1902538 (Refugee) - [2024] AATA 2732

1902538 (Refugee) [2024] AATA 2732 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1902538
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Stefanie Memmott
DATE:17 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2024 at 10:10am

CATCHWORDS
REFUGEE – Protection Visa – Fiji – harm from the family of his former wife – repeated return travel to Fiji – political instability – a change of government – land rights – mental health – applicant does not have a well-founded fear of persecution –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 16 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 13 August 2018.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant’s protection visa application includes, among other things, the following information:
·The applicant was born in [year] in [Town 1], [Province 1] Province in Fiji.
·He is a citizen of Fiji and no other country.
·The applicant was (at the time of lodgement) married to [Ms A], who remained in Fiji. Their relationship commenced in July 2014 and they were married in July 2017.
·At the time of lodgement, his father, mother, two older brothers and a younger sister were in Fiji, with a third older brother ([Mr B]) living in Australia.
·He lived at one address only in Fiji, in [Town 1].
·He travelled to Australia on [date] July 2018, as the holder of a Fijian passport and a visitor visa.
·Prior to this visit he had been to Australia 4 times to visit his brother during 2017 and 2018.
A 3 page written statement accompanying the visa application form sets out claims concerning government instability, youth rights, freedom of expression, land rights, Indigenous rights and mental health.
Delegate’s decision
A delegate of the Minister for Home Affairs refused the application on 16 January 2019. The delegate referred to a range of country information. They were not satisfied there was a real chance the applicant would be persecuted in Fjij, nor that there was a real risk he would suffer significant harm if removed to Fiji.
Claims and evidence before the Tribunal
Application for review
The applicant lodged an application for review of the refusal decision on 4 February 2019. He provided the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1902538 (Refugee)

Details

AGLC: 1902538 (Refugee) [2024] AATA 2732
Case: [2024] AATA 2732
Decision Date: 17 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review by a Fijian national who had been refused a protection visa. The applicant claimed he feared harm from his former wife's family and also raised concerns about political instability, land rights, and the suppression of Indigenous rights in Fiji, as well as his mental health. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of section 36(2)(a) of the *Migration Act 1958* (Cth) due to a well-founded fear of persecution, or alternatively, whether there was a real risk of significant harm if he were removed to Fiji under the complementary protection provisions in section 36(2)(aa).

The Tribunal's reasoning focused on assessing the credibility and substance of the applicant's claims against available country information. Regarding the fear of harm from his former wife's family, the Tribunal found the applicant's evidence regarding threats to be vague and not substantiated by specific details or evidence of recent threats. Concerning land rights, the Tribunal noted that while traditional land rights are constitutionally protected in Fiji and leases are facilitated through a government-coordinated system, land cannot be sold, and any leasing requires the agreement of 60% of landowners. The Tribunal was not satisfied that the applicant faced a real chance of his family's land being forcibly taken or leased against their will.

On the issue of Indigenous rights, the Tribunal found the country information did not support the applicant's assertion of suppression, noting that Indigenous Fijians are the majority group and benefit from protections. The Tribunal also noted the revival of the Great Council of Chiefs. The applicant's claims about mental health were accepted to the extent that his stress and mood might deteriorate upon return to Fiji, but the Tribunal was not satisfied that this deterioration would be the result of systematic and discriminatory conduct for a protected reason, nor that it would constitute "significant harm" as defined by the Act. Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa, finding he did not meet the criteria under either the refugee or complementary protection grounds.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A delegate of the Minister for Home Affairs refused the application on 16 January 2019. The delegate referred to a range of country information. They were not satisfied there was a real chance the applicant would be persecuted in Fjij, nor that there was a real risk he would suffer significant harm if removed to Fiji.Claims and evidence before the TribunalApplication for review The applicant lodged an application for review of the refusal decision on 4 February 2019. He provided the Tribunal with a copy of the delegate’s decision record and accompanying notification letter.Pre-hearing submissions and evidence Prior to the hearing the applicant submitted an undated statement from his fiancée [Ms C]. The statement indicates they are due to marry in November 2024, that they have lived together for the last three years and that they have a son together. It also states that the applicant is hardworking, a Christian with strong beliefs and a dedicated father. The applicant also submitted a copy of his son’s birth certificate, which records his birth in [year], a copy of a provisional NSW drivers licence, a copy of an EWP operator licence – yellow card, and a SafeWork NSW national licence to perform high risk work.The hearing – oral and documentary evidence The applicant appeared before the Tribunal on 22 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s fiancée [Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. At hearing, the applicant put forward a different claim for protection than as set out in his visa application. However, when specifically asked by the Tribunal he indicated that he did still seek to rely on the written claims. These claims and the applicant’s evidence about them are discussed in more detail below.Post hearing submissions No evidence or submissions were received after the hearing.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).

