1902536 (Refugee)

1902536 (Refugee) [2022] AATA 3421 (11 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1902536
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Vlahos
DATE:11 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 11^th August 2022 at 3.00 PM
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and political opinion – indigenous Fijian with anti-government views – lack of work opportunities and mental health – credibility – no public or social media protest activity – departures and re-entry on own passport – delay in applying for protection and period as unlawful non-citizen – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 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 on 30 May 2018. The delegate refused to grant the visa on the basis that the application did not satisfy sub-section 36(2) of the Act.
The applicant appeared before the Tribunal on 4 August 2022 to give evidence and present arguments.
The Tribunal also received no oral evidence from any other witnesses, though the applicant’s wife was present but informed the Tribunal that she was present as support for the applicant (her husband).
The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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 Australia has protection obligations in respect of the applicant and for the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality & identity
Based on copies of the applicant’s passport which was provided to the Department of Home Affairs (‘the Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Fiji and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa).
On the basis of the abovementioned reasons, the Tribunal further accepts the applicant’s identity as claimed.
Background – Migration history
[In] September 2017 the applicant arrived in Australia as the holder of a Tourist (FA-600) visa which granted on 15 September 2017 and remained in effect until 4 February 2018. [In] October 2017 the applicant departed Australia for Fiji. [In] December 2017 the applicant arrived in Australia on a Tourist (FA-600) visa. On 5 February 2018 the applicant remained as an unlawful non-citizen (UNC). On 30 May 2018 the applicant applied for a Protection visa (subclass XA-866). On 15 June 2018 the applicant was granted a Bridging C (WC-030) visa with no work rights attached.
The applicant’s claims for Protection
The applicant’s claims submitted to the Department[1] as part of his application for Protection visa can be summarised as follows:
[1]see Department of Home Affairs File [Number].
§He arrived in Australia on [date]/12/2017 to spend Christmas and New Year with his relatives and friends. Coming to Australia has been an eye opener for him.
§He realised that he was living in a country where the rights of individuals and indigenous people were restricted, and that Fiji was not a democratic country.
§In Fiji there is no such thing as basic human rights and democracy.
§As an Indigenous Fijian he feels that his right as an indigenous has been taken away.
§In Fiji he was depressed and very sad. He was psychologically depressed due to the being unable to express his opinion and the freedom to openly challenge the government.
§He became aggressive. He started spending most of his time at home and refused to socialize with friends.
§Work was the only thing he enjoyed and that kept him occupied.
§He learnt to keep a low profile and keep quite all the time because he did not want to be punished for exercising his right as an individual.
§‘Over the last four years he has finally resorted to taking his life because he realized that he cannot be showing his siblings good examples when he is living in a country where they cannot exercise most of their human rights’.
§Coming to Australia has greatly improved his health condition. ‘Meeting new people and getting great counselling has greatly assisted him in reducing his psychological stress’. He became a better person.
§His aggression is slowly going away and he is becoming less stress comparing to at one time he wanted to take his own life.
§He has been very vocal now as he is in a good country where freedom of speech is exercised. He is able to challenge the Fiji government and its policies, and it makes him feel better.
§He is afraid for his life and his safety if he returned to Fiji.
§In Fiji he cannot get assistance. He cannot move to another place because he was already in his village and there are social support system traditionally and communally available to him.
§If he returned to Fiji this problem is going to continue.
The Tribunal asked the applicant whether he had any additional claims he wished to discuss with the Tribunal, but the applicant indicated that he was happy to proceed to hearing with the claims already before the Tribunal.
Background of the applicant
The is an indigenous Fijian – “I-Taukei and a Christian”. He is married but has no children. He has family in Fiji which consists of his elderly parents, three brothers and a sister. He also has a relative – an aunt living in Australia. He has completed High School ([Year 1]) but withdrew from studies at [University] in [Year 2]. While in Fiji, he worked as a labourer and [Occupation].
The Tribunal asked the applicant to describe the reason or reasons which caused the applicant to leave Fiji? The applicant said that he ‘had issues with the government in Fiji’. He went on to tell the Tribunal that it was ‘difficult for him’ to ‘have a good future in Fiji.’
The applicant said that he was working in Fiji as a ‘labourer’. However, just before he left Fiji ‘there was no such labourer jobs.’ In other words, the applicant reiterated that he could not find a ‘labouring job.’
