1903632 (Refugee)

1903632 (Refugee) [2023] AATA 3187 (23 June 2023)
DECISION RECORD

DIVISION: Migration & Refugee Division
CASE NUMBER: 1903632

COUNTRY OF REFERENCE: Fiji
MEMBER:L. Symons
DATE:23 June 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 23 June 2023 at 5:32pm
CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Court remittal – first named applicant passed away – former public servants – protest against former Prime Minister Frank Bainimarama – photographs of the protest on social media – association with the Pacific Indigenous Samaritan Assoc Inc (PISAI) – member of the Peoples Alliance Party – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 February 2015 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant, who claims to be a citizen of Fiji, first arrived in Australia [in] December 2010 as the holder of a subclass 676 Visitor visa. He departed Australia [in] January 2011. He arrived in Australia for a second time [in] October 2011 as the holder of a subclass 676 Visitor visa. He departed Australia [in] January 2012. He arrived in Australia for a third time [in] May 2014 as the holder of a subclass 600 Visitor visa. On 4 September 2014, he was granted a Bridging A visa in association with his application for Protection visas. He was granted a further Bridging A visa on 3 April 2017. This visa expired on 5 January 2018 and he thereafter remained in Australia as an unlawful non-citizen. On 26 April 2018, he was granted a Bridging E visa.
The second named applicant, who claims to be a citizen of Fiji, is the wife of the first named applicant. She first arrived in Australia [in] December 2010 as the holder of a subclass 676 Visitor visa. She departed Australia [in] January 2011. She arrived in Australia for a second time [in] July 2014 as the holder of a subclass 600 Visitor visa. On 4 September 2014, she was granted a Bridging A visa in association with her application for Protection visas. She was granted a further Bridging A visa on 3 April 2017. This visa expired on 5 January 2018 and she thereafter remained in Australia as an unlawful non-citizen. On 26 April 2018, she was granted a Bridging E visa.
The third named applicant, who claims to be a citizen of Fiji, is the son of the first and second named applicants. The fourth named applicant, who claims to be a citizen of Fiji, is the daughter of the first and second named applicants. They arrived in Australia [in] August 2014 as the holders of subclass 600 Visitor visas. On 4 September 2014, they were granted Bridging A visas in association with their application for Protection visas. They were granted further Bridging A visas on 3 April 2017. These visas expired on 5 January 2018 and they thereafter remained in Australia as unlawful non-citizens. On 30 April 2018, they were granted Bridging E visas.
The applicants applied to the Department of Home Affairs (the Department) for Protection visas on 29 August 2014. The delegate refused to grant the visas on the basis that they were not persons in respect of whom Australia had protection obligations. On 19 March 2015, they applied to the Tribunal for a review of that decision.
The applicants attended a hearing before the Tribunal on 30 September 2016 to give evidence and present arguments. On 10 March 2017, the Tribunal (differently constituted) affirmed the delegate’s decision. [In] March 2017, they lodged an application for judicial review with the Federal Circuit Court. [In] December 2017, the Federal Circuit Court dismissed the application for judicial review. [In] May 2018, they appealed to the Federal Court. [In] January 2019, the Federal Court set aside the decision made at the Federal Circuit Court and allowed the appeal. The matter is now before the Tribunal pursuant to an order of the Court.
On 19 November 2021, the Tribunal wrote to the applicants and invited them to appear before the Tribunal on 8 December 2021 via video. On 7 December 2021, the Tribunal received a request for a postponement of the hearing on the basis that the first named applicant was unwell and unable to attend the hearing. He also requested an in-person hearing. The hearing was adjourned to 19 January 2022 for an in-person hearing. On 5 January 2022, an officer of the Tribunal contacted the first named applicant and explained to him that, due to restrictions imposed during the Covid-19 pandemic, the Tribunal was unable to proceed with an in-person hearing on 19 January 2022. He was given the option to attend that hearing, via video, if he wished to proceed on that date. He advised that he did not wish to attend a video hearing. The hearing listed on 19 January 2022 was cancelled.
On 20 January 2022, the Tribunal wrote to the applicants and informed them that, due to restrictions imposed during the Covid-19 pandemic, the Tribunal was unable to proceed with in-person hearings at the Sydney registry. The applicants were invited to attend a postponed hearing on 2 March 2022 via telephone. The first named applicant appeared before the Tribunal, via telephone, on 2 March 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Fiji and English languages. The hearing was adjourned to 25 March 2022 for an in-person hearing.
The applicants appeared before the Tribunal on 25 March 2022 for an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Fiji and English languages. On 20 October 2022, the Tribunal received a Withdrawal of Application form in relation to the first named applicant. It was signed by the applicants’ lawyer. The Tribunal was provided with a Death Certificate for the first named applicant which indicated that he had passed away [in] July 2022. Accordingly, the Tribunal no longer has jurisdiction in relation to the first named applicant.
On 23 February 2023, the Tribunal wrote to the applicants and invited them to appear before the Tribunal on 23 March 2023 for an in-person hearing. The second, third and fourth named applicants appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fiji and English languages. The applicants are represented in relation to the review by their lawyer, Mr John Vevers, who attended the hearing via telephone. At the end of the hearing, a request was made for further time to provide additional evidence. The request was granted and the applicants were given 2 weeks in which to provide further evidence.
On 5 April 2023, the Tribunal received an email from the applicants’ lawyer requesting an extension of time in which to provide further evidence as the second named applicant was unwell. The Tribunal granted the request and extended the time to lodge further evidence until 12 April 2023. On 13 April 2023, the Tribunal received an email from the applicants’ lawyer indicating that the applicants were unable to provide further evidence.
The issues that arise on review are whether the applicants are owed Australia's protection under the Refugees Convention or under the complementary protection criterion.
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 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Complementary protection criterion
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 a protection 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 the applicant 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’).
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent child of the family head.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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 AND FINDINGS
Claims and evidence given to the Department
The first named applicant made the following claims in his application for Protection visas lodged on 29 August 2014.
·As a [Occupation 1] in Fiji he inspected motor vehicles and issued Certificates of Fitness if they passed the required standards. He issued a Certificate of Fitness in relation to a [Vehicle 1] after being satisfied in relation to its road worthiness.
·Two months later he was visited by [Officer A] of the Fiji Military force who informed him that he was investigating his issuing of a Certificate of Fitness in relation to the [Vehicle 1] which was not running well and was experiencing mechanical problems. Without taking a statement from him, he tried to force him to pay for the cost of repairs undertaken on the [Vehicle 1]. When he refused to pay for the repairs, he was forcibly taken to the naval base where he was subject to degrading treatment. He had to crawl on the ground and was forced to run in a mud pool where he injured his knee.