Decision

Reasons for decision

When the Tribunal put to the applicant that country information indicates that 60% of the collective landholders must agree before land is leased through the Land Bank,[15] he then gave evidence that that is what he is worried about – for the 40% who don’t agree it’s just bad luck, the land has got to go. The applicant also gave evidence that the government hasn’t done anything in relation to this family’s land, and it’s still undecided what should happen, however he has heard some other land holders do want to lease the land. He worries about future generations if the land goes.[15] ‘Land Bank Initiative and its Successes’, Jyoitu Pratibha, Fiji Sun, 2 March 2020 (>As discussed with the applicant at hearing, the country information before the Tribunal indicates that traditional, communal land rights are protected by the Fijian Constitution,[16] and while traditional owners often lease land to others through the iTaukei Land Trust Board (ITLTB) under government coordinated leasing system, it cannot be sold.[17] More recently, the government introduced a Land Bank initiative, designed to make more land available for productive purposes, but 60% of landowners have to agree before land goes into the Land Bank, whereupon it is leased by the ITLTB, with the rent paid going back to the landowners.[18] [16] Constitution of the Republic of Fiji, section 28 ( DFAT Country Information Report – Fiji, May 2022 (paras 2.25-2.26).[18] ‘Land Bank Initiative and its Successes’, Jyoitu Pratibha, Fiji Sun, 2 March 2020 (>This information indicates that the government is not forcibly taking land or forcing people to give land to the Land Bank, but rather facilitating leases of land, and that any such lease would occur as a result of a decision made by the majority of land holders. The Tribunal further considers that the applicant’s concern that other communal landowners of his family’s land will vote in favour of doing so is speculative. He evidence was to the effect that nothing has happened in this respect since 2018 and he did not claim there was any upcoming vote or other firm steps being taken towards the land being leased. When this was discussed with the applicant at hearing, he indicated he didn’t have anything to say in response.The Tribunal is not satisfied on the evidence before it that there is a real chance the applicant’s family land will be forcibly taken by the government or that they will be forced by the government to give it to the Land Bank. The Tribunal is not satisfied on the evidence before it that there is a real chance the applicant’s family land will be leased through the Land Bank and/or ITLTB now or in the reasonably foreseeable future.For the same reasons, the Tribunal is not satisfied on the evidence before it that there is a real risk the applicant’s family land will be forcibly taken by the government or that they will be forced by the government to give it to the Land Bank. The Tribunal is not satisfied on the evidence before it that there is a real risk the applicant’s family land will be leased through the Land Bank and/or ITLTB as a necessary and foreseeable consequence of his removal to Fiji.Indigenous rightsAt hearing, the Tribunal drew the applicant’s attention to the following claims set out in his protection visa application:In Fiji Indigenous people are suppressed and their rights taken away from them. The suppression of the traditional leadership system is very depressing. He was brought up in a culture where they uphold the culture and tradition of their land. He is a strong advocate of human rights and proud to be Fijian, he strongly advocates for traditional values to be maintained. The government saying everyone is equal and taking way their rights as traditional custodians increases his stress, anger, depression.The applicant gave evidence that he is still concerned about this issue. However, apart from the government taking away the Great Council of Chiefs, he wasn’t able to identify a specific issue or example of the suppression of Indigenous rights. He said that the government is pressing down on the Fijians, taking away their rights and culture generally, people won’t respect other people and people will all be the same. He also referred to the government taking away their land, a claim which has been addressed above.When asked to explain what he did as a strong advocate of human rights and to strongly advocate for traditional values to be maintained, as stated in his written claims, the applicant said he was involved in a youth group program and referred to the government ignoring them if they used their voice.The Tribunal does not accept, based on the applicant’s very vague oral evidence, that he was involved in any advocacy concerning Indigenous rights in Fiji and does not consider he would be involved in any advocacy on return.Further, the country information before the Tribunal is not consistent with the applicant’s contention that the rights of Indigenous Fijians are being supressed. The iTaukei (Indigenous Fijians) are the majority ethnic group in Fiji and enjoy significant social, economic and political capital.[19] There is no official discrimination against the iTaukei. Rather, there are protections of Indigenous Fijian culture, deriving from the ‘native administration’ put in place by the British colonial government, such as the iTaukei Affairs Board and the iTaukei Land Trust Board.[20] The continued existence of the Fijian administration is a form of positive discrimination.[21][19] DFAT Country Information Report – Fiji, May 2022 (paras 3.9-3.10).[20] DFAT Country Information Report – Fiji, September 2017 (para 3.13).[21] DFAT Country Information Report – Fiji – September 2017 (paras 3.13-3.14).Country information before the Tribunal confirms that the Great Council of Chiefs was abolished by the former government, but that it has been revived by the current Rabuka government, convening in May 2023 and again in March 2024.