1903406 (Refugee)

1903406 (Refugee) [2024] AATA 1549 (1 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1903406

COUNTRY OF REFERENCE: Fiji
MEMBER:Sue Zelinka
DATE:1 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 March 2024 at 3:02pm
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinions – opposition to the Bainimarama Government – advocating for indigenous rights – fear of political violence – psychological harm – change of government – loss of traditional land – economic conditions – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 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 10 September 2018. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant would face a real chance of persecution if he returned to Fiji.
The applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant is [an age]-year-old man who arrived from Fiji in June 2018. His claims were set out as an attachment to his protection visa application. He claimed he had bad memories of the coups in Fiji in 2000 and 2006 and at the time of writing (2018) disapproved of the then- government. He felt that his rights as an indigenous Fijian, known as iTaukei, were being suppressed. This led to depression and the feeling that the Fijian government was psychologically harming him.
When the applicant came to the Tribunal hearing, he acknowledged that his statement was written at the time of the Bainimarama government and that the government has since changed. He did not wish to pursue claims against the government. The Tribunal acknowledged that the government had changed at the 2022 elections and noted that it gave weight to material prepared by the Department of Foreign Affairs and Trade (DFAT) in relation to Fiji. The applicant said he wished to pursue his claims about his land.
He stated that he no longer held his traditional land. His family had held a smallholding outside the village where they planted subsistence crops. He noted that land was not owned by individuals but that the land-owning unit – the clan – owns the land and the members of that clan then each have a portion. However, all the farming land outside the village which had been worked by families like the applicant’s was now owned by [Business 1], a private company. About 2016 or 2017, the government said it needed the rural smallholdings for a bigger economic enterprise and allowed [Business 1] to negotiate with the clan. There was a village meeting to vote on whether to lease the land to [Business 1] and the majority of the villagers agreed to the proposition. The land has been leased for a 99-year period. A cash sum was given at the beginning and payments are made every six months as rent for the lease.
The Tribunal put it to the applicant that the process appeared orderly: the village met and voted, the will of the majority was respected, and due payments have been made and are continuing to be made. The Tribunal asked how the applicant was attributing blame to the government for losing his farming land. He said that it was government policy to reclaim land for economic reasons and it had identified this area around the applicant’s village; and had sponsored [Business 1] to run the project. The Tribunal put it to the applicant that the village had voted, and the majority agreed to the lease. The applicant said that it was the older members of the families who voted – the younger ones like him were not consulted. Without their subsistence farming, there is no work in the village for the younger people. Many younger people like himself had to leave the village and seek work in bigger towns. He found casual work in a town, then he came to Australia.
The Tribunal asked where his family members were. He said his mother [and siblings] still lived in the village, relying on the six-monthly payments from [Business 1] as their source of income. Since he has been in Australia, he has formed a relationship and has partner and a [child].
The Tribunal put it to him that on what he had said about his land, it could not see how this grounded a refugee claim. It asked if he there were other reasons, he feared harm if he returned to Fiji. He said that people were not free to say anything against the government in Fiji, even at church. One of the members of his own church, the Methodist church, was grabbed when he came out of church for criticising the government. On reflection, the applicant added that this was a while ago when Bainimarama was in power. The applicant said Bainimarama did not like the Methodist church and once even stopped its annual conference. However, the applicant said he is not really worried about this sort of behaviour with the new (present) government. He talks to family and friends in Fiji by phone and no-one said that they were having any troubles, except economic ones. The applicant said that the cost of living was very high in Fiji and wages were low. He worries how he could establish himself if he went back to Fiji. The Tribunal put it to him that he found casual work in Fiji the last time he looked for it and added that he had acquired new employment skills whilst in Australia. The applicant agreed that he was now a certified [occupation 1] but doubted that he could find that sort of work in Fiji.
The Tribunal referred to the claims he made to the Department about his depression and asked if it was a condition requiring treatment, medication, or counselling. He said he was fine and did not need any ongoing treatment. He wrote it at the time because he was affected by things that had happened in Fiji: he saw people being subjected to torture and he could still visualise this later. The Tribunal explored this point and the applicant said he had seen footage on Facebook in 2016 of police hitting people with batons. There had been a jail break and the police, and the army went in to round up the escapees. The applicant said it pained him to think that people could do this (meaning hitting others with batons).