·When he was escorted home, [Officer A] told him that if he did not pay for the repairs he would be brought back to the naval base and would never return home. He took these threats seriously because there were several unexplained cases of civilians killed in Police or Military custody. It is common knowledge in Fiji that, if Police officers are connected to the Military, nothing will happen to them. He made some inquiries and discovered that [Officer A] was the younger brother of the man who owned the [Vehicle 1].
·He refused to pay for the repairs. He was afraid for his life and the lives of his family members. They decided as a family to start saving to come to Australia and apply for protection. His wife planned that he should come to Australia first, she would then follow and their two young children would follow them before they applied for protection in Australia.
·He fears that if he returns to Fiji he will be taken back to the naval base. He and his wife attended a protest against Prime Minister Bainimarama when he was in Sydney. The Prime Minister was accompanied by his brother, Joe Bainimarama, who [knew him] when he worked at the [specified Government] Department. Joe Bainimarama saw him at the protest and shook his head. He would have told the Prime Minister about it. His wife worked [for the government as well] and they know they will be marked people if they return to Fiji. Prime Minister Bainimarama is someone who holds grudges and takes revenge on people who challenge him.
·[Media 1] footage [shows] him and his wife among the protesters. There is a unit in the Military that views blogs and news media, notes the names of those who are protesting against the Military Junta and passes the names on to those who commit crimes against humanity which is what he fears will happen to him if he returns to Fiji.
·He wanted to attend the protest because he was unable to speak out against the Military Junta in Fiji. Since his arrival in Sydney, he has spoken about his experiences and expressed his views to members of the Fijian community. He was warned that the Military Junta had many supporters in Sydney and that they report on anyone who speaks against the Military Junta. His wife and children told him that the Military would go to their home, ask about him, when he was going to return from Australia and what kinds of things he bought when he came home. His children were traumatised by this and he hopes to get them medical assistance for their mental health problems.
·The authorities in Fiji cannot protect him because his actions in Australia will be viewed as a threat and direct challenge to their legitimacy. The Police and Judiciary are subservient to the Military Junta.
The second named applicant’s claims in her application for Protection visas are summarised as follows:
·She left Fiji after her husband was taken to the naval base, subjected to inhumane treatment by [Officer A] and warned that if he refused to pay for repairs to a [Vehicle 1] he would be killed.
·She and her husband planned that they would save up, he would come to Australia first, followed by her and then by their two children before they applied for protection in Fiji (sic).
·They took the threat seriously and her fears were reinforced when soldiers started coming to their home and making inquiries about her husband when he was in Australia. They wanted to know what he was doing in Australia and how long he would be in Australia. Her two children began to show signs of stress and trauma because they were afraid especially after hearing stories of civilians being taken to the military barracks and being killed.
·She did not personally experience harm in Fiji.
·She protested in Sydney in August 2014 against Prime Minister Bainimarama because she wanted to exercise her human rights that were denied in Fiji. She was seen in the [Media 1] footage and in photographs circulated on the internet. She heard of the military junta having supporters in Sydney who reported to them getting unsuspecting Fijian civilians into trouble. It dawned on her when she tried to log into her work email and it had been cancelled. She would not be surprised if it is related to her participating in a protest against the Prime Minister. If her work email is cancelled, she expects to hear that her employment has also been cancelled. This will mean that she will be subjected to inhumane treatment with no hope of assistance from the Police.
·If she returns to Fiji she will be harmed by the military because they are involved in many unlawful killings in Fiji. The Police are subject to the military and are an extension of the military.
·She is not a high-profile public servant but her participating in a peaceful protest against her boss is seen as an act of betrayal. She hates to think what they will do to her on her return to Fiji. The fact that her work email is cancelled is proof that the military junta is reverting to its old habits of raping and killing Fijian civilians.
·The authorities cannot protect her because her actions in Australia will be seen as a direct threat and challenge questioning their legitimacy. The Police and Judiciary are subservient to the military junta.
The third named applicant and the fourth named applicant did not make any claims in their own right in the application for Protection visas and claimed to be members of the same family unit as the first named applicant and the second named applicant.
The applicants have provided to the Department copies of the first named applicant’s Fijian passport issued [in] 2010 and valid [until] 2020, the second named applicant’s Fijian passport issued [in] 2010 and valid [until] 2020, the third named applicant’s Fijian passport issued [in] 2011 and valid [until] 2021, the fourth named applicant’s Fijian passport issued [in] 2011 and valid [until] 2021, the first named applicant and second named applicant’s Fijian Marriage Certificate, a letter from [Government Agency 1] to the first named applicant dated [in] April 2014, a Memorandum from [Government Agency 1] to the first named applicant dated [in] August 2014 and titled ‘Abandonment of Employment’, a letter from [Government Agency 2] to the second named applicant dated [in] April 2014 and titled ‘Renewal of Contractual Appointment’ [from] 2014 [to] 2017, a letter from [Government Agency 2] to the second named applicant dated [in] August 2014 and titled ‘Extension of Overseas Leave’, a Fiji Public Service Official Circular 22/2014 dated 30 November 2014, the first page of the Government of Fiji Gazettes dated 19 September 2014, 26 September 2014, 3 October 2014, 9 October 2014, 17 October 2014, 7 November 2014, 21 November 2014 and 28 November 2014, a Transcript of Results from [Education Provider 1] dated 23 September 2014 in relation to the third named applicant, a Certificate III in [Subject 1] awarded to the third named applicant by [Education Provider 1] and dated 28^th May – 7^th August 2014, a Transcript of Results from [Education Provider 1] dated 23 September 2014 in relation to the fourth named applicant, a Certificate III in [Subject 1] awarded to the fourth named applicant by [Education Provider 1] and dated 28^th May – 7^th August 2014, a letter from [a] Fund dated 2 February 2015, a photograph of people protesting (from [a news] website), a Statutory Declaration from [Mr B] dated 2 February 2015 and a letter of support from [Mr C] dated 5 February 2015.

The first named applicant and the second named applicant attended an interview with the Department on 30 January 2015. During his interview, the first named applicant provided the following additional information:
·He is a Christian and never experienced any difficulties in Fiji because of his religion. He does not fear any harm for reason of his religion if he returns to Fiji.
·In May 2013, he inspected a [Vehicle 1], a private vehicle, and issued a Certificate of Worthiness. Two months later (July 2013), [Officer A] went to his workplace and asked why a Certificate of Worthiness was issued when the gearbox was defective. [Officer A] asked him to pay for the repairs to the vehicle which came to $1,000.00. He did not pay him the money.