[22][22] DFAT Country Information Report – Fiji, May 2022 (paras 2.4, 3.3); ‘Fiji's Great Council of Chiefs reconvenes after 16 years, promises racial equality’, ABC News, 24 May 2023 ( ‘Banned for almost two decades, Fiji’s Great Council of Chiefs is back and pushing for greater influence’, ABC News, 4 March 2024 (>When this information was discussed with the applicant at hearing, he gave evidence that he accepts that changes are now happening with current government.The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of harm in the form of suppression of Indigenous rights. As the Tribunal does not accept the applicant would be involved in advocacy related to Indigenous rights, the Tribunal is also not satisfied that he would face a real chance of harm for that reason.For the same reasons, the Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of harm in the form of suppression of Indigenous rights. As the Tribunal does not accept the applicant would be involved in advocacy related to Indigenous rights, the Tribunal is also not satisfied that he would face a real risk of harm for that reason.Mental healthAt hearing, the Tribunal drew the following claims to the applicant’s attention:He felt he needed to run away to keep his sanity, so he didn’t break down and do something that would have a very negative impact on his family. In Fiji he was under a lot of pressure and depressed. This led to him being very aggressive and violent. The atmosphere in Australia is very different. The aggressive attitude and violent behaviour has gone. Each time he has been in Australia his stress and mental disturbance is gone, but when he returns to Fiji the stress continues.He would rather kill himself than return to Fiji.The applicant gave evidence that he is at ease and at peace in Australia, but if he goes back to Fiji he will have those feelings again. The applicant gave evidence that he has never had a formal diagnosis of depression or any other mental health condition, that he’s never seen a doctor about this issue nor received any kind of treatment.The Tribunal accepts that the applicant’s mental health may deteriorate on return to Fiji, and that he may again experience pressure, stress, aggression and depressed mood as he has in the past. The Tribunal notes the applicant’s written claims attribute his stress, anger and depression to the government taking away Indigenous rights, but the Tribunal does not accept the government is doing this, having regard to the country information and findings set out above. The written claims also refer to stress in the context of the applicant living in a country where he cannot express his individual rights. However, the applicant was not able to articulate at hearing any such limits on expression of rights, other than referring to an occasion where a youth group project didn’t get funding. Accordingly, the Tribunal is not satisfied that any deterioration of the applicant’s mental health, in the ways described by the applicant, would be the result of systematic and discriminatory conduct, directed at him for one of the reasons specified in s 5J(1)(a) of the Act.The Tribunal is also not satisfied that any deterioration of the applicant’s mental health on return to Fiji would constitute significant harm. It would not involve the death penalty or arbitrary deprivation of life, and the Tribunal is not satisfied that any of the intentional elements would be present necessary for such harm to constitute torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.Even though not previously accessed, the Tribunal has also considered the availability of mental health services in Fiji. Country information before the Tribunal indicates that there are treatment services available in Fiji in primary healthcare facilities, Divisional Hospitals and from a psychiatric hospital in the capital city but that generally there are not enough health professionals to meet demand for care.[23] The country information does not suggest that there is any deliberate withholding of care or deliberate harm inflicted through the provision of mental health care, and that any short comings are related to resourcing and priority issues. The Tribunal is not satisfied on the evidence before it that the applicant would be denied mental health care of given poor mental health care for one of the reasons specified in s 5J(1)(a) or otherwise subjected to systematic and discriminatory adverse conduct in relation to his mental health.[23] F. Charlson, O. Chang, I. Kubuabola, J. Schess, C. Latu, E. Hunter, I. Tukana, S. Qaloewai & R. Shidhaye, 'Implementation of the mental health Gap Action Programme (mhGAP) within the Fijian Healthcare System: a mixed-methods evaluation', BioMed Central, 20 June 2019, 20191202085556, p.1; ‘Mental Health’, MHMS website, undated, available at (accessed 7 February 2024); DFAT Country Information Report – Fiji, May 2022 (para 2.13); ‘Mental Health’, MHMS website, undated, available at (accessed 7 February 2024); S.S. Prasad, 'St. Giles Hospital in dire need of staff', FBC News, 6 July 2023, available at (accessed 7 February 2024); DFAT Country Information Report – Fiji, May 2022 (paras 2.13, 2.15).The Tribunal is also not satisfied that limited access to mental health care or poor mental health care due to lack of resourcing and prioritisation constitutes significant harm. It does not involve the death penalty or arbitrary deprivation of life (even with respect to a resulting suicide).[24] The Tribunal is not satisfied that it would involve intentional infliction of severe pain or suffering, such that it would not constitute torture or cruel or inhuman treatment or punishment. Even though the Tribunal accepts that difficulty obtaining mental health care could cause distress, it is not satisfied on the evidence before it that the applicant would be subjected to an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.[24] EZC18 v MHA [2019] FCA 2143.The Tribunal has also considered the applicant’s written claim he would rather commit suicide than return to Fiji. However, the Tribunal does not consider that suicide, should it occur, would involve persecution of the applicant by another person for one of the reasons specified in s 5J(1)(a)[25] The Tribunal also does not consider that suicide would be harm resulting from the acts or omissions of another person, as is contemplated by the definition(s) of significant harm.[26]Concluding findings[25] CSV15 v MIBP [2018] FCA 669.[26] GLD18 v MH [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 699.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 meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). 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)(aa).There is no evidence before the Tribunal to suggest 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).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Stefanie MemmottMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…dismissed’, Fiji Village, 18 July 2023; ‘Tabuya and Lobendahn discharged after FICAC withdraws it’s case’, Fiji Village, 31 July 2023.