The applicant said it was always possible that there could be another coup in Fiji and the situation could be difficult. There had been coups in his lifetime, and it could happen again. The Tribunal asked if the applicant was involved in any political parties or activities while in Fiji. He said he had never been, but he was in the Methodist youth group. The Tribunal noted that it would have regard to reliable independent evidence such as provided by DFAT about the current political situation in Fiji.
The Tribunal put it to him that his concerns about returning to Fiji appeared to be economic ones, with a small worry that maybe one day another coup might take place. He agreed and said the main reason he wanted to stay in Australia was because of his partner and [child].
Analysis, reasons and findings
The Tribunal considered all of the applicant’s claims beginning including dissatisfaction with the government at the time of his departure; fear of political coups and associated violence; and discrimination against iTaulkei (ethnic Melanesian Fijians). As discussed with the applicant at hearing, the background to all these claims is a coup in 2000 and another, led by Frank Bainimarama, in 2006. The latter abolished race-based voter rolls and parliamentary quotas as well as the entire (unelected) upper house and the iTaukei Fijian Council of Chiefs (DFAT, Country Information Report: Fiji, effective from May 2022, para. 2.4). This reform process aimed at reducing the role of ethnicity in Fiji’s political life can be represented by some indigenous Fijians as an attack on iTaukei rights. However, the Tribunal gives weight to the DFAT assessment that “iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic, and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other” (ibid. at para. 3.10). The Tribunal does not find that the applicant faces any serious harm for reason of his being iTaukei.
The Tribunal acknowledges that there have been coups in Fiji’s recent past, the one in 2000 occurring when the applicant was [age] years old. Since the coup in 2006, there has been a new constitution in 2013 and general elections in 2014 and 2018, both judged credible by the Multinational Observer Group led by Australia (ibid., para. 2.4). More recently, a general election was held on 14 December 2022 with Bainimarama (whom the applicant does not like) losing and being replaced by the opposing party led by Sitiveni Rambuka. The applicant himself stated at hearing that he had no fears about returning to Fiji in the present political climate. The Tribunal finds that there is no real chance that the applicant will suffer serious harm in the reasonable foreseeable future for reason of his political opinion.
The applicant’s other claims related to economic matters. He was upset that he has lost his subsistence farm, but as the Tribunal put it to him at hearing, that was a majority decision of his clan, at which his family was represented. As the Tribunal put it to him at hearing, the process by which the village leased its farmland to a commercial company appeared orderly and lawful; the villagers, including the applicant’s own family, are receiving regular rental payments from the leaseholder (see para. 13-15 above). This is not a matter in which the applicant has been singled out for discriminatory treatment; nor is it one which has bearing on a refugee claim.
In terms of other economic claims, the applicant claims he will not be able to find a job when he returns to Fiji and, as discussed above, has nowhere he can do subsistence farming. The Tribunal notes that after he left the farm in 2017, he was able to find work (albeit casual work) in a larger town. He has been able to find work in Australia and has undertaken a training program which has given him formal qualifications in [occupation 1]. The Tribunal is not persuaded that he will be unable to find any form of work in Fiji. The Tribunal is not satisfied that the applicant will be unable to subsist and is not satisfied that he is at risk of significant harm for this reason.
The Tribunal has considered the applicant’s claim that he felt depressed and stressed in Fiji to the point of affecting his health (see para. 11 above). This was discussed with the Tribunal at hearing, and he stated that although he had been upset some years ago by seeing some violent images (see para. 17 above), he has no psychological problems. He has no conditions that require treatment, medication, or counselling. The Tribunal was persuaded by his oral testimony that he is fine and finds that he is not at risk of significant harm for this reason.
The applicant stated at hearing that he wanted to stay in Australia because he has formed a relationship and now has a partner and a [child]. He has acknowledged he has no fear of harm if he returned to Fiji. The Tribunal finds that the applicant does not have a well-founded fear of persecution in relation to Fiji.
The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution and therefore does not meet the definition of refugee in s 5H(1) of the Act..
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). As the ‘real risk’ test under the complementary protection criterion imposes the same standard ass the ‘real chance’ test under the refugee criterion, for the same reason a set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sue Zelinka
Member

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

[2024] AATA 1549

1 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice