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 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).
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
Receiving 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
During this period, when he was travelling to Australia and living with in his family home, the applicant says he received threats from [Ms A]’s family 2 or 3 times per week. When he was in Fiji, they would pass on threats by word of mouth, threatening to beat him. They would also pass on threats to his family by word of mouth and look for him in town. He spoke to his then wife during this period about the threats, but she took their side.
Once the applicant moved to Australia, in July 2018, he stopped speaking to his former wife for good. The threats kept being made by [social media], even more frequently, but then in 2019 the applicant cut all communications with his former wife’s family. He hasn’t received any threats from them since then, and neither has his family back in Fiji. He was sent divorce papers which he simply signed in front of a JP and sent back, with the divorcing being finalised in 2022.
When the Tribunal pointed out that it had been five years since he’d received any threats and 2 years since the divorce was finalised, the applicant indicated he feared that these relatives were still waiting around, waiting for a chance to do what they want to do, and that he feared the unknown.
The Tribunal has significant concerns about the credibility of the applicant’s evidence about this claim, for the following reasons.
Firstly, had the applicant genuinely feared that he would be hurt, tortured or killed by the relatives of his former wife, the Tribunal would have expected that he would have stayed in Australia and claimed protection on the first occasion he travelled here. Instead, he went back and forth to Fiji 4 times before lodging a protection visa application. This suggests to the Tribunal that the applicant did not fear harm in Fiji during 2017 and 2018, at odds with his claims he was being threatened 2 or 3 times a week. When this concern was raised with the applicant, he said he kept going back to Fiji because of his parents. The Tribunal has considered this evidence, but remains of the view that the applicant’s repeated return travel to Fiji suggests he did not then and does not now genuinely fear being seriously harmed or killed by his ex-wife’s relatives, as he has claimed.
Secondly, the applicant’s protection visa application makes no reference to this issue at all. At the outset of the hearing, the applicant gave evidence – which the Tribunal accepts - that when he completed his protection visa application in August 2018, his brother [Mr B] wrote the answers in the form for him and typed up the written statement, based on what the applicant told him. The applicant gave evidence he was confident the information in the form was correct. Given this, the Tribunal would have expected the fear of harm from the applicant’s former wife to be referenced in some way in the visa application form or accompanying statement, even if with errors or omissions in the details provided (noting the role of his brother in preparing the application). The Tribunal also notes that the protection visa application form asks applicants to indicate, by selecting an option to tick, what their relationship status is. Rather than ticking ‘separated’ as would seem to best fit the applicant’s circumstances in August 2018 (based on his evidence at hearing), the box ticked was ‘married’.
When these issues were raised with the applicant, he initially said that he did tell his brother (who filled out the form) about this issue, and (in relation to the boxes in the form) he referred to still being married when he filled in the form, but agreed he was separated at that point. Later in the hearing, the applicant also gave evidence that he didn’t mention this problem he was facing, and how he felt about the threats he was receiving from his former wife’s family, to his own family. The Tribunal has considered this explanation, but does not find it convincing as the applicant’s evidence was that his family was receiving threats themselves from his former wife’s relatives. Further, it contradicts his earlier evidence that he did tell his brother about this issue.
The Tribunal accepts that the applicant was married to [Ms A], that they separated prior to his move to Australia and that they were divorced in 2022. However, given the concerns outlined above, the Tribunal does not accept that he ever received threats from her family members or that threats were made to the applicant’s family, whether by phone, [social media] or through word of mouth. The Tribunal does not accept these family members ever looked for him in town. Accordingly, the Tribunal is not satisfied that he faces a real chance of serious harm or a real risk of significant harm on this basis.
Even if the Tribunal did accept that the applicant received threats as claimed, which it does not, the Tribunal would not be satisfied that the applicant faces a real chance of serious harm on this basis. The applicant gave evidence he has not received any threats from his former wife’s family members since 2019, in circumstances where his former wife must have had some kind of contact details for him (noting the applicant gave evidence she organised for divorce papers to be sent to him). He also gave evidence that his family members had not received any threats since 2019, in circumstances where they would be fairly easy to locate - noting that his mother remains living in the family home where the applicant formerly lived, including during periods of separation from his wife, and his two older brothers remain living in [Town 1]. Had the relatives of the applicant’s former wife still had any interest in harming him, the Tribunal would have anticipated they would have continued making threats against him or his family. The fact they have not suggests they are no longer interested in pursuing the applicant. Accordingly, the Tribunal would not be satisfied that the applicant faces a real chance of being seriously harmed by the relatives of his former wife, nor that he faces a real risk of being subjected to significant harm by the relatives of his former wife.