Ratio Decidendi

Legal Principle Established

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 EVIDENCEReceiving country The applicant gave evidence that he is a citizen of Fiji and no other country, and presented a Fijian passport at hearing. The Tribunal is satisfied that the applicant is a national of Fiji and that Fiji is the receiving country for the purpose of assessing his claims.Evidence of [Ms C] The applicant’s fiancée gave evidence that she has known the applicant for 3 years, and they are planning to marry in November this year. She gave evidence that he is the main provider for their family, and a really good father to their son. She also referred to the applicant attending church on Sundays. The Tribunal accepts [Ms C]’s oral and written evidence.Risk of harm from the family of his former wife At hearing, the applicant gave evidence that he might be hurt, tortured or killed by the brothers and uncles of his former wife ([Ms A]). They have told him not to come back to Fiji as they will do something to him. They made threats against him via [social media], via the telephone and through friends (asking them to pass the message on), beginning while he was in Fiji but continuing once he came to Australia. The applicant said they became angry with him when the relationship with [Ms A] fell apart. He gave evidence that the relationship didn’t end for any one, particular reason, but rather they disagreed on a lot of things. The family jumped in and wanted to take part in the disputes between them, to interfere, which lead to confrontation with the family. The applicant and [Ms A] did not have any children together. The applicant gave evidence that he moved back to the family home, away from his former wife, around the time he started visiting his brother in Australia, which was mid-2017. His protection visa application records the following dates for these visits, which the applicant confirmed as correct at hearing:[date] May 2017 – [date] July 2017[date] July 2017 – [date] September 2017[date] September 2017 – [date] November 2017[date] March 2018 – [date] April 2018