The applicant said that in today’s Fiji, you ‘could not find worthwhile work…’
The Tribunal asked the applicant – what prevented him from finding what he described as ‘worthwhile work’? The applicant said that in Fiji ‘…we can find work if we have a good education.’ The applicant described his family background as being one that ‘had to struggle…’ Though, the applicant had completed his high school education, he could ‘not find work in order to make a good living…’
The applicant admitted to the Tribunal that he could not find a better job in order to earn a better living because of his lack of a ‘good’ education and ‘his family poverty.’
The Tribunal asked the applicant – which of your rights had been violated by the Fijian authorities as claimed? The applicant said, that ‘the government had promised a lot’ but ‘it did not keep it promises.’ The applicant said that the government did not ‘provide anything to the indigenous Fijians…’ The government, according to the applicant ‘did not keep its word.’
The Tribunal asked the applicant – how did the government of Fiji not fulfilling its promises to the people affect indigenous Fijians? The applicant said that from his observation most of the available government help went to those ‘who supported the government…’ or ‘agreed with the government…’
The Tribunal asked the applicant – faced with the government’s indifference, did he voice his approval in the public domain against the government? The applicant said that he chose to remain silent with his anti-government thoughts and opinions because he feared ‘that if he said something in public he would be punished’ so the applicant did not protest against the government’s policies.
The applicant was asked by the Tribunal – was he working prior to leaving for Australia? The applicant said ‘to find work – good work – even as a labourer, you needed qualifications…’
The applicant said that he decided to ‘come to Australia’. There was, according to the applicant, ‘an opening to Australia’ and he took it. In Australia, the applicant said ‘you can work hard and enjoy a good job…’ In Australia, according to the applicant, ‘you can get and achieve anything…’
The applicant’s claim of suffering from physical and health problems
The applicant said, ‘when in Fiji’ he was the ‘eldest in the family’ and had responsibility for working to contribute to the family’s needs and this responsibility was made difficult because he did not have a ‘good job.’
The applicant said that he ‘sought advice in Fiji on what to do to help his situation’ but it was ‘all too difficult.’ However, when the applicant arrived in Australia and began working, he dealt successfully with his difficulties and pressures.
The applicant admitted that he had not engaged in Fiji or while here in Australia with a mental health expert. The applicant’s ‘mental state’ was better in Australia because he was working and able to support his family in Fiji. The applicant admitted that he had no mental stress while in Australia, because he earned enough money to assist himself with his wife, cover his rent (here) and also provide food for the entire family in Fiji.
The Tribunal asked the applicant did he face problems if he was to return to Fiji in reasonably foreseeable future? The applicant said that he ‘had no difficulties leaving Fiji’ and did not anticipate ‘having problems returning to Fiji.’
The applicant expressed regret with the Fijian government promising many initiatives but had not provided anything worth anything to the people – to him.
The applicant admitted that despite being disappointed with the government in Fiji, he did not participate in any public protest while here in Australia nor did the applicant post anti-government comment or criticisms on social media.
How did the government’s actions adversely affect the applicant as an indigenous Fijian?
The applicant admitted that his ‘indigenous rights have not been suppressed.’ However, the government’s non-fulfilment of its election policies and promises did cause the applicant issues because he could not find a better job in Fiji. The government did not provide ‘training’ for Fijians.
The applicant was asked – why did he believe that the Fijian government was not democratic? The applicant said that the government consisted of the same persons who had staged the coup in 2000.
Why did the applicant submit his protection application later than earlier?
The applicant said that the did not know that ‘people like me can seek protection’ while in Australia. When people in his community told him about the protection visa, he submitted his Application for Protection visa.
Any issues returning to Fiji in the future?
The applicant said if ‘I go back to Fiji I will face the same problems I have experienced all my life…’ The applicant identified the following – ‘hardship’, ‘poverty’ and ‘misery’.
The applicant provided no documents and no further comment.
COUNTRY INFORMATION - FIJI – CURRENT POLITICAL SITUATION – INDIGENOUS FIJIANS – HUMAN RIGHTS
Indigenous Fijians
Country information (as referenced in the delegate’s decision record)[2] evidenced no mistreatment of indigenous Fijians. According to the most recent census in 2007, 57 percent of the population was comprised of indigenous Fijians (i Taukei).[3] At the end of the 19^th century, British governors in Fiji sought to protect Fijian culture through the establishment of a ‘native administration’. Although modified and renamed, much of this administrative system continues to exist today.[4] The continued existence of this administration is a minor form of positive discrimination towards indigenous Fijians.[5] The government publicly stated its opposition to policies giving “paramountcy” to the interests of ethnic Fijians and Rotumans, which it characterised as racist and called for the elimination of discriminatory laws and practices that favour one race over another.[6] As a result of the government’s attempts to deracialise Fijian politics, certain elements of the indigenous Fijian administration have been disbanded, marginalised or amended.[7]
[2] Delegate’s decision record, see pp. 4-8 et.al
[3] ‘Sharing the City: Urban Growth and Governance in Suva, Fiji’, Phillips, T and Keen, M. Australian National University: State, Society & Governance in Melanesia, 27 September 2016, CIS38A80122052.
[4] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 14 April 2005, CISEC96CF155; ‘The People have spoken: The 2014 Elections in Fiji’, Ratuva, S and Lawson S (ed), Australian National University, 1 March 2016, CIS38A8012633; ‘The politics of conflict reduction’, Fraenkel, J, Routledge, 2013, CIS25155; ‘Fiji Before the Storm: elections and politics of development’, Lal, B V, Australian National University E Press, 2000, CIS8BEF434391.
[5] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs & Trade, 14 April 2015, CISEC96CF155.
[6] “Country Reports on Human Rights Practices for 2017 – Fiji”, US Department of State, 20 April 2015, CISEC96CF155.
[7] ‘DFAT Country Information Report Fiji, Department of Foreign Affairs & Trade, 14 April 2015, CISEC96CF155; ‘Fiji Candidate Indigenous Land Ownership No Longer Safe’, Pacific Islands Development Program, 3 June 2014, CX1B9ECAB5743;
Indigenous Fijians previously enjoyed special consideration in many areas of education and political representation, but the then-interim government removed many of these privileges in an effort to foster a sense of national unity. Most notably, the Great Council of Chiefs, which had existed since 1876, was disestablished in 2012.[8] This policy has been continued by the current administration.[9] Of the 50 members of Parliament, 32 are indigenous Fijian.[10] Indigenous Fijians dominate the civil service and security forces.[11] For the overwhelming majority of government services, service delivery is centralised and is provided on a non-discriminatory basis. Other services, including rural development, are provided through the indigenous Fijian administration, and could be considered to unfairly advantage these groups on the basis of their ethnicity.[12]
[8] 'Freedom in the World 2016 – Fiji', Freedom House, UNHCR Refworld, 23 August 2016, NGE43874C476; 'Fiji parliament says no to reinstating GCC', Radio New Zealand International, 25 April 2016, CX6A26A6E3759
[9] 'Freedom in the World 2016 – Fiji', Freedom House, UNHCR Refworld, 23 August 2016, NGE43874C476
[10] Members of Parliament’ n.d. [current], Parliament of the Republic of Fiji, CISEDB50AD3673
[11] "Country Reports on Human Rights Practices for 2017 – Fiji", US Department of State, 20 April 2018, OGD95BE927438
[12] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 14 April 2015, CISEC96CF155; "DFAT Country Information Report Fiji 27 September 2017", Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787
Available information on the societal mistreatment of indigenous Fijians is limited; DFAT has assessed that there is a low level of societal discrimination against indigenous Fijians in certain areas of the economy. In remote rural and outlying island areas, indigenous Fijians are generally an overwhelming majority of the population and, as a result, are unlikely to be the victims of societal discrimination.[13] Some have claimed to be excluded from economic opportunity. In urban areas, indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish-processing, and government. They are under-represented in business, professional services, and the transport sector. As the majority in most areas, any exclusion of indigenous Fijians from economic opportunity is only ever partial.[14]
Political opinion in Fiji
[13] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 14 April 2015, CISEC96CF155
[14] "DFAT Country Information Report Fiji 27 September 2017", Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787

In general, DFAT assesses that ‘high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention’.[15]
Conditions in Fiji
[15] "DFAT Country Information Report Fiji 27 September 2017", Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787
Past reports indicate that during the period of military rule after armed forces commander Commodore Josaia Voreqe (Frank) Bainimarama overthrew the elected government in December 2006, freedom of speech, expression and association were curtailed in Fiji; the military government used repressive tactics to stifle protests and intimidate critics; and serious human rights abuses occurred. This included the arrest, detention, and physical mistreatment by the military of perceived opponents.[16] However more recent reports indicate a generally improving human rights situation in Fiji in recent years. The US Department of State reported in 2013 and 2014 that the military had ceased its practice of detaining, and in many cases abusing, persons deemed critics of the government. [17]As reported democracy was restored in Fiji in 2014.[18]
[16] US Department of State, Country Reports on Human Rights Practices for 2011: Fiji, Released by the Bureau of Democracy, Human Rights and Labour, 24 May 2012, CX267567: FIJI: Freedom in the World 2011 - Fiji , Freedom House, 21 June 2011, CX171169: FIJI: Coup related harassment, threats, and human rights abuses, DFAT, CIR No. 07/15, 13 February 2007, CX233610: FIJI: Systematic human rights violations after military crackdown, Amnesty International, 7 September 2009
[17] CX309551: FIJI:2012 Country reports on human rights practices - Fiji, United States of America (USA): Department of State also State Department, 19 April 2013; United States Department of State, Country Reports of Human Rights Practices for 2013: Fiji, Bureau of Democracy Human Rights and Labour, 27 February 2014
[18] "Human Rights and Democracy: The 2014 Foreign & Commonwealth Office Report", Foreign and Commonwealth Office, UK Government, 12 March 2015, CISEC96CF1345
The US Department of State (USDS) reported in 2017 that Fiji is a constitutional republic.[19] The country held general elections in 2014, which international observers deemed credible and “broadly reflected the will of the Fijian people.” Josaia Voreqe (Frank) Bainimarama’s Fiji First party won 32 of the 50 seats, and he was sworn in as prime minister. It is reported that civilian authorities maintained effective control over the security forces as well that Individuals and organizations may seek civil remedies for human rights violations through domestic courts.[20]
[19] "Country Reports on Human Rights Practices for 2017 – Fiji", US Department of State, 20 April 2018, OGD95BE927438
[20] "Country Reports on Human Rights Practices for 2017 – Fiji", US Department of State, 20 April 2018, OGD95BE927438
The USDS reported in 2017 that, in contrast with previous years, there were no reports of political prisoners or detainees.[21] While human rights problems still occur in Fiji, and in the past there have been several deaths in police or military custody resulting from beatings or assaults[22], in the period since the September 2014 election there have been no reports that the government or its agents committed arbitrary or unlawful killings.[23] The government investigated some security forces officials who committed abuses, and prosecuted or punished officials who committed abuses elsewhere in the government; however, impunity was a problem.[24]
[21] Ibid
[22] "DFAT Country Report Fiji April 2015", DFAT, 14 April 2015, CISEC96CF1559; "Fiji: Protect freedoms and stop torture: Amnesty International submission to the UN Universal Periodic Review, October-November 2014", Amnesty International, ASA 18/002/2014, 01 July 2014, CIS29283
[23] Ibid
[24] "Country Reports on Human Rights Practices for 2017 – Fiji", US Department of State, 20 April 2018, OGD95BE927438
The USDS reported in 2017 that journalists practiced self-censorship on sensitive political or communal issues because of continued enforcement of a restrictive media decree and monitoring by the Media Industry Development Authority (MIDA).[25]
[25] Ibid
Australia’s Department of Foreign Affairs and Trade (DFAT) reported in 2017 that while Fiji’s Constitution guarantees freedom of speech, expression and publication, assembly, and association, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health, and the orderly conduct of elections.[26]
[26] "DFAT Country Information Report Fiji 27 September 2017", Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787
The same report stated that The Public Order (Amendment) Decree 2012 permits the Commissioner of Police to prohibit or subject to such conditions as he/she sees fit any procession, meeting, or assembly on the grounds of public safety or public order. Under this decree, from June 2012 until late 2014, NGOs, political parties and others were required to seek permits to hold public meetings. At times these permits were withheld (further detail is provided below at relevant sub-sections). The implementation of this policy gradually became less strict, and by late 2014 political groups did not generally need to seek permission to hold public meetings. The new Public Order Amendment Act 2017 removes the requirement for a permit for a meeting in a public place; a permit is still required for a meeting organised or convened in a public park or on a public road.[27]
[27] "DFAT Country Information Report Fiji 27 September 2017", Australian Government, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787
DFAT further reported that credible sources reported an increase in self-censorship by members of civil society on political issues. Broad powers and harsh penalties under relevant decrees, and a relatively recent history of prosecutions mean that public figures continue to tread carefully in their expression of public opinion.[28] In general, DFAT assesses that high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.[29]
[28] Ibid
[29] Ibid
The Public Order (Amendment) Decree 2012 (POAD) authorises the government to use whatever force it deems necessary to enforce public order.[30]There have been reports of security forces abusing individuals.[31]Police may detain persons under the POAD for a maximum of 16 days, after which authorities must charge or release persons in custody.[32]
Fiji Elections
[30] 'Public Order (Amendment) Decree 2012 (Decree No. 1 of 2012)', Republic of Fiji Islands Government Gazette, Government of Fiji, 5 January 2012, pp. 5 & 8, CIS29326; ‘Country Reports on Human Rights Practices for 2017. Fiji’, US Department of State, Bureau of Democracy, Human Rights, and Labour, 20 April 2018, p.2 Section 1.c, OGD95BE927438
[31] ‘Country Reports on Human Rights Practices for 2017. Fiji’, US Department of State, Bureau of Democracy, Human Rights, and Labour, 20 April 2018, p.2 Section 1.c, OGD95BE927438
[32] "Country Reports on Human Rights Practices for 2017 – Fiji", US Department of State, 20 April 2018, OGD95BE927438