·On the same day, he was taken to a naval base where he was made to run in a mud pool. He was released on the same day in the afternoon. He saw [Officer A] twice after his release from the naval base but could not remember the dates. He subsequently found out that the [Vehicle 1] belonged to [Officer A]’s brother.
·He was a supporter of the SDL Party in Fiji. He did not experience any harm, including from the Fijian government, because of his support of the SDL Party.
·He is not a member of any Fijian related political organisations in Australia. He, his wife and their daughter participated in a protest in Sydney in August 2014 (it may have been on [date] August 2014). There were more than 50 people at the protest. He does not know who organised the protest. He wanted to show people what is happening in Fiji i.e. torture and detention, express his dissatisfaction with the Fijian military and that enough is enough. This is the only protest he has participated in.
·Images of him, his wife and daughter at the protest were widely broadcast in Fiji. Joe Bainimarama accompanied Prime Minister Frank Bainimarama to Sydney, saw him at the protest and recognised him.
During her interview with the Department on 30 January 2015, the second named applicant provided additional information and made the following new claims:
·She is a Christian and did not experience any harm in Fiji because of her religion. She does not fear any harm for reason of her religion if she returns to Fiji.
·At the time she left Fiji her employment contract had been renewed for 3 years. She was on leave when she came to Australia and requested an extension of her leave after she arrived here. She assumed that her employment had been terminated as she saw her position advertised in the Government Gazette.
·She spoke to her former Superintendent at work and was told that a photograph of her attending the protest was seen on [social media] and if she returns to Fiji her employment would be terminated. Other work colleagues told her the same thing and that her boss had a meeting and told them that what she did in Australia was wrong.
·She participated in the protest to exercise her rights. This was the only protest she participated in. She assumed that she had been locked out of her work email because she participated in the protest.
·She had been afraid that she would be taken by the Military to the camp and brutalised.
·She was not a member or supporter of any political or social organisation in Fiji. Her husband was also not a member of any such organisation. They were not members of the Fiji Democracy and Freedom Movement (FDFM) but agreed to join members at the protest in [Suburb 1].
The Department refused the applicants’ application for Protection visas on 27 February 2015 as the delegate was not satisfied that they are persons in relation to whom Australia has any protection obligations.
The applicants filed with the Tribunal copies of the Department’s Decision Records dated 27 February 2015, the bio data page of the first named applicant’s Fijian passports issued [in] 2010 and expired [in] 2020 and issued [in] 2021 and valid [until] 2031, the bio data page of the second named applicant’s Fijian passports issued [in] 2010 and expired [in] 2020 and issued [in] 2021 and valid [until] 2031, the bio data page of the third named applicant’s Fijian passport issued [in] 2011 and expired [in] 2021, the NSW Photo Card for the third named applicant, the bio data page of the fourth named applicant’s Fijian passport issued [in] 2011 and expired [in] 2021, a letter of support dated [August] 2016 from Ms Oni Kirwin, an ID card in the first named applicant’s name issued by the Fiji Native Government in Exile, a post on [Media 1] dated [in] August 2014 and titled [Title 1], four photographs of protesters, screenshots of posts on [social media], a photograph of the title (We will track you down: PM) of an article in The Sun, a Statutory Declaration from [Mr D] dated 3 September 2016, posts on the [named] Forum dated [date] July 2013, [date] July 2013, [date] July 2013 and [date] February 2015, a letter of support from the Pastor of [Church 1], a letter of appreciation dated [in] July 2015 to the first named applicant from the Cancer Council NSW, a letter of appreciation dated [in] July 2018 to the first named applicant in relation to Daffodil Day, a flash drive, country information on Fiji dated 2014, 2015 and 2016, a screenshot of a post on [social media] critical of the Magistrate who granted former Prime Minister Frank Bainimarama bail, a photograph of the front page of The Fiji Times dated 13 March 2023, an article dated 10 March 2023 and titled The ‘Qiliho’ mode published in The Fiji Times and a statement by the second named applicant dated 20 March 2023.
The second named applicant filed with the Tribunal a statement dated 20 March 2023 in which she made the following new claims:
·She opposed the military government of Fiji since the coup and its inception in 2006. She has spoken out against the former Prime Minister, Frank Bainimarama.
·She took part in a series of August 2014 protests in Sydney, Australia when the then-Fijian Prime Minister visited. These protests were covered by [Media 1] at the time.
·Although Mr Frank Bainimarama is no longer Prime Minister, she fears that should she return to Fiji now, given her previous comments and protests, she will be harmed by those members of the Fijian community that remain loyal to the former Prime Minister.
·Despite comments made by the current Prime Minister and his government, stating that Fiji is now free, she does not believe that an election in December 2022 – which was very close – has removed human rights issues from Fiji.
·She is fearful that the nearly twenty (20) years of the military government regime in Fiji cannot be easily forgotten or removed, simply because Mr Frank Bainimarama is no longer the Prime Minister.
·Given the size of Fiji, she fears that if she returns now, she will be recognised for her participation in the protests in Sydney in 2014, as well as any comments she has made in the past, and her following of certain individuals on social media.
·Regardless of where she relocates within Fiji, she fears that her identity and actions will be known and that she will be harmed as a result. Given the influence of the military government over nearly two (2) decades, the Police and security forces will not provide her with protection, nor will she be able to attend a Police Station and ask for assistance. Despite the changeover in government in late 2022, she can no longer return to Fiji.
FIRST NAMED APPLICANT
On 20 October 2022, the Tribunal received a Withdrawal of Application form in relation to the first named applicant. It was dated 20 October 2022 and signed by the applicants’ lawyer. The Tribunal was provided with a Death Certificate for the first named applicant which indicated that he died [in] July 2022.
The Tribunal is satisfied from the circumstances set out above that the first named applicant is deceased. Accordingly, the Tribunal finds that it no longer has a valid application before it in relation to the first named applicant. Therefore, the Tribunal has no jurisdiction to review the delegate’s decision in relation to the first named applicant.
DECISION
The Tribunal does not have jurisdiction in relation to the first named applicant.
SECOND NAMED APPLICANT
Country of reference/Receiving country
The second named applicant claims to be a citizen of Fiji and have provided copies of the biodata pages of her Fijian passports to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Fiji. The Tribunal finds that Fiji is the country of reference for the purpose of assessing the second named applicant’s claims for protection under the Refugees Convention. The Tribunal finds that Fiji is the receiving country for the purpose of assessing her claims for protection under the complimentary protection criterion.
Third country protection
There is no evidence before the Tribunal to suggest that the second named applicant has the right to enter and reside in any safe third country for the purpose of s.36(3) of the Act.
