1903422 (Refugee)

[2024] AATA 929

1903422 (Refugee) [2024] AATA 929 (12 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr John Benjamin Maurice Vevers (MARN: 1067816)

CASE NUMBER:  1903422

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Matthew Tubridy

DATE:12 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 February 2024 at 12:42pm

CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and political opinion – Indigenous Fijian opposed to government’s policies – land reform and suppression of culture – freedom of speech and social media activity in Australia – mental health – no medical or other documentary evidence – consent to decision without hearing – country information – recent election and change of government – political and economic conditions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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

1. The applicant is a national of Fiji who applied for a protection visa on 28 September 2018. On 9 February 2019 a delegate of the Minister (the delegate) refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate was not satisfied that the applicant would face a real chance of persecution in Fiji for one or more of the reasons mentioned in s.5J(1)(a), or that he would face a real risk of significant harm. On 14 February 2019 the applicant applied to have the Tribunal review the decision to refuse him the visa.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.

6. 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

7. 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

8. The applicant put forward claims to protection in writing in October 2018 as part of his Protection visa application. These can be summarised as follows:  

   ·     He is a citizen of Fiji, and an indigenous ethnic Fijian, who was born in [Year] in Fiji’s Ba Province. In 2018 he came to Australia to visit relatives and friends and with the intention of not returning to Fiji because he feels that his rights have been deprived, and he has not been able to feel free after all the restrictions the government have laid on people, and he has been discriminated against as an indigenous Fijian. Having made two earlier trips to Australia in 2018, he found that he experienced true democracy and human rights here, and he decided that staying in Australia was the best way to get out of a country where there is a lot of racial/ethnic discrimination.

   ·     In Fiji, as an indigenous person, he has been deprived of his land, his right to voice his opinion and his right as youth; and he has been discriminated against and this has psychologically affected him. If he returns to Fiji his basic human rights will be deprived, and because he has enjoyed this in Australia, he has become healthier mentally and physically and less depressed. He fears that after seeing and exercising the freedom of speech, that is the right to criticise his government on social media, and to be able to discuss his problems, he will be reprimanded on return because he comments and expressed his opinion against the government on social media.

   ·     If he returns to Fiji, the psychological depression that he went through for over four years in Fiji (2014 to 2018) will continue, and will get worse and could result in his committing suicide. Life in Fiji was very depressing for him as all the doors were closing down on him, and he does not want that to happen to him again. For the last four years (2014 to 2018) he was able to realise the restrictions that had been put: on us as indigenous and as individuals. He learned about human rights in school, and read about it online, and yet could not practice it in his own country, and this depressed and tormented him. He thought that after finishing his schooling things were going to be better. Instead, he was discriminated against as an indigenous person.

   ·     He is still deprived of the right and freedom to express himself, and he cannot question or challenge the government on its decision end his contract after the first year. He cannot voice his opinion for fear of being reprimanded by the police and the military. There is no freedom of expression in Fiji. The media is controlled by the government and people like him are afraid of challenging the government because it affected his life, and his family can also suffer. He could not voice his frustration and he was becoming angry very fast. He was also becoming violent to be able to get rid of his frustration with the system and the way Fiji was going.

   ·     The discriminating government policies that have been put in place by the current government against indigenous Fijians have psychologically affected him and caused him depression. These included: the government not recognising indigenous rights, the Land Bank that the government wanted to implement, and no freedom of expression; and government policies against indigenous people. The government is very suspicious and sends out people in disguise to report on individuals who openly challenge them.

   ·     There is no freedom of expression, and the media is controlled by the government. The country is not a democratic country and youths have no voice. He comes from a very traditional community and our Fijian traditional values are instilled into him and his siblings as children and they value them, and seeing these traditional values and their culture suppressed and ignored by the current Fijian government has made him depressed, and at times he feels like taking the law into his own hands, and physically abusing and challenging the current government; but he knows this would result in his being imprisoned, and so he stomachs all the issues and suffers psychologically.

   ·     He does not know of any organisation in Fiji that is available to help youths who are suffering in silence and have psychological trauma like he does. The only consolation he had was the Church youth group where he was heard if he had something to complain about, and was a shoulder to cry on, and where he could get his questions answered when he felt depressed and neglected by the government and deprived of his basic human rights.

   ·     The government has not changed its stand and continues to deprive people and we see this in the news and on social media every day. People are charged with sedition when they publicly challenge the government. People are afraid in the (2018) lead up to the election about what can happen if the election is not favourable to the current government.

   ·     He cannot find safety in another part of the country because it is the government that is the threat, and if he moves his whole village will be implicated, and he would be seen as the one causing trouble, and he does not want his village to be stigmatised. He also cannot relocate because he lived in his village his whole life, and his village is the safest place for him to be in Fiji, and his village is where he has his relatives and extended family who have been very supportive.

   Receiving Country

9. The applicant claims to be a citizen of Fiji who was born in [Year] in Fiji’s Ba Province. The applicant has provided a copy of his Fiji passport which was issued [2015] (valid until [2015]) and the details of which are consistent with his claims regarding his identity and citizenship, and which lists his nationality as Fijian. The Tribunal notes that the applicant has indicated that both of his parents were citizens of Fiji, and that as such he satisfied the requirement under Fijian citizenship law at that time, that one or both parents must be a citizen.[1] The Tribunal also notes that the status of person who obtained their citizenship of Fiji in this way has not been disturbed by any subsequent modifications of Fiji citizenship law (which became more inclusive, and now gives citizenship to any person born in the country, except in circumstances where one of the parents is a foreign diplomat in Fiji and neither of the parents are citizens).[2] I accept that the applicant is a citizen of Fiji, and I find him to be a national of Fiji, and I finds Fiji to be his receiving country for the purpose of this review.

   [1] Dziedzic, A. 'Comparative Regional Report on Citizenship Law: Oceania', Global Citizenship Observatory, 18 February 2020, 20200902084006, p.8; Constitution of the Sovereign Democratic Republic of Fiji (promulgated 25 July 1990), CIS1D85456315;

   [2] Dziedzic, A. 'Comparative Regional Report on Citizenship Law: Oceania', Global Citizenship Observatory, 18 February 2020, 20200902084006, p.8; Fiji Constitution Amendment Act 1997, CISFCE36B0459; Citizenship Act 1998; Citizenship Act (Amendment) Decree 2000, CX137054; Citizenship of Fiji Decree 2009, CIS28099; Citizenship of Fiji Act 2009.