Fiji gained independence from Great Britain in 1970 and held elections in 1972, 1977, 1982 and 1987 before successive military coups interrupted Fiji’s democratic development. Following coups in 1987, Fiji held elections in 1992 and 1997; following a coup in 2000, Fiji returned to elections in 2001 and 2006. Following the coup of 2006, Fiji held elections in September 2014.[33] The election of 2014 was based on the Constitution of 2013 adopted by the interim government. The Constitution established a new electoral system with a single national constituency in place of the multiple ethnically-based constituencies that had characterized Fiji’s earlier electoral systems. This, the 2018 election, was the second general election Fiji has held under the system set out in the 2013 Constitution.[34]
Judiciary
[33] "MOG - Fiji General Elections 2018. Interim Statement", [The Co-Chairs of the Multinational Observer Group (MOG)], 16 November 2018, CIS7B8394110264
[34] Ibid
The judiciary in Fiji is not fully independent and, as a result, it does not provide protection to high-profile opponents of the government. The government retains influence over judicial appointments, and the judiciary appears to display partiality in the exercise of its authority.[35] The judicial system has been assessed as not being capable of providing protection to high-profile opponents of the government. For low-profile and non-political matters, however, it is generally capable of providing effective state protection.[36]
Healthcare- Mental Health in Fiji
[35] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Sections 5.14 & 5.16, pp. 27, 28, CISEDB50AD5787
[36] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 5.17, p. 28, CISEDB50AD5787
Largely free and generally effective healthcare is generally available in Fiji. Higher than average regional health outcomes are reflected in comparatively high life expectancy at birth of 72 years. The government provides generous public health services, including free primary and secondary health care: preventive care, generalist and specialist services, and hospitalization. X-ray and other support services are not generally subsidised.[37] There is a government Free Medicine Scheme for low income individuals. There are five main hospitals in Fiji, four of which are state-funded institutions, and one - Suva Private - a commercial facility.[38] Fiji has an estimated 2.1 hospital beds per 1000 population and spent about three per cent of GDP on health in 2014, figures which are comparable to regional averages. Access to health care services from rural areas can be a challenge due to the complexity of inter-island transportation. In particular reference to mental health the government has a Free Medicine Scheme for low income individuals under which antidepressant, anxiolytic, antipsychotic (for schizophrenia and related disorders) and bipolar disorder and mood stabilising drugs are available.[39]
[37] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, CISEDB50AD5787; ‘Social Security Programs Throughout the World: Asia and the Pacific’, 2016, [United States] Social Security Administration, March 2017, CISEDB50AD5682; 'Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance', UNICEF, February 2015, p. 147, CISEC96CF15027
[38] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, CISEDB50AD5787; ‘How to Benefit from Government’s Free Medicines Programme: Akbar’, DEPTFO News, Fiji Sun, 16 February 2017, CXC90406614206
[39] Fiji: FJI CI170901164942012 - Assistance for people with schizophrenia
The Fiji Ministry of Health and Medical Services (MOHMS) website notes that three Community Mental Health Teams (one in each Division: Central/Eastern, Western, and Northern) are responsible for co-ordinating care of all Mental Health Services clients in Fiji, and that Sub-divisional hospitals, Health Centres, General Practitioners and Nursing Stations have professional staff who will assist anyone who thinks they might be developing a mental illness. Stress Management Wards in Suva (Colonial War Memorial (CWM)), Labasa and Lautoka Hospitals can provide time and space for people experiencing mild or moderate stress; it also has an inpatient service. St Giles Hospital in Suva is for people ‘who are highly distressed or having severe symptoms’; it has an inpatient and outpatient service.[40] MOHMS’s Annual Corporate Plan 2016 stated in early 2016 that St. Giles Hospital provides medical and rehabilitation services for patients suffering from mental illness, including occupational therapy, day care facilities, forensic assessments, counselling services, community psychiatric nursing, electro-convulsive therapy and pharmaceuticals.[41] MOHMS’s website advises Fijians where to get help for their mental health.[42]
[40] Fiji. Ministry of Health and Medical Services n.d. [current], ‘Healthy You. Mental Health. Where to get help’, CISEDB50AD5684
[41] Fiji, Ministry of Health and Medical Services [2016], Annual Corporate Plan 2016 CIS38A80125053
[42] ‘Mental Health Wellness’ [Fiji] Ministry of Health & Medical Services, 19 September 2017, CISEDB50AD5701
In April 2017 the Fiji Broadcasting Corporation (FBC) reported on World Health Day that in the last five years over 300 people were admitted to St. Giles Hospital battling depression, including a lot of young people. It quoted the Health Minister, Rosy Akbar, and cited the National Advisor Mental Health, Dr Nirvana Karan, encouraging people suffering from depression but not seeking help, to do so.[43]
[43] ‘Large number of people suffer from depression’ 2017, Fiji Broadcasting Corporation (FBC), 7 April CXC90406614205
This information indicates that health services are available to Fijians concerning issues of mental health.
Departure from Fiji
DFAT reported in September 2017 that in addition to the Oracle system, Fiji immigration services and border security have installed an Integrated Border Management System (IBMS). IBMS integrates with digital and biometric passport systems compatible with International Civil Aviation Organisation (ICAO) standards to enhance the level of security at the border. It is also compatible with the Australian Advanced Passenger Information System and Advanced Passenger Processing applications that advance passenger lists to airlines while conducting watch list processing.[44]The same report stated that all inbound and outbound passengers (including Fijians) are checked against the Oracle system, which includes a ‘Stop Watch’ List (including, for example, entries based on court orders to stop departure, or alerts from Customs if the passenger has outstanding tax debts).[45]
THE TRIBUNAL’S CONCLUSIONS ABOUT THE APPLICANT’S CLAIMS
[44] Ibid
[45] Ibid
FINDINGS AND REASONS
Preliminary comments
It should be noted that the mere fact a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is “well-founded”. In similar terms, that an 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. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have the responsibility or obligation to specify or assist in specifying any particulars of the claim or to establish or assist in establishing the claim. Nor is the Tribunal required or obligated to accept uncritically any and all the allegations made by the applicant: see, MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191 and Prasad v MIEA (1985) 6 FCR 155 at [169-70].
The Tribunal considered the applicant’s claim that he had experienced harm while living in Fiji and that that harm was psychological and mental depression, and this was because of the different government policies that had been put in place by the current government and that had caused the applicant’s depression, and this was compounded as he (as an indigenous Fijian) did not have a voice in what was happening to his country. As a result of these circumstances the applicant could not find proper employment – and therefore, experienced difficulties in providing (as the eldest in his family) for his parents and younger siblings.
The Tribunal accepts that the applicant may have experienced difficulties in accessing or finding a well-paid employment while in Fiji. However, the applicant’s version of events for not being able to so find good and well-paid employment as submitted to the Tribunal at the hearing and with regards to him facing persecution and harm because of his indigenous Fijian ethnicity and anti-government opinions raises certain issues of credibility which the Tribunal discussed below.
Indigenous Fijians treated badly by government
The applicant claimed that indigenous Fijians are not given recognition as the first people in Fiji and their rights have been taken away by the Fijian government. From the outset, the Tribunal accepts and finds that the applicant is an indigenous Fijian.
At the hearing the Tribunal asked the applicant to explain in his words (with the assistance of an interpreter) how he – as an indigenous Fijian – been adversely affected and harmed by the present Fijian government. The applicant admitted to the Tribunal that his rights as an indigenous Fijian had not been suppressed by the government. The applicant explained to the Tribunal that the present government ‘had not fulfilled it (election) promises’ which it had made during the recent elections to indigenous Fijians concerning a better future for them with better job opportunities. In particular, the Tribunal was told that the government once re-elected to office, did not follow up with its electoral promise to better train Fijians or to provide better employment opportunities for them nor did the government provide as it promised during the election, ‘better paying jobs’. As the Tribunal referenced above in the country information provided, there is information which indicates that there is no official mistreatment of indigenous Fijians. It was also referenced that protection measures for indigenous Fijians a product of the British colonial period although modified and renamed (after independence was achieved in 1970) – much of this administrative system of protection of the ethnic or indigenous element in Fiji still operates today.[46] The continued existence of this administration in favour of ethnic Fijians has been described as a minor form of positive discrimination towards indigenous Fijians.[47] While available information on societal mistreatment of ethnic Fijians is limited; DFAT has assessed that there is a ‘low level of societal discrimination against indigenous Fijians in certain areas of the (Fijian) economy.’ In remote areas and in the outlying islands, ethnic Fijians are generally in an overwhelming majority of the population and, as a result, are unlikely to be the victims of societal discrimination.[48] Some have claimed to be excluded from economic opportunity.