Government instability
At hearing, the applicant indicated he did maintain the claims set out in his protection visa application. The Tribunal drew his attention to these written claims:
He left Fiji because he felt unsafe and afraid for his safety. The current government has been a threat to him and he does not want to suffer when an upheaval occurs in the near future.
Life in Fiji is very tense, people are afraid in the lead up to the next election, fearful of what will happen if the result is not favourable to the current government.
The Tribunal asked whether these issues were still matters of concern to the applicant, noting that the elections being referred to had occurred (in November 2018) and that a further round of elections had also occurred since these claims were made. The applicant indicated that he did still have concerns about this issue.
The applicant gave evidence that he hadn’t been to Fiji for a while, he knew there was a new government, but that stories had been passed on to him indicating there were still a lot of problems. When the Tribunal asked if the applicant had any specific concerns, noting the change of government, he said that he didn’t know much about the current government.
The Tribunal accepts that there have been several coups and government instability in Fiji in the past. However, as discussed with the applicant at hearing, country information before the Tribunal indicates that the situation has changed. That information indicates that Fiji is generally stable and secure, and that politics are no longer characterised by the unrest of the past.[1] The 2018 elections were orderly and free from violence, and international observers found the conduct of the election to be credible.[2] The December 2022 elections were assessed as being free and fair overall, and while they resulted in a change of government the transition of power has been peaceful.[3] The leader of the miliary has publicly rejected ‘coup culture’ and stressed the importance of following constitutional processes.[4] There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in 2022.[5]
[1] DFAT Country Information Report – Fiji, May 2022 (paras 2.34, 3.32).
[2] DFAT Country Information Report – Fiji, May 2022 (paras 2.34, 3.32).
[3] Freedom House, 31 August 2023; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023 (p.11); ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023.
[4] ‘No coup says RFMF Commander’, FBC News, 20 July 2023 ( 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 2 August 2023.
Having regard to the country information cited, the change of government since the applicant’s written claims were made, and the very vague evidence the applicant gave as to his current concerns about this issue, the Tribunal is not satisfied that the applicant faces a real chance of serious harm due to elections, political instability, a change of government or any such issues in the reasonably foreseeable future.
For the same reasons, the Tribunal is not satisfied the applicant faces a real risk of significant harm due to elections, political instability a change of government or any such issues as a necessary and foreseeable consequence of his removal from Australia to Fiji.
Youth rights
At hearing, the Tribunal drew the following written claims to the applicant’s attention:
His rights as an individual and as a youth have been deprived and suppressed. His rights as a youth have been taken away from him since 2006 when the last military coup happened in Fiji.
He stresses over the fact he will have to live in a country where he cannot exercise his own rights as an individual.
When asked by the Tribunal what he was referring, to in terms of deprivation and suppression of rights, he gave evidence that nobody seems to care about what their desires are or their rights as youths, and that they are cast aside. When asked to give an example of this, the applicant gave evidence that he was involved in a youth group in his village, that they had applied verbally and in writing for funding from government to establish a youth project, but the request was just cast aside. When asked whether he would be involved in the same youth group on return to Fiji, the applicant indicated he didn’t think so, because of the headache and heartache.

The applicant clarified that the references in this part of his written application to ‘individual rights’ was also a reference to youth rights (rather than a separate issue or claim).
As discussed with the applicant at hearing, the Tribunal has doubts about whether the applicant would still be considered a youth – noting he is now [in his thirties]. However, even if he does again become involved in his local youth group and experience similar refusals of requests for funding for youth projects, the Tribunal is not satisfied that this would amount to serious harm. Neither is the Tribunal satisfied that such funding refusals would constitute significant harm, having regard to the legislative definition of that term. The applicant did not identify any other specific concerns or fears regarding youth rights. The Tribunal is not satisfied on the evidence before it that the applicant would otherwise face a real chance of serious harm or a real risk of significant harm for any reason associated with youth rights.
Freedom of speech
At hearing, the Tribunal drew the following written claims to the applicant’s attention:
Here he feels free and able to criticise and discuss matters about Fiji freely, not fearing that someone will report him to the police or military.
In Fiji they are suspicious of everyone as they don’t know who is on the current government’s side and who isn’t.
They can’t complain to NGOs because their employees could be supportive of the current government and report them.
Here he has been very vocal, able to challenge the Fiji government and its policies.
The applicant gave evidence that the issue he felt he could not speak about in Fiji due to fear of reprisals was criticism of the police, including that they accept bribes and hurt people without cause. He said that in Fiji, you can’t trust anyone as they may exaggerate what you’ve said and pass it on. The applicant gave evidence he’d never publicly expressed criticism of the government in Fiji, nor been a member of a political party.
The applicant gave evidence that in Australia, he’d just spoken with friends about the former government. He hasn’t spoken about the current government. He hasn’t publicly expressed any criticisms of the Fijian government or police since being in Australia, nor has he been involved in any political groups or organisations here.
The applicant gave evidence that he still holds the same concerns about the police in Fiji, but couldn’t ever talk about that with friends, as he’s done in Australia. He doesn’t think the situation, in terms of expressing criticism, has changed under the current government.
The Tribunal accepts the applicant’s evidence that he still holds concerns about the conduct of police in Fiji, noting country information before the Tribunal indicates that the Fiji police are affected by corruption and have been reported to commit violent acts.[6] The Tribunal notes the applicant’s written evidence that in Australia he has felt free to criticise matters of Fiji and has not feared that he will be reported for this. The Tribunal accepts that the only form of public criticism of the government the applicant has engaged in while in Australia (where he has been free from a fear of harm) is talking with friends, and considers that that is the only kind of criticism the applicant would want to engage in on return to Fiji. The Tribunal accepts that the applicant may not do this due to fear of harm, but has considered the risk to him if he does that – noting that he cannot be expected to act discretely to avoid harm,[7] and that concealing one’s true political opinion is an impermissible behaviour modification per s 5J(3)(c)(iii) of the Act.
[6] DFAT Country Information Report – Fiji, May 2022 (paras 5.8, 5.11).
[7] Appellant S395/2002 v MIMA (2003) 216 CLR 473.
Country information before the Tribunal indicates that while freedom of expression is protected by the Fijian Constitution,[8] in practice this is subject to broad caveats and can be limited by laws relating to national security, public safety/order, public health and the orderly conduct of elections.[9] There is evidence before the Tribunal that when the Bainimarama government was in power, high profile public figures, including the leaders of organisations seen to challenge the government’s authority or undermine its legitimacy, were at risk of negative attention, including arrest or detention under corruption charges and sedition charges.[10]
[8] DFAT Country Information Report – Fiji, May 2022 (para 2.30).
[9] DFAT Country Information Report – Fiji, May 2022 (para 3.25).
[10] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023 (p.7).
However, following the change of government in late 2022, the Rabuka government has taken steps to facilitate the return of several critics of the Bainimarama government to Fiji. People who were deported, threatened or forced to leave Fiji for speaking out against the Bainimarama government are being granted permission to return, and are doing so.[11] The government has reversed politically motivated travel bans against several high profile critics of the former government, such as former Vice Chancellor and President of the University of the South Pacific (USP) Pal Ahluwalia and Fijian academic Padma Lal.[12] Further, there is information before the Tribunal that legal proceedings against critics of the former government that commenced prior to the December 2022 elections have been discontinued or dismissed since the change of government.[13]
[11] 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 8 March 2023.
[12] 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023 (p.164).
[13] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023; ‘Richard Naidu's conviction not to be recorded and charge of contempt
This country information suggests that the situation has improved in Fiji, and that criticism of the government won’t be treated the same way it was under the Bainimarama government. Moreover, country information before the Tribunal indicates that even under the former government, it was high profile persons likely to attract adverse attention from authorities for making public criticisms, with even people posting online, members of political parties and members of NGOs only facing a low risk of adverse action from authorities.[14] There is no reference in country information before the Tribunal to people facing adverse action or attention from authorities simply because they have spoken with friends.
[14] DFAT Country Information Report – Fiji, May 2022 (paras 3.30, 3.38, 3.42).
When this information was explained to the applicant at hearing, he indicated he had no response.
The Tribunal is not satisfied on the evidence before it that, should the applicant speak to friends about concerns with the government and/or the police and express criticism of the government and/or the police to friends that he would face a real chance of being subject to adverse action by the Fijian authorities and/or government.
For the same reasons, the Tribunal is not satisfied that, should the applicant speak to friends about concerns with the government and/or the police and express criticism of the government and/or police to friends that he would face a real risk of being subject to adverse action by the Fijian authorities and/or government.
Land rights
At hearing, the Tribunal drew the applicant’s attention to the following claim set out in his protection visa application:
His family has land in [Town 1], [Province 1] passed down from their forefathers.
His right to his land that his family have owned since the habitation of Fiji is now at risk, they risk losing the land to the current government. The current government is forcing them to give their land to the Land Bank Authority, he fears the family land will be affected by the Land Bank Act.
The applicant confirmed that he remains concerned about this issue. He gave evidence that the government is trying to get their land, though it hasn’t happed yet. He said the government will claim any land that isn’t being used and put it in the Land Bank.
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 rights
At 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 health
At 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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Stefanie Memmott
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.
…

dismissed’, Fiji Village, 18 July 2023; ‘Tabuya and Lobendahn discharged after FICAC withdraws it’s case’, Fiji Village, 31 July 2023.