Assessment of claims
The applicants were represented by a migration agent, Mr Tui Savu, at the time their application for Protection visas was lodged. They were represented by a lawyer, Mr Rajendra Chaudhry, in their application before the Federal Circuit Court. They were represented by a barrister, Mr Nicholas Poynder, in their application before the Federal Court. On remittal of their application to the Tribunal, they are represented by a lawyer, Mr John Vevers, since 18 October 2022.
The applicants’ solicitor, Mr Vevers, has filed with the Tribunal written submissions dated 20 March 2023. In these submissions, he stated that the second named applicant has consulted with his office, read these submissions and instructs that such submissions be submitted to the Administrative Appeals Tribunal in support of the ongoing application for Protection visas and the merits review hearing schedule for 23 March 2023. In his submission, he summarised her grounds for seeking protection as set out in paragraph 27 above.
In her statement dated 20 March 2023, the second named applicant set out her current claims for protection as referred to in paragraph 27 above.
At the commencement of the hearing, the Tribunal sought to clarify with Mr Vevers and the second named applicant her current claims for protection. Mr Vevers confirmed that his instructions are that the only claims that the second named applicant is now making are in relation to her political activities. He confirmed that she is not relying on any of the claims made by the first named applicant. The Tribunal noted that no claims for protection were made on behalf of the third named applicant and the fourth named applicant in the application for Protection visas. The Tribunal noted that there was no mention in the submissions of claims for protection by or on behalf of them nor had the Tribunal been provided with statements by them. Mr Vevers confirmed that his instructions are that the third named applicant and the fourth named applicant are not making any claims for protection in their own right.
The Tribunal referred to the statement of the second named applicant dated 20 March 2023 at paragraph 5 where she states “I have three children residing in Australia with me. Although each is now an adult, they too fear returning to Fiji.” The Tribunal asked Mr Vevers to clarify the status of this statement and whether this was a claim for protection being made by the second named applicant on behalf of the third named applicant and the fourth named applicant. He responded that he sought instructions from the second named applicant, did not receive instructions about the third named applicant and the fourth named applicant and his submissions are perceived as well.
The Tribunal sought clarification from the second named applicant as well. She stated that she had heard the discussion between the Tribunal and her lawyer and agreed with what he had told the Tribunal in relation to the claims for protection.
In assessing the claims made by the second named applicant, the Tribunal has had regard to the evidence given by the first named applicant, in so far as it is relevant to her claims, as he was a witness in her case.
The Tribunal discussed with the second named applicant her background, family, education, employment, why she left Fiji, her political activities in Australia, her membership of organisations in Australia and why she fears returning to Fiji. Her claims for protection have evolved over time and the Tribunal has formed the view that she has embellished some of her claims for protection.
In her application for Protection visas, the second named applicant claimed that in August 2014 she attended a protest in Sydney against (former) Prime Minister Bainimarama because she wanted to exercise her human rights that were denied in Fiji. She was seen in the [Media 1] footage and in photographs circulated on the internet. She heard of the military junta having supporters in Sydney who reported to them getting unsuspecting Fijian civilians into trouble. It dawned on her when she tried to log into her work email and it had been cancelled. She would not be surprised if it is related to her participating in a protest against the Prime Minister. If her work email is cancelled, she expects to hear that her employment has also been cancelled. This will mean that she will be subjected to inhumane treatment with no hope of assistance from the Police.
In her application for Protection visas, the second named applicant claimed that she is not a high-profile public servant but her participating in a peaceful protest against her boss is seen as an act of betrayal. She hates to think what they will do to her on her return to Fiji. The fact that her work email is cancelled is proof that the military junta is reverting to its old habits of raping and killing Fijian civilians. The authorities cannot protect her because her actions in Australia will be seen as a direct threat and challenge questioning their legitimacy. The Police and Judiciary are subservient to the military junta. If she returns to Fiji she will be harmed by the military because they are involved in many unlawful killings in Fiji. The Police are subject to the military and are an extension of the military.
The second named applicant filed with the Tribunal a copy of the Department’s Decision Record dated 27 February 2015. It indicates that she attended an interview with the Department on 30 January 2015. During that interview, she stated that she was not a member or supporter of any political or social organisation in Fiji. Her husband, the first named applicant, was also not a member or supporter of any political or social organisation in Fiji. She was not a member of any Fiji related political organisation in Australia, including FDFM, but had attended a protest in Sydney.
During her interview with the Department, the second named applicant stated that she attended a protest at [Suburb 1] [in] August 2014 at about 12 noon. She was accompanied by the first named applicant and the fourth named applicant. They stood opposite [the] Town Hall. There have more than one hundred people there. They left at about 3.00pm after (former) Prime Minister, Mr Frank Bainimarama, had left. When asked why she attended the protest, she responded to exercise her human right of freedom of speech and expression. She could not do that in Fiji. When it was put to her that her sole purpose in participating in the protest was to strengthen her refugee claims, she responded that when she came to Australia she did not know about the protest or that Mr Frank Bainimarama was coming to Australia.
The delegate was satisfied that the second named applicant’s evidence indicated an awareness of the political situation in Fiji and demonstrated that she had more than one reason for participating in the protest. The delegate found that she did not participate in the protest for the sole purpose of strengthening her claims to be a refugee and as such did not disregard the conduct for the purpose of assessing her claims under the Refugees Convention criteria.
During her interview with the Department, the second named applicant claimed that images of them at the protest [in] August 2014 were widely broadcast in Fiji. She provided a photograph of protesters standing behind a FDFM banner holding placards. This photograph was published in [a news website]. Her migration agent also provided the Department with a link to the [Media 1] website which had the same photograph and reported on the protest [in] August 2014. The delegate asked her what proof she had to support her claim that images of her and her husband were broadcasted in Fiji. She responded that the [Media 1] news is broadcasted in Fiji. Her colleagues, [Ms E] and [Ms F], told her that they saw her on [Media 1] news. There told her that what she had done was wrong. They did not contact her again after these telephone calls and when she tried to contact them, she received no response.
Later in the interview, the second named applicant told the delegate that [Ms G], from the Human Resources Department at work, contacted her by telephone and requested that she resign. She was told that her employment would be terminated on her return if she did not resign. [Ms G] told her that she saw her attending the protest on [social media]. No evidence was provided to the Department that there were images of her and her husband participating in the protest on [social media].
During her interview with the Department, the second named applicant claimed that, at the time she left Fiji, her employment contract had been renewed for 3 years. She was on leave when she came to Australia and requested an extension of her leave after she arrived here. She assumed that she had been locked out of her work email because she participated in the protest. She assumed that her employment had been terminated as she saw her position advertised in the Government Gazette.
