return to Fiji, albeit she recognises that she would have to start afresh and has concerns regarding finding work given that working in [a particular] sector will be extremely challenging because no such sector exists in Fiji. In other respects, the applicant is more optimistic about the current political environment in terms of less media restrictions and peoples’ voices being heard and employment positions being obtained on merit. It would also appear that the applicant is in favour of the current government.
The Tribunal prefers the applicant’s evidence at hearing over the dramatic claims in her application because the applicant would have been aware that she had little to gain by advising at hearing that she herself as a result of her brother’s dealings with the state and its associated instruments, was not persecuted or seriously harmed by them due to her political or imputed political opinion (anti-opposition/Bainimarama), membership of a particular group (sibling of someone accused of being involved in a coup against the government of the time), ethnicity (Indigenous Fijian), or membership of a particular social group (woman in Fijian society).
The country information supports the applicant’s claims that the repressive climate that followed a 2006 coup has eased, although the judiciary is subject to political influence, and military and police brutality is a significant problem.[2]
In December (2022), a general election resulted in a coalition of three opposition parties forming a government. Sitiveni Rabuka of the People’s Alliance Party (PAP) was elected prime minister, taking over from Frank Bainimarama, who had held the post since 2006. Bainimarama, of the FijiFirst Party, became leader of the opposition.[3]
[2] ‘Freedom in the World’ Fiji 2023, Fiji: Freedom in the World 2023 Country Report | Freedom House.
[3] ibid.
International observers assessed the 2022 election process as free, transparent, and credible.[4]
[4] 2022 Country Reports on Human Rights Practices: Fiji, US Department of State, Fiji - United States Department of State.
Moreover, Fiji has an active media sector, with several private television stations, radio stations and newspapers and since 2022 there has been a notable increase in articles critical of the government in the national media in recent times.[5] Nonetheless concerns about the human rights situation in Fiji persist:
Significant human rights issues included credible reports of: cruel, inhuman, or degrading treatment by government agents; serious restrictions on freedom of expression and media, including censorship; substantial interference with the freedom of peaceful assembly; serious and unreasonable restrictions on political participation; lack of investigation of and accountability for gender-based violence including but not limited to domestic and intimate partner violence; significant barriers to accessing sexual and reproductive health services, including coerced abortion or forced sterilization of persons with disabilities; and trafficking in persons.[6]
[5] ‘Freedom in the World’ Fiji 2023, Fiji: Freedom in the World 2023 Country Report | Freedom House.
[6] 2022 Country Reports on Human Rights Practices: Fiji, US Department of State, Fiji - United States Department of State.
Hence, the Tribunal is mindful that despite the applicant’s optimistic view of the political landscape given the change of government, many significant human rights issues continue to plague Fijian society.
The Tribunal accepts the applicant’s account at hearing that:
·Her brother had unknowingly ferried [good]s in a van for [Relative A].
·Her brother was accused of being involved in a coup.
·Her brother suffered harm at the hands of the military and police and he was never the same on return to his home after detention.
·The applicant was present when the police and military came to their home to take her brother and interrogate him.
·The applicant was verbally abused by those taking her brother away.
As far as the applicant’s involvement in her brother’s narrative, however, it is restricted to the above claims. Given that the applicant has resiled from her claims that she was ever sexually or otherwise assaulted by the military and police, that she was threatened with rape and death, or that she had been accused of being involved in her brother’s illicit activities, the Tribunal rejects that the applicant:
·tried to intervene when her brother was being hit by military personnel and she herself was beaten up sustaining multiple injuries to her head and body.
·after her brother was taken away was interrogated by the military.
·was interrogated by a few military officers as well.
·was suspected of being involved in her brother’s activities in the carriage of[goods].
·the applicant’s injuries were such that she could not talk but her family appealed for the military to leave her alone.
·and her family were warned by the military not to seek medical help at any hospital and if they wanted to continue living, they had better own up.
·was constantly visited by the military men following the first beating.
·was taken to the military camp and stripped of her clothes, while the men made lewd comments and was spat at and groped.
·was physically assaulted because they could not extract useful information from her.
·before coming to Australia was threatened with escalating threats made that she would be raped and killed.
·was being followed by military men in Fiji.
·was constantly reminded by the military that they could follow through with their threats to kill her because the administration in place when the applicant made the application would provide them with immunity. Their actions could be clothed in reasons of national security as provided for in the 2013 constitution.
·had her home raided and ransacked by the military in anger because they learnt that the applicant had left the country.
·will continue to voice her disgust at the actions of the previous government on social media, or anywhere else.
The Tribunal rejects that the applicant has any adverse political profile in Fiji on account of her brother’s actions which occurred some time ago no.
The applicant’s brother has served his sentence and is now in Australia, although the Tribunal has no awareness as to whether this is on a long term or on a short-term basis. What can be extrapolated, however, is that given the applicant’s brother was able to leave his home country without difficulty that he is no longer of any interest to the government and state authorities regarding his activities in the past relating to carriage of [goods]. This is particularly so as there has been a change of government and the previous government that had accused the applicant’s brother is no longer in power.
Given that the applicant’s brother has freedom of movement and was not prevented from leaving his country, it would seem remote that the applicant herself would be of interest to the authorities now on account of being a member of a particular social group (sibling of someone accused of being involved in a coup against the government of the time), for reasons of her actual or imputed political opinion, ethnicity (Indigenous Fijian), and membership of a particular social group (woman in Fijian society). The Tribunal considers that it is remote and far-fetched that the applicant would have any adverse profile with the state and its associated instruments, being the military and police, or any non-state actors simply were she to return to Fiji now or in the reasonably foreseeable future.
The applicant intimated that in the past one of her brothers was discriminated against in Fiji and he had a lot of trouble finding work because her family’s reputation had been damaged because of his brother’s involvement in the ferrying of [good]s. Nonetheless, the matter occurred some years ago now and the Tribunal does not accept that the applicant will, by association with the brother who was convicted, be prevented from finding work of any kind such that she will not be able to subsist as a deliberate discriminatory action towards her by the state, government authorities or any non-state actors.
The applicant has proven resourceful in Australia successfully completing [studies]and finding employment in her field. Previously the applicant has also worked in [another] industry in Fiji. While the Tribunal recognises that in Fiji, she may have to pivot to other employment opportunities and will not be able to pursue a career in [her field] due to the way society and family in Fiji are set up, the Tribunal does not consider that this challenge constitutes persecution or serious harm for any personal characteristics held by the applicant or due to any political opinion or association with her brother. This is particularly so as the Tribunal has found that the applicant never held a political profile of any sort in Fiji.
The Tribunal has also considered whether the applicant would suffer serious harm on account of her non-Indian Fijian ethnicity and finds that the country information shows that Indigenous Fijians have been the dominant group in society, even though efforts are being made to discourage discrimination towards Indo-Fijians.[7] The Tribunal therefore rejects that there is a real chance the applicant will be persecuted or will suffer serious harm on account of her ethnicity.
[7] Hindus in Fiji: A Survey of Human Rights, 2020, Human Rights Report | Fiji - Hindu American Foundation.
The applicant has not made the claim that there is a real chance that she will suffer serious harm or persecution on account of being part of a particular social group (a woman in Fijian society). Nonetheless, this claim could arise on the material before it. The Tribunal acknowledges that the country information shows that women face serious difficulties in the face of family violence and barriers to accessing sexual and reproductive health services.[8] Nonetheless, having assessed the applicant’s circumstances as a single female who has been able to travel to Australia on multiple occasions and who has proven resilient, the Tribunal finds that she would have the resources to access services if she needed them. The Tribunal therefore does not accept that the applicant will face persecution or serious harm on account of being a member of a particular social group (woman in Fijian society).
[8] 2022 Country Reports on Human Rights Practices: Fiji, US Department of State, Fiji - United States Department of State.
The applicant expressed concerns that were the opposition to return to power that the political situation would revert to being oppressive and people’s everyday lives would be less stable. The Tribunal finds, however, that even if there were to be regime change and the opposition were to come to power, the events involving her brother are remote in time and that there would not be a real chance that the applicant would suffer serious harm on account of being a member of a particular social group (sibling of someone accused of being involved in a coup against the government of the time), actual or imputed political opinion (anti-opposition/Bainimarama), ethnicity, or particular social group (woman in Fijian society).
The Tribunal does not diminish that the applicant seeing her brother being dragged away from her home and treated like a criminal by the military would have been an emotionally and psychologically harmful situation. Nonetheless, the Tribunal is not satisfied that such harm reaches the levels of serious harm intended by the Act or that indeed there is a real chance that this will occur again in the reasonably foreseeable future.
Given the applicant has not suffered serious harm in the past and has been permitted to leave Fiji on thirteen occasions, including in 2016, the Tribunal does not accept that she will face such serious harm in the future. The applicant’s travel pattern to Australia is set out below:
·     [in] November 2016 – first time arrived as a holder of a Tourist (FA-600) visa granted [in] November 2016 in effect until [in] June 2018
·     [in] January 2017 – second time arrived on above visa
·     [in] March 2017 – third time arrived on above visa
·     [in] May 2017 – fourth time arrived on above visa
·     [in] June 2017 – fifth time arrived on above visa
·     [in] August 2017 – sixth time arrived on above visa
·     [in] September 2017 – seventh time arrived on above visa
·     [in] October 2017 – eighth time arrived on above visa
·     [in] November 2017 – ninth time arrived on above visa
·     [in[ January 2018 – tenth time arrived on above visa
·     [in] February 2018 – eleventh time arrived on above visa
·     [in] April 2018 – twelfth time arrived on above visa
·     [in] May 2018 – thirteenth and final time arrived on above visa
The applicant has essentially walked away from claims that she was seriously harmed by the previous regime and the military and police and that she has a political profile with the state and its instruments. It would be unreasonable, therefore, to place adverse weight on the above travel pattern as indicating that the applicant does not have a well-founded fear of persecution because at hearing the applicant herself conceded that she did not have a political or other profile in Fiji even though she and her family had gone through a traumatic and unsettling period during the time the applicant’s brother was taken for interrogation and then incarcerated.
Clearly, the travel pattern does not fit in with the claims made at the time of application but are consistent with someone who may have faced some challenges in Fiji in terms of finding suitable work and having her family’s reputation damaged because of her brother’s illicit activities. The Tribunal finds, however, that these challenges, do not amount to having a well-founded fear of persecution or that there is a real chance that the applicant will suffer serious harm on return to Fiji. The applicant’s main concerns revolve around being able to start again in the economy of Fiji as a [age]-year-old female, but none of the evidence demonstrates that these characteristics would prevent her finding work of some kind or that the state or anyone else would make the procurement of employment deliberately challenging for her personally in any way, or that the applicant is being targeted to experience such challenges by the state or non-state actors.
Having considered the applicant’s claims individually and cumulatively the Tribunal finds that there is not a real chance that the applicant will face persecution for reasons of her political or imputed political opinion (anti-opposition/Bainimarama), or for reasons of membership of a particular social group, (sibling of someone accused of being involved in a coup against the government of the time), ethnicity (Indigenous Fijian), or for membership of a particular social group (woman in Fijian society) or for any other s.5J reason if she returns to Fiji now or in the reasonably foreseeable future.
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
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 has not accepted that there is a real chance that the applicant faces serious harm from the government, the military, the police or other arms of the government in Fiji or from any other actors, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. As the Tribunal has found that the applicant has not made out claims that she will be persecuted on return to Fiji, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk the applicant will suffer significant harm.
An applicant will suffer significant harm if the applicant were to be deprived of her life; or the death penalty will be carried out on the applicant; or she will be subjected to torture; or she will be subjected to cruel or inhuman treatment or punishment; or the applicant will be subjected to degrading treatment or punishment on being removed to Fiji. As the Tribunal has rejected the applicant’s original claims that she was ever of political interest to the authorities in Fiji, the Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji. The Tribunal is not satisfied that any such action by any state or non-state actors will be visited upon the applicant.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1194

5 January 2024

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