   Invitation to Hearing, and to provide further Submissions & Information/Documents

10. On 6 December 2023 the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held on 23 January 2024. He was also invited to provide all documents he intended to rely upon by 19 January 2024, and to provide any further submissions or information he might wish; and he was advised that he should have regard to the reasons the Department gave for refusing his application in providing documents in preparing for the hearing, and he should also have regard to any changes in his circumstances.

11. On 17 January 2024 the Tribunal received correspondence which indicated that the applicant had appointed a representative (a registered migration agent). The applicant’s representative wrote to the Tribunal: We are instructed that the review applicant does not wish to attend the hearing before the AAT scheduled for 23 January 2024; and: Further, we are instructed that the review applicant seeks to have a decision made by the AAT on the papers before it. I note that no reasons were provided for why the applicant had elected not to appear before the Tribunal, nor why he had not provided the Tribunal with any documents on which to rely as evidence of his claims, nor any particulars as to why he disagreed with the delegate’s decision. 

    Consideration of applicant’s protection claims on the papers before it

12. The applicant’s October 2018 protection claims principally identify the policies of the “current government” of Fiji as his reason for not wishing to return to his country. The Tribunal notes that the current government of Fiji in October 2018 was constituted by the FijiFirst party led by Josaia Voreqe (‘Frank’) Bainimarama. Bainimarama is himself an indigenous Fijian, and the former commander of the Fijian military (the Republic of Fiji Military Forces or RFMF).[3] Bainimarama came to power in a December 2006 coup against the May 2006 elected government of then prime minister, Laisenia Qarase (also an indigenous Fijian, and the leader of the then Soqosoqo Duavata ni Lewenivanua (SDL) party), with Bainimarama declaring a need to restore good governance and multi-racialism, and accusing Qarase’s government of corruption, incompetence and racism; with observers suggesting that Bainimarama was dissatisfied with Qarase’s affirmative action program (of scholarships and subsidies for education of indigenous Fijians), plans to give ownership of certain coastal areas to traditional owners, plans to grant an amnesty to the ethno-Fijian nationalists who had staged a coup in 2000, and plans to remove Bainimarama from his position as RFMF commander.[4]

    [3] Freedom House, 'Freedom in the World 2011 - Fiji', 21 June 2011, CX267567.

    [4] Fraenkel, J, ‘Fiji: The politics of conflict reduction’, in Diminishing Conflicts in Asia and the Pacific, Routledge, 2013, CIS25155, pp.176-177; Lal, B.V. 'Fiji Indians and the Fiji general elections of 2014: Between a rock and a hard place and a few other spots in between', p.74, and Lawson, S. 'Chiefly leadership in Fiji after the 2014 elections', p.50, both in: in: Ratuva, S. & S. Lawson eds. The People Have Spoken: The 2014 Elections in Fiji, ANU, March 2016, CIS38A8012633.

13. Bainimarama subsequently undertook a program of reform aimed at reducing the role of ethnicity in Fiji’s politics;[5] including by introducing the 2013 Constitution that abolished various measures which gave paramountcy to the Fiji’s majority indigenous population (the iTaukei), including race-based voter rolls and race-based quotas on parliamentary seats, and he also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs (considered the paramount symbol of indigenous Fijian traditionalism).[6] He also sought to effect change to the way the leasing of traditional owned land was managed. This is a significant matter in Fiji, where about 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land;[7] and where most cash crop farmers are Indo-Fijians, the majority of whom were descendants of colonial-era indentured laborers, and who must lease land from ethnic Fijian traditional landowners.[8] Beginning in 2009, a series of new laws and amendments were introduced to give the government increased control over deciding the leasing agreement process; and the manner in which payments were dispersed was also changed such that income from leased land would, in future, be distributed equally among all mataqali members (that is, the indigenous Fijian collective land owning clan or tribal unit), with no chief or titleholder receiving a larger share than any other mataqali member.[9]

    [5] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.3.

    [6] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.4; Lawson, S. 'Chiefly leadership in Fiji after the 2014 elections', p.41, in: Ratuva, S. & S. Lawson eds. The People Have Spoken: The 2014 Elections in Fiji, ANU, March 2016, CIS38A8012633.

    [7] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.25.

    [8] USDOS, ‘Fiji 2022 Human Rights Report’, 20 March 2023, 20230322095436, p.8.

    [9] Bhim, M. 'Stifling Opposition: An Analysis of the Approach of the Fiji Government after the 2006 Coup', ANU School of International, Political and Strategic Studies, June 2011, CIS29380, p.13.

14. The Bainimarama government also established the “Land Bank” under the 2010 Land Use Decree, administered by the Ministry of Lands, for the purpose of leasing land from indigenous landowning units through the iTaukei Land Trust Board (TLTB) and subleasing the land to individual tenants for lease periods of up to, but no more than, 99 years[10] (though recent DFAT reporting indicates that land is usually leased for 30 years, though residential leases can be longer).[11] While landowners can state their preference for the land’s use, they have little control over who the land is subleased to once it has been registered with the Land Bank. In 2016 the US Department of State: The Land Bank began leasing land directly to tenants without TLTB involvement and sometimes with significant pressure on landowners to “deposit” their land in the land bank;[12] and many ethnic Fijians believe the rental formulas prescribed in national land tenure legislation discriminated against them as the resource owners, while many Indo-Fijians believe their dependence on leased land constitutes de facto discrimination against them.[13]

    [10] Phillips, T. & M. Keen, 'Sharing the City: Urban Growth and Governance in Suva, Fiji', ANU, 27 September 2016, CIS38A80122052, p.8; USDOS, ‘Fiji 2015 Human Rights Report’, 13 April 2016, OGD95BE926228, p.22.

    [11] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.25.

    [12] USDOS, ‘Fiji 2015 Human Rights Report’, 13 April 2016, OGD95BE926228, p.22.

    [13] USDOS, ‘Fiji 2015 Human Rights Report’, 13 April 2016, OGD95BE926228, p.22; USDOS, ‘Fiji 2022 Human Rights Report’, 20 March 2023, 20230322095436, p.18.

15. In 2016 it was reported that land disputes persist in Fiji (notwithstanding the country’s neatly delineated mapping of land ownership), and that disputes have also come to include traditional owners participating in the Land Bank system who resent their loss of control over how their land is leased to and then made use of by tenants. It was also reported at that time that the Land Use Decree restricted the jurisdiction of the courts and therefore limited the ability of landowners to seek protection and redress.[14] Even so, a 2018 survey of 4,910 Fijians from all four divisions of Fiji (from diverse backgrounds), found that: Eight out of ten people who experienced a land dispute took some form of action to resolve it (with the TLTB playing a significant role in resolving such disputes, along with clan leaders (mataqali) and the village council.[15] People also made use of various tribunals to pursue complaints regarding other kinds of contractual disputes.[16] It is not apparent that Fiji’s indigenous Fijian population have been excluded from such processes, or that they have been subjected to any adverse attention from the authorities or any other actor as a consequence of seeking redress in such a manner; indeed, as will be apparent from the above, some of the dispute resolution mechanisms available made use of traditional indigenous authorities like clan leaders (mataqali).  

    [14] Phillips, T. & M. Keen, 'Sharing the City: Urban Growth and Governance in Suva, Fiji', ANU, 27 September 2016, CIS38A80122052, pp.6, 8-9.

    [15] HiiL, 'Justice Needs and Satisfaction in Fiji', The Hague Institute for Innovation of Law, October 2019, 20221103115602, pp.65-66.

    [16] HiiL, 'Justice Needs and Satisfaction in Fiji', The Hague Institute for Innovation of Law, October 2019, 20221103115602, p.105

1. Given this, it is difficult to believe that that the applicant would not have made use of such a mechanism redress for making a complaint and seeking redress if he had actually felt deprived of his right to his land (in the sense of his being deprived of a particular parcel of land which he considered himself to own, whether privately or collectively), or if he had felt that the government had ended a contract (to which he was a party) unfairly; since it is not apparent that he would have faced a real chance of harm had he done so. Given this, and given also that the applicant has not provided any documentary evidence of his having been deprived of his land, or of his having been party to a contract which was ended by the government, and given that he has provided no specific details about either matter, I am not satisfied and I do not accept that in Fiji the applicant was deprived of his right to his land (in the sense of his being deprived of a particular parcel of land which he considered himself to own, whether privately or collectively; or by way of his being among those ethnic Fijians whose land had been registered into the Land Bank system and who felt discriminated against by the manner in which the lease of their land was negotiated by the government), or that he was party to a contract which was ended by Fiji’s government. I am therefore not satisfied that the applicant would face a real chance of harm of any kind on such a basis.

2. Notwithstanding this, it is not implausible that the applicant as indigenous Fijian may have felt he was being discriminated against in a broader sense (as part of the indigenous Fijian community), and that traditional Fijian values and culture were being suppressed; since it was reported of this period that many ethnic Fijians considered the Bainimarama regime was enacting policies that were dismissive towards Fijian institutions and protocols, including its: altering the formula of land rent distribution (as noted above, many indigenous Fijian landowners believe that the rental formulae prescribed in the national land tenure legislation discriminate against them as the resource owners), and its abolishing the Great Council of Chiefs, and using ‘Fijian’ as the name for all Fijian citizens irrespective of ethnicity, and appointing the chairmen of provincial councils, and dismantling many race-based affirmative action programs (and despite constituting a majority, some Fijians continued to feel a sense of economic marginalisation).[17] Even so, Bainimarama’s FijiFirst party went on to win the 2014 and 2018 elections with support from both indigenous Fijians and Indo-Fijians, and defeating the then principal opposition party, the Social Democratic Liberal Party (SODELPA), which promised that it would turn back many of and Bainimarama’s reforms, and whose supporters were largely indigenous Fijians;[18] and both elections were judged to be credible by the Multinational Observer Group led by Australia.[19]

   [17] Lal, B.V. 'Fiji Indians and the Fiji general elections of 2014: Between a rock and a hard place and a few other spots in between', in: Ratuva, S. & S. Lawson eds. The People Have Spoken: The 2014 Elections in Fiji, ANU, March 2016, CIS38A8012633, p.74; and: DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787, 2.48, 3.12.

   [18] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.4, 3.3-3.4, 3.14 3.31; MacWilliam, S. '"Not with a bang but a whimper': SODELPA", pp.220-221, in: Ratuva, S. & S. Lawson eds. 'The People Have Spoken: The 2014 Elections in Fiji', ANU, March 2016, CIS38A8012633.

   [19] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.4.

3. This noted, some persons did face problems under the Bainimarama government for making public criticisms of his administration in terms of legitimacy and its broader policies. This was particularly so in the immediate aftermath of the 2006 coup. At that time DFAT reported that there had been numerous instances of harassment threats, intimidation and abuses (including instances of serious physical assault) against people opposed to the 2006 coup, or the perpetrators of the coup. This included deposed politicians and senior officials, also activists and union leaders and journalists, and also some lower profile persons such as citizens who had written letters to newspapers; and in February 2007 DFAT reported that the RFMF who had been quick to target anyone who has spoken out, such that few people opposed to the military or the interim Government were then willing to speak out in public.[20] Matters thereafter began to ease, but even in 2011 it was reported by Freedom House that: critics of the military regime were silenced through legal suits, arrests, and the suspension of pensions, among other measures, and that the government appeared to target anyone who spoke out against the regime; and the government created the Media Industry Development Authority (MIDA) to enforce more restrictive media laws that were adopted at the end of 2009.[21]

   [20] DFAT, 'Country Information Report No. 07/15: Coup related harassment, threats, and human rights abuses', 13 February 2007, CX171169.

   [21] Freedom House, 'Freedom in the World 2011 - Fiji', 21 June 2011, CX267567.

4. But from 2014 Freedom House has consistently that there were no confirmed reports of government restrictions on private discussion on political matters or other sensitive topics; and that personal blogs and other forms of social media, for and against the interim government, operated with relative freedom, unlike traditional media where the government continued to use strict controls to silence critics; noting, for example, that in April 2014 the MIDA found Fiji One News guilty of ‘hate speech’ for broadcasting a traditional chief's public comment on poverty among indigenous people; and in February 2015, the MIDA ruled that the Fiji Sun newspaper had violated the law in a report that alleged SODELPA ran on race and land issues during the 2014 elections.[22]

   [22] Freedom House, 'Freedom in the World 2015 - Fiji', 15 April 2015, NG5A1E6BC195

5. By 2017 DFAT reported that even union leaders and members of opposition political parties were at a low risk of being arbitrarily detained or otherwise harassed; though leaders of opposition political parties faced a moderate risk of this, as were outspoken members of activist groups, and there continued to be instances of such political leaders being detained and questioned by police.[23] DFAT also reported that the media was affected by a high degree of self-censorship, and never expressly criticised the government, and that charge of sedition brought against the Fiji Times in 2017 for publishing a letter alleged to be inciting communal antagonism toward Muslims, was widely interpreted as a government effort to intimidate the Fiji Times, arguably the most independent and widely read publication in Fiji.[24] The persons charged were eventually found not guilty by the High Court in 2018;[25] though that same year saw various reports of legal action being taken or contemplated by the authorities in response to criticisms published in the media (which one monitor asserted was creating a chilling effect in the country, ahead of the 2018 elections), and two politicians charged with sedition for spray painting antigovernment slogans.[26] In 2019 two New Zealand journalists were arrested and briefly detained when investigating a Chinese development firm in 2019 (the journalists were released and received an apology from Prime Minister Bainimarama who blamed ‘rogue’ police for the action).[27] More recent years have seen less evidence of such incidents and (notwithstanding concerns about a level of ongoing self-censorship), and much more evidence of press freedom in Fiji, and the publication of articles critical of the government.[28]

   [23] DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787, 3.42-3.46, 3.50. 

   [24] DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787, 3.64-3.67; and see: Freedom House, 'Freedom in the World 2018 - Fiji', 5 October 2018, NGED867A610043.

   [25] USDOS, ‘Fiji 2018 Human Rights Report’, 13 March 2019, 20190314114844, p.8; DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787, 3.67.

   [26] CIVICUS Monitor, 'Criminalisation of free speech creating chilling effect, as elections draws near', 8 August 2018, CIS7B8394110469.

   [27] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.46; USDOS, ‘Fiji 2019 Human Rights Report’, 11 March 2020, 20200312105300, p.8.

   [28] USDOS, ‘Fiji 2020 Human Rights Report’, 30 March 2021, 20210331121039; USDOS, ‘Fiji 2021 Human Rights Report’, 2 April 2022, 20220413131329, pp.8-9; USDOS, ‘Fiji 2022 Human Rights Report’, 20 March 2023, 20230322095436, p.8; Freedom House, 'Freedom in the World 2022 - Fiji', 28 September 2022, 20220928104557, p.4; Freedom House, 'Freedom in the World 2023 - Fiji', 1 August 2023, 20230831112859, p.8.

6. Moreover, since the time of the 2014 elections commentators have reported that ordinary Fijians (including young Fijians) have enjoyed freedom to publicly criticise the government on social media; and it was reported of Fiji’s 2014 general election that (in an environment where the traditional media was restricted) social media had become the ‘Fiji election battleground’.[29] By 2017 DFAT reported that social media was becoming a significant forum for political discussion in Fiji, with approximately 440,000 Facebook users and an active Twitter and blogger community (this notwithstanding a 2016 warning from Bainimarama that social media and freedom of speech must not be misused to cause division and upset).[30]

   [29] Vakaoti, P. ' Fiji elections and the youth vote—token or active citizenship?’, pp.161, 165, 170-171, in: Ratuva, S. & S. Lawson eds. 'The People Have Spoken: The 2014 Elections in Fiji', ANU, March 2016, CIS38A8012633.

   [30] DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787, 3.69.

7. The contrasting situation (between the situation for high-profile persons, and the broader community) was in evidence in September 2017 when six prominent figures (three were leaders of prominent political parties and the group included two former prime ministers, a party member, an NGO leader, and a trade unionist) were detained and questioned by police after taking part in a panel discussion hosted by a Suva-based NGO to discuss views critical of Fiji’s 2013 Constitution, while social media criticism of these arrests received no adverse attention;[31] and it was reported that while aforementioned high-profile persons were, a growing group of young ‘tech-savvy’ Fijians reportedly gathered outside the police station and tweeted #FijiCrackdown and live-streamed their political views, shared updates, videos and tags, and engaged a larger audience of concerned Fijians both in Fiji and abroad (and it was observed in this respect that that social media was creating an alternative space for freedom of expression and assembly).[32]

   [31] 'Through social media, Fiji's youth challenge the political elite', Interpreter, The (Lowy Institute for International Policy), 20 September 2016, CX6A26A6E9457; DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787, 3.45.

   [32] 'Through social media, Fiji's youth challenge the political elite', Interpreter, The (Lowy Institute for International Policy), 20 September 2016, CX6A26A6E9457.

8. By the time of the 2018 election it was reported that there were over half a million Facebook accounts in Fiji, with most of these estimated to be owned by users within the ages of 18 to 35; and a study of social media found that cynicism against FijiFirst escalated in the three years leading up to the 2018 elections, and that there was a considerable level of cynicism and ridicule towards FijiFirst’s social media pronouncements in the lead up to the November 2018 elections.[33] It is not apparent that criticism of this kind (that is, from persons who were not politicians or journalists or high-profile or prominent persons of some other kind) resulted in any adverse attention from the authorities or any other actor.

   [33] Tarai, J. ‘Social media and Fiji’s 2018 national election’, Pacific Journalism Review, 31 July 2019, pp.60-61, 20240131111827.

9. The applicant claims that after arriving in Australia in 2018 he took advantage of the right to criticise Fiji’s government on social media, and he fears if he returns to Fiji he will be reprimanded because of this. But he has not provided any documentary evidence of his having made any such social media posts, or even any details as to what criticisms were made in these purported social media posts, or the social media platform platforms involved. I am not satisfied, and I do not accept that the applicant has made any such social media posts criticising Fiji’s government while in Australia. The applicant claims that he was unable to criticise government of Fiji in the years leading up to the 2018 election because he was fearful that if he did so he would have been reprimanded by military and police, and/or charged with sedition. I accept that the applicant is a young indigenous Fijian, but given that the applicant is not a politician or a journalist or a high-profile or prominent figure of some other kind, I am not satisfied that he would have faced a real chance of harm if he had made criticisms of the government during the years immediately prior to his 2018 departure for Australia, including publicly by way of social media. Indeed, and while I am willing to accept that he did not make any public criticism of the then government on social media during this period, I consider that this indicates that the applicant had no interest in doing so, rather than that he was affected by a fear of harm.

10. I can accept that like many indigenous Fijians the applicant may have an unfavourable view of the then FijiFirst goverment, and that felt its policies were discriminating against him in a broader sense (as part of the indigenous Fijian community), and that traditional Fijian values and culture were being suppressed by polices like the Land Bank program. I can also accept that he may have complained about such matters in private conversations with others (such as at his Church youth group), but I am not satisfied and I do not accept that he has any interest in making public statements of this kind, such as by way of social media, whether these be criticisms of the Fijian government, or statements about the treatment of Fiji’s indigenous community, or about racial or cultural matters in Fiji more broadly.

11. Given this, I do not accept that the applicant experienced any depression (or any other kind of psychological harm) as a consequence of a feeling that he was unable to speak out about this or any other matters. As noted already, and for the reasons already given above, I do not accept that the applicant was deprived of his right to his land, or that he was party to a contract which was ended by Fiji’s government, and given this I do not accept that the applicant experienced any depression (or any other kind of psychological harm) as a consequence of any such matter, or his feeling unable to question or challenge the government on such matters, or because of any sense of a lack of freedom of expression.

12. The applicant has otherwise given no specific indication of how he was discriminated against as an indigenous person, or how it was that his traditional values and culture were being suppressed (or how it was that he was being deprived of his indigenous rights, and his rights as a youth, and his rights more broadly, including basic human rights, and freedom of expression, and of true democracy, or how was that he felt all the doors were closing down on him) other than to refer to the Land Bank that the government wanted to implement; and while I can accept that like many indigenous Fijians the applicant considered that this and the broader policies of the then Bainimarama FijiFirst government were discriminatory toward indigenous Fijians and dismissive (or suppressive) of their values and culture, I find it difficult to believe that such matters would have caused the applicant harm whether mental or physical (and as note already, I am not satisfied that the applicant felt he was unable to speak out about of such matters out of fear, and so I do not accept that this would have contributed in any way to his developing mental health problems). The applicant has, moreover, provided no medical or any other kind of documentary evidence to establish that he was affected by depression when he was in Fiji, or that when he arrived in Australia in 2018 he had mental and physical health problems which had improved by the time he lodged his Protection visa application later that year. Given all of this, I am not satisfied, and I do not accept, that the applicant ever was affected by any mental or physical health problems as he claims, nor do I accept that he became violent out of frustration of being unable to voice criticism of the then government, or that he has had any interest in taking the law into his own hands (and physically abusing and challenging the current government).

13. It is in the context of the above findings, and the past and subsequent country information about the situation in Fiji, that I will consider the applicant’s claims to fear that if he were to return to Fiji.

14. Since 2018 there have been occasional examples in Fiji of persons facing legal action for having made posts on social media which Fiji’s government or authorities have reacted to adversely. But such incidents have generally been limited to criticisms of Fiji’s government or other authorities which have been made by high-profile figures like political leaders, or their family members, or other prominent persons in Fiji society, and/or persons who have made statements about matters of a very specific and/or sensitive nature (such as the 2019 cases of several figures of authority alleged to have spread of misinformation about COVID-19; or politicians and lawyers who have made comments alleged to undermine judicial authority).[34] Beyond this, there has been little wider evidence in recent years of members of the broader Fijian community facing any problems for publicly criticising the Bainimarama government online, notwithstanding that the Fijian community has continued to publicly express criticisms of government policy, including about its land policies.

    [34] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.28; USDOS, ‘Fiji 2019 Human Rights Report’, 11 March 2020, 20200312105300, p.9; USDOS, ‘Fiji 2020 Human Rights Report’, 30 March 2021, 20210331121039, pp.9-10; USDOS, ‘Fiji 2021 Human Rights Report’, 12 April 2022, 20220413131329, pp.9-10; Freedom House, 'Freedom in the World 2021 - Fiji', 19 August 2021, 20210819081251; Freedom House, 'Freedom in the World 2022 - Fiji', 28 September 2022, 20220928104557; Freedom House, 'Freedom in the World 2023 - Fiji', 1 August 2023, 20230831112859.

15. For example, in 2021 the Bainimarama government sought to amend section 12 of the iTaukei Land Trust Act of 1940, to remove the requirement of obtaining the consent of the iTaukei Land Trust Board for any mortgage, charge, pledge or caveat on a lease or for any such lease to be dealt with by any court of law or under the process of any court of law. The planned amendment (widely known and referred to as ‘Bill 17’) was reportedly contested fiercely by opposition parties, public figures, and by individual citizens; and it reportedly sparked a debate of controversial proportion on social media, and an online petition which reached over 30,000.[35] Nine politicians (considered leaders of the opposition parties and indigenous rights advocates) were taken for questioning by police about their criticisms.[36] But more broadly, the only evidence of any individual citizens receiving any adverse attention during this controversy involved the arrest of a man from Western Fiji for making social media posts which police alleged were “inciting violence"; after he allegedly posted the message calling on members of the i-taukei community to arm themselves and fight members of the Muslim communities and called on those residing in the greater Suva area to detain a senior Government member;[37] and which occurred at a time when the northern island of Taveuni had just seen a mosque and a Muslim owned shop set ablaze.[38] Fiji’s police also issued a statement that: freedom of speech and expression comes with responsibilities and people need to be cautious about comments that are aimed at inciting civil unrest as it will be investigated; and should not allow their emotions to cloud their judgment when making comments on the proposed Bill.[39] But beyond the examples noted above (the nine politicians, and the man from Western Fiji), it is otherwise not apparent that any individuals were reprimanded for expressing their opinions about this matter.

    [35] Mitchell, J. 'Storm in a teacup', Fiji Times, The, 25 July 2021, 20210727081851; Anthony, M. 'Fiji’s political turmoil: everything you need to know', The Guardian, 04 August 2021, 20210810085140

    [36] Rovoi, C. 'Fiji govt urged to scrap plan to amend Land Bill', Radio New Zealand (RNZ), 1 August 2021, 20210806081308; USDOS, ‘Fiji 2021 Human Rights Report’, 2 April 2022, 20220413131329, p.8.

    [37] Anthony, M. 'Fiji’s political turmoil: everything you need to know', The Guardian, 04 August 2021, 20210810085140; Fiji Police Force, "Man Questioned For Allegedly Inciting Civil Unrest", Fiji Sun, 26 July 2021, 20210727084138.

    [38] Anthony, M. 'Fiji’s political turmoil: everything you need to know', The Guardian, 4 August 2021, 20210810085140; 'Former Fiji prime minister detained by police over Land Bill comments', Radio New Zealand (RNZ), 27 July 2021, 20210727083024.

    [39] Fonua, T. 'Your Land Is Safe: PM', Fiji Sun, 26 July 2021, 20210728084318; 'Former Fiji prime minister detained by police over Land Bill comments', Radio New Zealand (RNZ), 27 July 2021, 20210727083024.

1. Among the little evidence there is of any lower profile figures experiencing problems in recent years, is the 2019 case of a 16-year-old boy who was reportedly taken from his home by men claiming to be from the army. The men reportedly questioned the boy for two days after he posted a picture of graffiti critical of Prime Minister Bainimarama on Facebook;[40] and according to a Fiji Times report: he was allegedly linked to a post on social media where vulgar words directed at Prime Minister.[41] According to DFAT the facts of the case are disputed and DFAT is not aware of the outcome of incident.[42] But beyond this, there is little evidence of persons (who are not high-profile or prominent figures) experiencing problems for having been critical of Fiji’s government online. Indeed, in its 2022 report on Fiji DFAT assessed that (although the risk is much higher for high-profile individuals, who may find themselves subject to questioning by police, long court cases or prosecution under the Public Order Act) social media users who criticise the Government face a low risk of official discrimination.[43]

   [40] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.29.

   [41] ‘Boy grilled over post’, Fiji Times, 25 September 2019, 20240131112434.

   [42] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.29.

   [43] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.30.

2. In December 2022 Fiji held general elections, and Bainimarama’s FijiFirst party again won the largest share of the vote (42.5 percent, securing 26 seats). But this was not enough to secure a majority, and FijiFirst was unsuccessful in negotiating the support of SODELPA who had themselves won just three seats, and who after several days of negotiations reached a deal to form a government with the newly formed People’s Alliance Party (36 percent of the vote with 21 seats; led by Sitiveni Rabuka), and its coalition partner the National Federation Party (9 percent of the vote with five seats). Sitiveni Rabuka was sworn in as prime minister, and international observers assessed the electoral process as free and fair overall, despite some initial concerns with the pace of rolling results announcements and a glitch in the official reporting app that took it offline early in the count.[44]

   [44] USDOS, ‘Fiji 2022 Human Rights Report’, 20 March 2023, 20230322095436, p.11.

3. In the immediate aftermath of the formation of the Rabuka led coalition government, there were reportedly concerns within Fiji and overseas about the vulnerability of a coalition government to a coup, owing in particular to Bainimarama's reluctance to concede defeat.[45] The government’s suspension of a number of senior officials and public remarks about constitutional changes prompted the RFMF Commander Major General Jone Kalouniwai to express concern refer to the ‘guardian’ role of Fiji’s military (a vague and controversial section of the 2013 constitution that charges the RFMF with responsibility for the ‘well-being’ of Fiji and its people).[46] But Bainimarama ultimately conceded defeat, and in March 2023 it was reported that Fijian officials, business leaders, citizens, foreign diplomats, and observers were cautiously optimistic that Rabuka's coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji's democratic institutions;[47] this notwithstanding that in February 2023 the parliament’s Privileges Committee had suspended Bainimarama from parliament for three years, after the Deputy Prime Minister alleged that Bainimarama made remarks in parliament that used words denigrating and humiliating to the President (Fiji’s head of state).[48]

   [45] Schneider, N. 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244; and see also: O’Brien, P. 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023, 20230605132703.

   [46] Waqavakatoga, W. 'Fiji’s tenuous grip on political stability', East Asia Forum, 16 January 2024, 20240131111425.

   [47] Schneider, N. 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244.

   [48] O’Brien, P. 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023, 20230605132703.

4. In April 2023 Fiji’s parliament repealed the iTaukei Land Trust (Budget Amendment) Act known as Bill 17,[49] and in May 2023 the CIVICUS Monitor[50] (which in 2018 had asserted that threats of legal action against the media were creating a chilling effect in the country) now related that: In a positive step for press freedom, on 6th April 2023, the Parliament of Fiji voted to repeal the Media Industry Development Act (MIDA) which was enacted in 2010 by the government that assumed power through a coup in 2006; and that the Prime Minister Sitiveni Rabuka had said media freedom and freedom of expression are the “oxygen of democracy". It was also reported that the Great Council of Chiefs (regarded as the apex of traditional Fijian leadership) had reconvened for the first time in 16 years.

   [49] ‘Parliament repeals Bill 17’, Fiji Times, 7 April 2023; Waqavakatoga, W. 'Fiji’s tenuous grip on political stability', East Asia Forum, 16 January 2024, 20240131111425.

   [50] CIVICUS Monitor, 'Fiji: Repeal of Restrictive Media Law, Reverse of Travel Bans and Other Reform Commitments a Positive Signal for Civic Freedoms', 31 May 2023, 20230619111629.

5. By August 2023, DFAT reported that since the formation of the new government: there has been no significant political unrest or deterioration of government functions; and that: DFAT is not aware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since he change of government in December 2022; and DFAT assessed that: The political situation in Fiji remains stable; and that: Fijifirst now wields a similar level of political influence/power to that of an Australian parliamentary opposition.[51] In November 2023 the Fijian Parliament passed the i-Taukei Affairs (Amendment) Act of 2023 to confirm the reinstatement of the Great Council of Chiefs; and Fiji’s Attorney-General stated that it was: the coalition government’s priority to restore the recognition of the Great Council of Chiefs to: ensure that the voice and opinion of our traditional elders are considered when matters concerning i-Taukei people, traditions and culture arises.[52]

   [51] DFAT, 'Fiji 20230621135833 - Country Information - Political Update', 2 August 2023, 20230803112036.

   [52] 'Fiji Parliament approves reinstatement of Great Council of Chiefs', Pacific News Service, 24 November 2023, 20231130101156.

6. Some concern about the continued possibility of a future coup continues to be expressed. A December 2023[53] study has opined that the new government will have to be remarkably adroit in handling its promised review and possible amendment of the 2013 constitution, particularly where the status of the military is concerned, or this could provide the impetus for the next military intervention into Fiji’s politics (owing to RFMF’s role as guardian of the Fijian people and the 2013 Constitution). This noted, the study also acknowledged that the amendment process itself rendered the success of such a process near-impossible (in the context of a parliament where the current governing coalition has only a one-seat-majority), since support from three-quarters of the parliamentary is required to send a proposed amendment to a referendum (and the success of this would require three-quarters of registered voters would have to vote in support of any change).

   [53] Regan, A.J. et al, 'Between Two Worlds’: The Origins, Operation, and Future of the 2013 Fiji Constitution, The Journal of Pacific History, December 2023, 20240131111302.

7. The same study[54] observed that Bainimarama used his exceptional powers as both prime minister and RFMF commander to ensure personal loyalty to him by, amongst other things, promoting young officers to senior civilian and military posts, increasing RFMF officer’s pay, and granting total RFMF immunity from prosecution for any past coup-related activities. But at the same time, opposition parties have recognized that if they are to retain power after winning an election against FijiFirst, their leadership needs to be able to gain RFMF loyalty; and since 2016 all three of the now governing coalition parties have themselves elevated former significant RFMF officers to senior party leadership positions (most notably the People’s Alliance whose leader, and now prime minister, is the former army colonel and 1987 coup leader, and now prime minister Sitiveni Rabuka).

   [54] Regan, A.J. et al, 'Between Two Worlds’: The Origins, Operation, and Future of the 2013 Fiji Constitution, The Journal of Pacific History, December 2023, 20240131111302.

8. But beyond such speculative considerations, there is as yet little evidence of the possibility of a further military coup, let alone of a return to the kind of restrictive circumstances which affected Fiji in the immediate aftermath of Bainimarama December 2006 seizure of power; and in December 2023 RFMF Commander Major General Jone Kalouniwai expressed his support for the current government’s planned national security and defence review.[55] Indeed, to the extent that recent reports have addressed the issue of political instability in Fiji, the concern has been about whether the current governing coalition might fall apart, and/or that SODELPA might switch its support to FijiFirst.[56] Given this, the return of a Bainimarama led FijiFirst style government (whether by a shift in party loyalties in the current parliament, or by way of a future election), and to a situation like that which affected Fiji over that government’s most recent term of office, is not unforeseeable.

   [55] 'Former RFMF Chief of Staff Jim Sanday to lead the review of Fiji’s national security and defence', Fiji Village, 13 December 2023, 20231220120228.

   [56] Movono, L. & N. Sas, 'Fiji hit by sex scandal as Australia's eSafety Commissioner orders removal of "intimate images", ABC News, 30 January 2024, 20240131112008; Waqavakatoga, W. 'Fiji’s tenuous grip on political stability', East Asia Forum, 16 January 2024, 20240131111425; 'SODELPA Committed To Coalition Government', Fiji Sun, 26 January 2024, 20240131134711;         'Fiji's coalition parties at loggerheads after Cabinet minister removed for 'insubordination and disobedience’', Radio New Zealand (RNZ), 22 January 2024, 20240123121713.

9. The applicant claims to fear that if he returns to Fiji he will face racial/ethnic discrimination as an indigenous Fijian, and he will be spied on by the government, and he will be deprived of his basic human rights, the right to criticise his government on social media, and to be able to discuss his problems (for fear of being reprimanded by the police and military, or charged with sedition), and he will have no freedom of expression, and he will face government policies which are against indigenous people, and a government which suppresses and ignores the traditional values and culture of indigenous Fijians, and he will be deprived of his indigenous rights, and his rights as a youth, and his rights more broadly, including basic human rights, and freedom of expression, and of true democracy, and he fears that all of this will cause him psychological harm (including depression and possibly suicide), and he may the law into his own hands, and physically abuse and challenge the current government, and be imprisoned as a result.

10. I accept that like many indigenous Fijians the applicant may have an unfavourable view of Bainimarama’s FijiFirst party, and that felt he was being discriminated against in a broader sense (as part of the indigenous Fijian community), and that traditional Fijian values and culture were being suppressed by polices like the Land Bank program. I note, however, that the current Rabuka led coalition government is plainly seeking to reverse the policies of the former government, and is plainly sympathetic to the wishes of that part of Fiji’s indigenous Fijian community who saw the former government’s policies as discriminatory towards indigenous Fijians, and dismissive of their traditional culture and values. I note also that the current Rabuka led coalition government has made positive statements about ensuring freedom of speech. I am mindful that (although there is currently little evidence to indicate the possibility of a military coup, and with it a return to the kind of restrictive environment as was the case in the immediate aftermath of the 2006 Bainimarama), the possibility of a return to a return to Bainimarama FijiFirst government (by election or a parliamentary shift in party loyalties), and with it a return to the kind of situation that existed in Fiji in the years prior to the 2022 election, remains reasonably foreseeable. Even so, it has nonetheless long been the case that Fijians have been able to have private discussions about political matters, or other sensitive topics, without problem; and although there has plainly been some monitoring of online statements, it is not apparent that the private conversations of ordinary citizens were spied upon. Given this, I am not satisfied that the applicant would, for the reasonably foreseeable future, face a real chance of harm of any kind in Fiji if he were to express such views as he has privately, including the view that Bainimarama’s FijiFirst party discriminated against indigenous Fijians, and which suppressed and ignored traditional Fijian values and culture, by implementing policies like the Land Bank (or, for that matter, were he to criticise the current coalition government).

11. Nor am I satisfied that there is a real chance that the applicant would feel fearful and unable to express such views publicly, in such a way that this would cause him any kind of mental harm (such as depression, or that would result in suicidal ideation or his becoming violent), or that out of frustration he would take the law into his own hands, and physically abuse and challenge the current government. For I do not accept that he has any interest in doing this. But even if he did, I note that over the recent decade in Fiji (that is, even under the two elected terms of Bainimarama’s FijiFirst government), it was only high-profile or prominent figures like politicians and journalists who were at any real risk of adverse attention for making public criticisms of the government and its policies. More broadly, cases of persons facing problems for making public statements (including on social media) have been rare, notwithstanding the extent to which these have occurred (notably during the lead up to the 2018 election), including by young people who were critical of Bainimarama and FijiFirst. I am not satisfied that the applicant would face a real chance of harm of any kind if he did this given that, although he is a young indigenous Fijian, he is not a high-profile or prominent figure such as a politician or a journalist. And as noted already, I satisfied that there is a real chance that the applicant would feel fearful and unable to express such views publicly, such that this would cause him any kind of mental harm (such as depression, or that would result in suicidal ideation or his becoming violent), or that out of frustration he would take the law into his own hands, and physically abuse and challenge the current government.

12. The applicant claims to fear that if he returns to Fiji he will face racial/ethnic discrimination as an indigenous Fijian, and he will face government policies which are against indigenous people, and a government which suppresses and ignores the traditional values and culture of indigenous Fijians, and he will be deprived of his indigenous rights, his right to his land, and his rights as a youth, and his rights more broadly, including basic human rights, and freedom of expression, and of true democracy. Given that successive elections since 2014 have been found to be free and fair I am not satisfied that there is a real chance that the applicant would, for the foreseeable future, be denied access to democracy if he returned to Fiji. The new government has begun to roll back the land policies of the former government but, for the moment, it is not apparent that the 2010 Land Use Decree, and its Land Bank system. Even so, I do not accept that the applicant was deprived of his right to his land (whether as an owner, or by way of being among those ethnic Fijians who land had been registered into the Land Bank system and who felt discriminated against by the manner in which the lease of their land was negotiated by the government), or that the government ended a contract to which he was a party. I am not satisfied that there is a real chance that the applicant would, for the foreseeable future, be denied access to land as he claims; and on the evidence before me I am not satisfied that there is a real chance that the applicant would, for the foreseeable future, be caused any harm (including by way of depression or some other kind of mental harm) by way of matters such as the Land Bank.

13. The applicant has otherwise given no specific indication of how he has been denied his rights (or basic human rights) and/or how he has been discriminated against as an indigenous person, and as a youth, and I am not satisfied that he would more broadly face a real chance of suffering any harm by way of denied his rights (or basic human rights), or by way of experiencing some kind of broader discrimination as an indigenous youth. This includes the possibility of a denial of his capacity to earn a livelihood of any kind, or significant economic hardship that would threaten his capacity to subsist (whether for reason of his being an indigenous youth, or any other reason). For, and although youth unemployment in Fiji was at 14.8 per cent in 2019 (three times as high as the official unemployment rate of about 4.8 per cent in 2020), and which likely underreported the situation, and although at [Age] years of age the applicant remains plausibly within that category of persons who might be perceived as a youth, it is also the case that there is a very low level of official and social discrimination for indigenous Fijians (and the applicant was previously able to find work in Fiji at a [Workplace] as [an Occupation]), and it is reported that even in times of high unemployment many iTaukei are able to move back to traditional villages and participate in subsistence living communities[57] (and the applicant has indicated that if he returned to his village he would have the support of his relatives and extended family). Thus, and even if the applicant were to sometimes experience some difficulties in finding employment opportunities, I am not satisfied that this would result in his facing a real chance of serious harm, whether physical or mental (including depression suicidal ideation).

    [57] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.2-3.5, 3.7, 2.21, 2.23, 3.9-3.10.

14. Considering the totality of the applicant’s claims against the country information, and even allowing for the possibility of a future return of a Bainimarama government, I am not satisfied that the applicant would for the foreseeable future face a real chance of harm of any kind, other than the possibility that he may sometimes experience some difficulties in finding employment opportunities due to youth unemployment in Fiji, but which I am not satisfied would result in his facing a real chance of serious harm, whether physical or mental. I am therefore not satisfied that the applicant has a well-founded fear of persecution.

15. 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).

1. For the reasons already given above, I am not satisfied that the applicant would face a real risk of harm of any kind, other than the possibility that he may sometimes experience some difficulties in finding employment opportunities due to youth unemployment in Fiji. But given that it is reported that even in times of high unemployment many iTaukei are able to move back to traditional villages and participate in subsistence living communities,[58] and given that the applicant has indicated that if he returned to his village he would have the support of his relatives and extended family, I am not satisfied that there is a real risk that such difficulties as the applicant may experience (in finding employment opportunities due to youth unemployment in Fiji) would involve his experiencing pain or suffering (whether physical or mental) such as would amount to cruel or inhuman treatment or punishment; or: the kind of severe pain or suffering (whether physical or mental) that would amount to torture; or: the kind of extreme humiliation that would amount to degrading treatment or punishment. Moreover, I am not satisfied that there is a real risk that it would be intended that that the applicant experience any such significant harm, given that it is not apparent from the evidence that youth unemployment in Fiji is the consequence of any animosity toward young Fijians,[59] and given that such social discrimination as there is towards indigenous Fijians is of a low-level (and mostly concerns the perpetuation of stereotypes;[60] rather than intention to cause pain or suffering or extreme humiliation). Neither am I satisfied that there is a real risk that any harm the applicant might experience in this regard would involve arbitrary deprivation of life or the death penalty. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk the applicant will suffer significant harm.

   [58] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.2-3.5, 3.7, 2.21, 2.23, 3.9-3.10.

   [59] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.21.

   [60] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 3.5, 3.10.

2. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

3. 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

4. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Matthew Tubridy
   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.

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   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.

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