The Department’s Decision Record indicates that, following the hearing, the applicants provided the Department with a letter dated 5 February 2015 from [Mr C] and a Statutory Declaration dated 2 February 2015 from [Mr B]. In his letter, [Mr C] stated that he was the National President of the FDFM and lead the protest against former Prime Minister Mr Frank Bainimarama when he came to Sydney to speak to his followers [in] August 2014.
[Mr C] stated that Mr Frank Bainimarama’s older brother, Mr Jonacani Bainimarama aka Mr Jo Bainimarama, was also present with him to provide security and support during his Sydney visit. The protest was widely covered in the Australian and international media which is monitored by the military junta in Fiji to identify those protesting against Mr Bainimarama, keep tabs on them and hold them accountable should they return to Fiji. Many Fijians take part in these protests because it is one of the few opportunities they have to vent their frustration and exercise their freedom of expression against Mr Frank Bainimarama and his military junta since they are restricted in Fiji.
In his Statutory Declaration, [Mr B] stated that he has known the first named applicant since 1995 and they worked together [at] the [Government] Department. They worked under the supervision of Mr Jo Bainimarama at [Location 1] and [Location 2] during the years 1995 to 1998 and 1998 to 2005 respectively. Mr Jo Bainimarama is the older brother of Mr Frank Bainimarama and is close to him. Following the military takeover of the Fiji government, Mr Jo Bainimarama’s position was elevated and he became security personnel for his brother.
The second named applicant also provided the Department with letters dated 9 April 2014 and 21 August 2014 from [Government Agency 2] to the second named applicant, several copies of the Government of Fiji Gazette and the Fiji Public Service Official Circular dated [in] November 2014 issued by the Public Service Commission. The letter dated [in] April 2014 is titled “renewal of contractual appointment’ and indicates that the second named applicant’s employment had been renewed for another term of 3 years. The renewal was effective [from] July 2014 [to] July 2017 and any further extension or renewal of the Contractual Appointment would depend on her satisfactory Annual Performance Assessment report.

The letter dated [in] August 2014 is titled ‘extension for overseas leave’. It indicates that approval was granted for the second named applicant to extend her leave as requested, on a leave without pay basis, effective [from] August 2014 [to] September 2014. She was to resume duties [in] September 2014. If she failed to resume duties [in] September 2014 and neglected to comply with the provisions of Regulation 20(3) of the Public ServiceRegulations 1999, she would be taken to have resigned from the Public Service and would forfeit all rights and entitlements in relation to her public service employment.
The above evidence leads the Tribunal to the conclusion that [in] April 2014 the second named applicant’s appointment was renewed for a period of 3 years effective [from] July 2014 [to] July 2017. She then applied for and was granted leave from her employment in the Fiji Public Service to travel to Australia [in] July 2014. She subsequently applied for an extension of her leave and was granted an extension [until] September 2014. She was required to resume duties [in] September 2014 and was advised of the provisions of the legislation that if she failed to resume duties [in] September 2014, she would be taken to have resigned from the Public Service. She has not claimed, nor has she provided any evidence, that she was granted a further extension of her leave [beyond] September 2014. She did not return to Fiji and resume her duties [in] September 2014. She would therefore have been taken to have resigned from the Public Service.
The second named applicant provided the Department with several copies of the Government of Fiji Gazette and the Fiji Public Service Official Circular dated [in] November 2014 issued by the Public Service Commission to support her claims. The Gazettes contain details of appointments, acting appointments, promotions, renewals of contract appointments, resignations and retirements. It is not clear how these Gazettes support her claims.
The Fiji Public Service Official Circular dated [in] November 2014, issued by the Public Service Commission, advertises vacancies in the Public Service. The second named applicant claimed that one of the advertised vacancies was her position in the Public Service in Fiji. The Tribunal does not accept that this is evidence that her employment in the public service was terminated because she attended the protest [in] August 2014. When she did not resume her duties [in] September 2014 as required, she was taken to have resigned from the Public Service as per the legislation. The Public Service Commission was thereafter well within its rights to advertise her vacant position and seek to fill it. This was not done [until] November 2014, which was two and a half months after she was taken to have resigned from the Public Service.
During the first hearing on 30 September 2016, the Tribunal (differently constituted) asked the second named applicant about what other political activities she was involved in besides attending the protest at [Suburb 1] [in] August 2014. She responded that she joined an organisation called Pacific Indigenous Samaritan Assoc Inc (PISAI) which was led by Ms Mereoni (Oni) Kirwin. She supported this organisation because it helped the community and the indigenous peoples of Australia. Ms Kirwin was also fighting for the rights of indigenous Fijians who were losing their rights to their fishing grounds and land through changes in the law.
The Tribunal asked the second named applicant how she first came to know Ms Kirwin. She responded that they heard that there was going to be a protest against the (former) Prime Minister of Fiji, Mr Frank Bainimarama, [in] October 2015 at [Suburb 2]. He was going to be the chief guest at the Fiji Day celebrations. That is where she and the first named applicant met Ms Kirwin. When asked whether there was any media coverage of this protest, she responded that there are photographs on Ms Kirwin’s [social media] page including photographs of her and the first named applicant. The first named applicant and some members of PISAI also posted photographs to their [social media] pages. When asked whether any of them were prominent members of PISAI or people with public profiles, she responded that she was not sure. People from the government who were in attendance might have taken their own photographs.
The Tribunal asked the second named applicant whether she was involved in any other protests or marches in Australia other than the protest at [Suburb 1] [in] August 2014 and the protest at [Suburb 2] [in] October 2015. She responded that they joined aboriginal protesters on Invasion Day (Australia Day) in Canberra to support them as rights have been taken away from the indigenous community in Fiji. Photographs from this protest were posted on Ms Kirwin’s [social media] page. She also joined Ms Kirwin’s group to protest outside the Department’s office in Sydney in relation to the treatment of Fijian asylum seekers. Photographs of that protest were also posted on Ms Kirwin’s [social media] page. She thinks the [Media 1] covered that protest and, as far as she knows, her image or name were not reported on by the [Media 1].
The Tribunal asked the second named applicant whether she attended meetings at Parliament House with Reverend Fred Nile and she responded no. When asked in what ways she has been involved in Ms Kirwin’s organisations, she responded that she attended meetings and assisted the “office ladies” with the accounts. This involved compiling financial reports including recording spending. The Tribunal noted that a letter of support had been provided by Ms Kirwin and she mentioned that she was a group leader at prayer sessions. When asked about that, she responded that they pray for Fiji and ask for God’s intervention because people were being tortured.
The Tribunal asked the second named applicant to describe her profile within Ms Kirwin’s organisations. She responded that she was an ordinary member. When asked how she thought anyone in Fiji would know about her membership of Ms Kirwin’s organisations, she responded because of the footage of the protest in [Suburb 2], when they attended Invasion Day (Australia Day) in Canberra and when they protested outside the office of the Department in Sydney. When asked whether that was because they would look at Ms Kirwin’s [social media] page and that is how they would know of her association with Ms Kirwin, she responded yes. When asked whether there was any other way that they would know about her association with Ms Kirwin or her political activities in Australia, she responded that she thinks it is through the footage. Fiji is a “small island and when anything happens abroad the information is quickly disseminated within the country”.
The Tribunal asked the second named applicant whether she had ever been a member of the FDFM and she responded no. When asked whether she had ever been a member of any other political organisation in Australia, she responded no. When asked whether she had ever been a member of SODELPA or any other political party, she responded that in Fiji if you work in the Public Service you cannot be a registered member of a political party. People in the Public Service have to maintain a neutral status.
The Tribunal noted that, during her interview with the Department, the second named applicant mentioned that her office was close to the office of the Prime Minister and she was aware of some unorthodox dealings in that office. When asked whether she had any particular concerns or thought there was an increased risk to her because of her proximity to the Prime Minister’s office, she responded that there was always a risk because they were dealing with people from rural areas who had easy access to the Prime Minister. Prior to the election, the Prime Minister was concentrating on rural dwellers and they had to implement whatever they wanted. If they were unable to do it, the rural dwellers would go straight to the Prime Minister. They were at risk if they did not do it and could be punished for that.
The Tribunal asked the second named applicant whether, because she had participated in protests in Australia, the Bainimarama government would be concerned to stop her from protesting because of her previous position as a public servant. She responded yes because of what she knows about the government. When asked what sort of information they might be worried she could reveal, she responded it is in relation to financial assistance to rural development. For example, aid provided by countries like Australia for a particular purpose like health was diverted to other programmes.
The Tribunal discussed with the second named applicant her claims in relation to her former colleagues finding out about her attendance at the protest in [Suburb 1]. She stated that when she came to Australia she had a chance to express herself and show what the Fijian government was doing was wrong. Because she was a public servant, she was not allowed to do this in Fiji. She received an email from [Mr H], a former work colleague, after the protest in 2014. It contained a link to the [Media 1] website reporting on the protest at [Suburb 1] in August 2014. Her former work colleagues, [Ms E] and [Ms F], also saw her in a photograph on [social media]. Video footage from [Media 1] was on Fiji TV news as well on that day.
The second named applicant stated that the Human Resources Officer, [Ms G], contacted her and told her that headquarters was concerned about what they had seen on [social media] and what she did. She asked her if she could write a resignation letter to clear her name but she knew it was too late.
The Tribunal requested that she provide some evidence such as screenshots of either Ms Kirwin’s [social media] page or her own [social media] page that show the images of her at the protests in [Suburb 2] or Canberra or outside the office of the Department and the online presence of her images.
During the hearing on 25 March 2022, the second named applicant gave evidence that she was a supporter of the SODELPA party in Australia but not in Fiji. She first met Ms Kirwin in October 2015 when she joined a protest at [Suburb 2] at Fiji Day celebrations. She was a supporter of FDFM not a member. She supported PISAI by assisting with the finances. She recorded expenses on behalf of the group. She did this from 2015 until the organisation ceased to exist in 2016 or 2017. She was a supporter of the Fiji Native Government in Exile (FNGE). It was the same group as PISAI. FNGE joined the Christian group in Fiji. She supported the Christian group through financial contributions. When asked about her involvement with FNGE, she responded she began supporting FNGE in 2015 and ended supporting FNGE in 2015 when the Christian group were imprisoned.
The second named applicant stated that she last had contact with Ms Kirwin when the Christian group were imprisoned. When asked whether she was aware of what the SODELPA party had to say about Ms Kirwin and her organisations, she responded no. When asked whether she was aware of what the chiefs in Ra and Ba and Navrosa had to say about Ms Kirwin and her organisations, she responded no.
The Tribunal asked the second named applicant whether she belongs to any political organisation now, she responded that she has been a member of the Peoples Alliance Party since 2022. When asked about her involvement with the party, she responded that she attends meetings and contributes financially. When asked whether she had voted in general elections in Fiji during the time she has been in Australia, she responded no. When they inquired about voter registration, they found out they had already left. The next general election is in late 2022 or early 2023.
The Tribunal asked the second named applicant what she thought would happen if she returned to Fiji, she responded that they have spent 7 years in Australia and are settled here. They have nothing back home. They are fearful they will be prosecuted because of their involvement with Ms Kirwin and the (former) Prime Minister saying he would go after those who were against him. Her husband worked with Mr Jo Bainimarama and they were family friends with him. They are fearful they will be harmed if they return to Fiji.
During the hearing on 23 March 2023, the second named applicant stated that she voted in the last general election in Fiji in December 2022. This was the first time she voted since coming to Australia. Prior to the last election she joined a protest against the former Prime Minister at [Suburb 2]. She has participated in a total of three protests. The Tribunal noted her evidence that she had not suffered any harm in Fiji. When asked why she thought the Police or security forces would have any interest in her now, she responded that there are some who are still loyal to the former Prime Minister. He has been taken to Court. From here she does not think Fiji is free. The Police and military are loyal to the former Prime Minister. She was a former public servant and worked close to the Prime Minister’s office. She will be recognised by military personnel she worked with. She faces harm if she returns.
The Tribunal asked the second named applicant why she thought the former Prime Minister’s supporters have any interest in her now, she responded that Fiji is a small place. There are people who are loyal to the former Prime Minister. They could harm her or her children. She is fearful. The Tribunal noted that there are thousands of people in Fiji who do not support the former Prime Minister and there is no evidence that they have been harmed. She responded that she worked with the military. When the Tribunal pointed out that the current Prime Minister was also from the military and there may be people in the military who support him, she responded that there are people who are loyal to the former Prime Minister. She knows she was not a high-profile figure. She worked with the military and the Police and is fearful if she returns to Fiji.
The second named applicant provided the Tribunal with a letter of support dated [August] 2016 from Ms Kirwin. It is a lengthy, 161 paragraph pro forma letter with a number of annexures. Most of her letter refers to her activities and the organisations she was involved with. In the letter, she stated that the first named applicant was a registered member of her charity organisation PISAI. She stated that PISAI serves the people of Palm Island and the first named applicant supports the objectives of PISAI. She stated that she launched the FNGE on 26 January 2013 and it was proclaimed established on 26 January 2016 in Canberra. She referred to SBS World News on 31 August 2015 referring to a threat made by the then Prime Minister of Fiji (Mr Frank Bainimarama) to track down and jail Fijians living in Australia and elsewhere who support a Christian successionist movement. She stated that she has been banned from returning to Fiji and is on Fiji’s immigration blacklist.
In her letter of support, Ms Kirwin stated that the first named applicant was from the village of [Village 1] and he “has a cultural identity which the thug regime of Bainimarama and his Muslim Attorney General Aiyaz Sayed Khaiyum are doing their best to exterminate by the point of Khaiyum’s Muslim pen, which is ‘jihad by the pen’”. He attended a protest in Sydney [in] October 2015 against former Prime Minister Frank Bainimarama who was accompanied by minders. One of his minders was his brother, Mr Joe Bainimarama, who took photographs of the protesters. He saw the first named applicant, recognised him and took his photograph.
In her letter of support, Ms Kirwin stated that the first named applicant was one of the leaders of the FNGE, was a ‘front liner’ at the protest [in] October 2015 and also carried a banner at the Proclamation March in Canberra [in] January 2016. The second named applicant and the fourth named applicant accompanied him [in] January 2016. He also attended a protest outside the Department [in] Sydney in 2016. She organised numerous visits to Parliament House for the group which were hosted by Reverend Senator Fred Nile. The first named applicant ‘s presence was always evident throughout these visits.
In her letter of support, Ms Kirwin stated that the first named applicant had been the MC at their members’ meetings and he and the second named applicant were group leaders at their ‘Prayer-intercessory group”. The second named applicant also volunteered to do their books and get them ready for the ATO. Photographs taken at their protests and marches were posted to [social media]. On 11 August 2016, Mr Sitiveni Rabuka (the current Prime Minister of Fiji) was scheduled to speak at the meeting of FNGE. However, he cancelled due to pressure and threats from the then Prime Minister and Attorney General.
In her letter of support, Ms Kirwin stated that the first named applicant’s grounds for protection are that he is a member of a particular social group being a member of FNGE and being associated with her. She requested that he and his family be granted “political refugee protection” in Australia. She subsequently stated that the first named applicant fears persecution because of his religion and race.
During the hearing on 25 March 2022, the Tribunal discussed the contents of Ms Kirwin’s letter with the first named applicant insofar as it related to him. He did not appear to know what was written in the letter of support from Ms Kirwin and some of the evidence he gave contradicted what Ms Kirwin stated about him.
For instance, the first named applicant stated that he did not have any problems in Fiji because of his religion (Christian). When asked whether he had any concerns or fears about returning to Fiji because of his religion, he responded yes. If he wants to share the Jesus, he knows in public he will be taken into custody. They (the government) do not want people to speak about their religion in public. There is a law in Fiji that prevents people from speaking about their religion. He will send a copy of the law to the Tribunal. He subsequently sent the Tribunal a copy of the Constitution of Fiji which did not support these claims.
The first named applicant gave evidence that he did not have any problems in Fiji because of his race. When asked whether he had any concerns or fears about returning to Fiji because of his race, he responded no contrary to Ms Kirwin’s statement. He also stated that he did not go to Parliament House with the group at the invitation of Reverend Fred Niles.
Ms Kirwin’s letter primarily refers to the first named applicant’s involvement with her organisations. According to her, the second named applicant joined the Proclamation March in Canberra [in] January 2016 accompanied by the first named applicant and the fourth named applicant. She stated that the second named applicant also volunteered to do their books and get them ready for the ATO. She also stated that the second named applicant was a group leader at their ‘prayer-intercessory group”.
The second named applicant provided the Tribunal with a number of documents including a post on [Media 1] dated [in] August 2014 and titled [Title 1], four photographs of protesters, screenshots of posts on [social media], a photograph of the title (We will track you down: PM) of an article in The Sun, posts on the [named] Forum dated [date] July 2013, [date] July 2013, [date] July 2013 and [date] February 2015, a flash drive containing country information between 2014 and 2016, a copy of the Constitution of Fiji and Ms Kirwin’s letter of support, hard copies of country information on Fiji dated 2014, 2015 and 2016, a screenshot of a post on [social media] critical of the Magistrate who granted former Prime Minister Frank Bainimarama bail, a photograph of the front page of The Fiji Times dated 13 March 2023 and an article dated 10 March 2023 and titled The ‘Qiliho’ mode published in The Fiji Times.

The second named applicant provided the Tribunal with a screenshot of a post dated [date] August 2014 on [Mr H]’s [social media] page. It was of a link to an article on the [Media 1] website reporting on the protest [in] August 2014.The article is dated [date] August 2014 and is titled [Title 1]. It refers to former Prime Minister Mr Frank Bainimarama attending a pre-election rally with members of the Fijian community at [Suburb 1]. It also refers to other members of the Fijian community protesting outside against him and not being allowed inside. It also referred to an interview with [Mr C], national President of the FDFM. The article had a photograph of some of the protesters including the second named applicant and her husband.
The second named applicant provided the Tribunal with a Statutory Declaration dated 23 September 2016 from [Mr D] who stated that he/she was employed by the [Fijian government] as a clerk during rehabilitation and disaster programmes for tropical cyclone Evan from December 2013 to December 2014. He/she also worked with military personnel during this rehabilitation period. Wiliame Sue, military personnel, always mentioned that [the applicant]’s family are traitors because they went to Australia and attended a protest against Bainimarama’s regime. Therefore, they will be prosecuted by the military if they return to Fiji. They are not secure if they return to Fiji.
The second named applicant provided the Tribunal with copies of photographs of protesters at a protest at [Suburb 2] [in] October 2015 including a photograph of Mr Jo Bainimarama. She also provided screenshots of posts on [social media] of photographs of protesters at the protest at the Fiji Day celebration [in] October 2015. Some of these posts are on Ms Kirwin’s [social media] page and others, including the second named applicant, have shared some of Ms Kirwin’s photographs. The quality of many of the photographs are poor and it is very difficult, if not impossible, to make out the features of the protesters. One of the screenshots is of posts on the Fiji Government’s [social media] page with photographs of the Fiji Day celebration [in] October 2015.
The second named applicant provided the Tribunal with screenshots of posts on [social media] of photographs of protesters in Canberra on Invasion Day/Australia Day 2016. These are from Ms Kirwin’s [social media] page.
The second named applicant provided the Tribunal with screenshots of posts with photographs of the protest outside the Department’s office on her [social media] page and on Ms Kirwin’s [social media] page. She also provided screenshots of posts on the SODELPA Fiji [social media] page, [Mr I]’s [social media] page. She provided screenshots of posts on [Mr J]’s [social media] page and [Mr K]’s [social media] page.