[46] DFAT Country Information Report ‘Fiji’, Department of Foreign Affairs and Trade, 14 April 2015, CISEC9CF155.
[47] Ibid.
[48] Ibid.
In this instance, the applicant claimed that he has had his rights suppressed as an indigenous Fijian. The country information does not support this claim nor does the applicant’s evidence. The applicant told the Tribunal that because of the low socio-economic status of his family he was unable to have gained and completed a good education and therefore was forced to work as a low-paid physical labourer while in Fiji. Furthermore, he admitted to the Tribunal that he had not had his indigenous rights suppressed by the present government in Fiji. Nor did he provide any evidence that he had been relegated to working at a lower pay scale as a general labourer because of his ethnicity and excluded from other better paying employment opportunities or prevented from participating freely within the Fijian national economy. Moreover, the applicant described the cause of his circumstances as being created by his family’s low socio-economic background and his lack of having achieved a proper education. There was nothing in these circumstances as the applicant stated which revealed to the Tribunal that he had been targeted or persecuted because of his being an ethnic or indigenous Fijian or that his problem with accessing employment was prevented by some state-sponsored or societal discrimination directed against him because he was an indigenous Fijian. The Tribunal therefore is not satisfied that the applicant would face a real chance of being targeted and being persecuted (excluded from the general labour market) on the basis of his race if he was to return to Fiji. Therefore, the Tribunal concludes and finds that the applicant will face either discrimination or any adverse treatment because of him being an indigenous Fijian or for any other reason or reasons as provided for pursuant to s. 5J(1)(a), (b) or (c) of the Act.
Political opinion

In his application for protection the applicant claimed that he holds anti-government views.
The delegate noted that the applicant did not provide any details of his political views, political associations or activities undertaken in Fiji or while in Australia.[49] At the hearing the Tribunal asked the applicant to provide an explanation of his anti-government opinion which he claimed made him a person of interest to the current Fijian government. The applicant told the Tribunal that the government had made many promises during the recent elections and had not acted on those promises. The Tribunal asked the applicant did he involve himself in open opposition to the current government on the issue of its broken promises to indigenous Fijians. The applicant was categorical and direct in his response. He said ‘no’. In other words, he had not instigated or participated in any anti-government protests or participated in any organisation pledging to oppose the current Fijian government. The applicant’s main issue was that the ‘government had not or was not fulfilling its promises’ it made to the Fijian people in the recent elections to provide employment training and better job opportunities. In the opinion of the Tribunal the applicant’s protestations did not single him out as political activist or an activist which could engage the interests of the Fijian government authorities, military, or security establishment. The applicant displayed a general dissatisfaction that citizens feel in a functioning liberal democracy with their elected officials when they forget for whatever reasons their promises made in an election when government. Nothing is unusual with this in this instance as far as it concerns the applicant. He is free like many other indigenous Fijians to protest his dissatisfaction and when elections are called, to vote in a new government with new policies. The Tribunal is conscious of Fiji’s recent turbulent political history. The applicant told the Tribunal in his evidence that ‘the present government did a coup in the past’ and could not be trusted. There have been a number of coups since 1989 and the present prime minister, who was a former military officer and coup leader, is now an elected prime minister and like all democratically elected leaders is susceptible to removal from office, if people are dissatisfied with his governance of their country at the scheduled ballot box. From the evidence before the Tribunal, the applicant has not for whatever reason or reasons been excluded from participating in local or national elections (when held) either to vote or to participate in them. He has his democratic rights intact and are there for him to exercise as he chooses.
[49] see, delegate’s decision record at p.5
After considering the applicant’s oral evidence concerning his political opinion the Tribunal does not consider that the applicant’s dissatisfaction with government policies as they have affected him indicate that he has a political or anti-government profile. In general terms, DFAT reports that high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest and detention.[50] There is no information in the applicant’s evidence submitted to the Tribunal to suggest that he is a high-profile public figure or a senior member of an opposition political party in Fiji who opposes the present government and who (because of his opposition) would face a chance of harm from the Fijian government. The Tribunal does concede that the applicant does hold views opposed to the current government, but the Tribunal is not satisfied that his opposition personal and political is such he would be of adverse interest to the Fijian government and security establishment. Furthermore, in light of the evidence before the Tribunal, the Tribunal is satisfied that the available country information does not indicate a worsening situation in Fiji in relation to indigenous rights, human rights and freedom of speech. Therefore, the Tribunal is not satisfied that the applicant would face a real chance of serious harm for his political beliefs and opinion or for his opposition to the government as provided for in s. 5J(1)(a)(b) or (c) of the Act.
Health care – Mental Health
[50] DFAT Country Information Report – ‘Fiji’ 27 September 2017, Australian Government, Department of Foreign Affairs and Trade (DFAT), CISEDB50AD5787.
The applicant claimed he has depression, and this could lead to aggressive behaviour if he is returned to Fiji. The applicant claimed that there are no mental health organisations or counselling services in Fiji. At the hearing the Tribunal asked the applicant whether he had been diagnosed with a mental health condition which he had received any treatment while in Fiji and here in Australia. The applicant spoke of being the eldest in his family and the main bread winner for his parents and siblings and having a low-paying job added pressures on him. The applicant said that he sought advice in Fiji about his issues, but it was ‘difficult’. The applicant did not recall when asked – from who did he seek advice. The applicant was also asked by the Tribunal whether he had consulted any health experts on regular basis concerning his issues while in Australia. The applicant’s response to the Tribunal’s question was to say that when arrived in Australia and found a ‘good-paying job’ his mental anguish dissipated. He told the Tribunal, he was content. He was working and making enough money to support himself and his wife here, and his family in Fiji. The Tribunal noted from the country information incorporated in this decision above, that healthcare in Fiji is largely free and is generally available in Fiji. In particular reference to issues of mental health the Tribunal notes that the government has a Free Medicine Scheme for low income individuals under which antidepressant, anxiolytic, antipsychotic (or schizophrenia and related disorders) and bipolar disorder and mood stabilising drugs are available.[51] The applicant before the Tribunal provided no medical reports or assessments determining that he suffered from some chronic physical or mental health issue either while in Fiji or having sought treatment while here in Australia, nevertheless, if the applicant develops such health concerns in future, the country information indicates that health care services are available to the applicant if he requires then, if and when he returns to Fiji.
Departure From Fiji
[51] Fiji: Fiji CI170901164942012 – Assistance for people with schizophrenia.
Based on the evidence the applicant provided to the Tribunal the applicant did not experience any difficulties in obtaining his passport allowing him to travel to Australia (in June 2017). The Tribunal also noted from the records on the applicant’s file with the Department, that he was able to depart and re-enter Fiji multiple times, legally, without any issues. This situation was confirmed by the applicant. From this information before the Tribunal there is no reason or reasons which would prevent the applicant from returning to his country of origin in the reasonably foreseeable future.
Delay in seeking protection
The Tribunal asked the applicant to provide an explanation as to why he was late in seeking protection. The applicant said that he was alerted to the fact that he could make a protection application by fellow Fijians and when he was told of this, he made the application now before this Tribunal. Referring to the applicant’s migration history he travelled to Australia for the first time in September 2017 and the last time in December 2017. The applicant resided in Australia as UNC after his Tourist visa expired on 4 February 2018. The applicant applied for a Protection visa on 30 May 2018 – five (5) months after he arrived in Australia and three months after his substantive visa had expired. The Tribunal has considered this information and after having questioned and listened carefully to the applicant’s responses at the hearing, the Tribunal agrees with the delegate’s conclusion on this point that ‘he (the applicant) is educated, has English skills, is well travelled, and has the support of his family in Australia.’[52] Therefore, ‘it would be reasonable to expect the applicant to seek Australia’s protection sooner than he did’ if ‘indeed the circumstances in Fiji [were] as he claimed.’[53]
[52] see, delegate’s decision (File [Number]) at pp.9
[53] Ibid.
For the reasons given above, the Tribunal is not satisfied that the applicant faces a real chance of persecution in Fiji in the reasonably foreseeable future and therefore the applicant is not a person with respect of whom Australia has protection obligations under s. 36(2)(a) of the Act
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not met the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion – complementary protection in s. 36(2)(aa) of the Act.
Overall, if the applicant is returned to Fiji in the reasonably foreseeable future, he does not face a real chance that he would suffer serious harm because of his ethnicity as an indigenous Fijian or for expressing a political opinion that does not support the current Fijian government or because he claims to be experiencing poor mental health.
The Tribunal concluded that it 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.
Peter Vlahos
Member

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

[2022] AATA 3421

11 August 2022

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