The second named applicant provided the Tribunal with posts on the [named] Forum dated [date] July 2013, [date] July 2013, [date] July 2013 and [date] February 2015 which refer to incidents of violence prior to the general election. She provided an article dated 1 September 2016 from Radio New Zealand in relation to an attack on a Fiji businessman and an article dated 1 October 2014 in relation to a man being beaten up by army officers after he objected to his songs being used in an election campaign for former Prime Minister Frank Bainimarama. This evidence referring to country information in Fiji is considerably old and out of date.
The second named applicant provided the Tribunal with a photograph of the title (We will track you down: PM) of an article in The Sun. There is a quote under the title which reads “The hand of the law is very long. And rest assured that the authorities in Fiji will not rest until you are brought to justice.” The rest of the article is not legible. The second named applicant claimed that the quote was from former Prime Minister Frank Bainimarama.
The second named applicant provided the Tribunal with an article dated 10 March 2023 and titled The ‘Qiliho’ mode published in The Fiji Times. It refers to a 600 to 700 people participating in a reclaim the night march as part of International Women’s Day celebrations being told by the Police that they could not wear pro-West Papua apparel or brandish placards in favour of Iranian women and girls during the march. It referred to an interview with the co-ordinator of the Fiji Women’s Crisis Centre and human rights activist, Ms Ali, who had appealed to the Minister of Home Affairs who intervened. He is quoted as saying “This should never have happened. Your human rights are paramount and I’ve been making that clear. We are working together with Police to undo the mentality that has been the norm over the past 16 years – its slow but it will happen”. The Acting Assistant Commissioner of Police apologised for the “miscommunication”. Ms Ali disputed there being a “miscommunication” and stated that the “Qiliho mode had not gone away yet.”
The second named applicant provided the Tribunal with a photograph of the front page of an article dated 13 March 2023 and titled Drui: No need to panic published in The Fiji Times. It has a photograph of former Prime Minister Mr Frank Bainimarama with four people in front of him greeting him and a suited man beside him who appeared to be a minder or bodyguard. The caption underneath the photograph reads “Former Prime Minister Voreque Bainimarama is greeted by supporters after the Court case at the Suva Magistrates Court on Friday 10 March 2023”.
The rest of the article that goes with the photograph was not provided to the Tribunal. When the Tribunal noted that the article had not been provided, the second named applicant stated that she would provide it to the Tribunal that afternoon. This was not done. The Tribunal gave her two weeks after the hearing to provide further evidence. She sought and was granted an extension of time. Her lawyer subsequently informed the Tribunal that she was unable to provide the evidence requested.
The Tribunal discussed relevant country information with the applicants. The DFAT Country Information Report on Fiji dated 27 September 2017 states that:
The Fiji Democracy and Freedom Movement (FDFM) and the Pacific Indigenous Samaritan Association (PISAI) do not have a reported presence in Fiji and are both based in Australia. Fijian applicants for protection visas have raised association with these organisations as the basis for refugee status. However, DFAT is not aware of any interest in Fiji regarding persons associated with either organisation, with the exception of Mereoni ‘Oni’ Kirwin, who is reportedly banned from entering Fiji, due to her attempts to form a so-called Christian State in Ra and Nadroga (under the banner of PISAI and FDFM) and supporting some persons now in custody.
Provincial councils in Ra, Ba and Nadroga-Navosa provinces and chiefs have distanced themselves from FDFM and PISAI and pledged their allegiance to the Bainimarama government. The SODELPA opposition party officially denied any links to these groups.
Overall, DFAT assesses that individuals associated with the FDFM or PISAI are at a low risk of harassment and arrest or detention by the government solely for being a member or supporter. Individuals or groups who organise and take actions to create Christian separatist states within Fiji are at a moderate to high risk of harassment and arrest by authorities.[1]
[1] DFAT Country Information Report on Fiji dated 27 September 2017.
The Tribunal noted that this country information tends to indicate that the applicants are at low risk of serious harm or significant harm because of their association with Ms Kirwin and membership or support of her organisations.
The second named applicant responded that she disagreed with this report. The first named applicant also responded to this information. (The third and fourth named applicants had not made any claims in their own right at this stage).
Country information indicates that on 9 November 2017 fourteen people from Nadroga Navosa province were sentenced to 2 years and 3 months and 11 days imprisonment.[2] The sentencing judge referred to the accused persons stating that they had been duped by Oni Kirwin and the late Ratu Osea Gavidi.[3] In February 2020, the cases for the Ra group and the Nadroga Navosa group were closed. On 18 February 2020, ten of the fourteen convicted people from Ra province withdrew their appeals because they had already served their sentences.[4] On 25 February 2020, seven people in the Nadroga Navosa case were each ordered to pay $200.00 as bail bond and were told that if they clear their balance then the case could be closed.[5]
[2] Fiji Village, 30 November 2017, All 14 Accused Persons Charged With Sedition Given Prison Sentences (fijivillage.com.fj)
[3] Fiji Sun, 30 November 2017, Sentencing: Nadroga Navosa 14 Jailed For Sedition (fijisun.com.fj)
[4] FijiSun, 19 February 2020, 10 Out Of 14 Who Were Convicted And Sentenced Withdrew Their Appeal (fijisun.com.fj)
[5] FBC News, 25 February 2020, Case to Close for Seven Involved in Nadroga/Navosa sedition – FBC News.
The Tribunal put this information to the applicants and noted that this may lead it to the conclusion that this chapter in Fiji’s history is now closed. The first named applicant and the second named applicant declined to comment. (The third and fourth named applicants had not made any claims in their own right at this stage).
[Media 2] reported on 31 August 2015 that the threat by former Prime Minister Mr Frank Bainimarama to “track down and jail Fijians living in Australia and elsewhere who support a Christian secessionist movement” was dismissed as a diversionary tactic from domestic problems [6]
[6] [Source deleted]

100. This appears to be consistent with information from DFAT which states that “According to our contacts, the organisers of the FDFM have not been targeted specifically on their return to Fiji. Nor have we been able to verify any instances where an individual has been targeted because of their involvement with FDFM. However, if an organiser upon return were then suspected of ongoing anti-regime activity in Fiji, then harassment, persecution and detention would likely follow. We also note there are relatively few Fiji-focused overseas prodemocracy groups. As with FDFM, we are not aware of any specific action having been taken against these groups in Fiji.’[7]
[7] ‘Fiji: CI160304125844367 – IT Workers – Fiji Democracy and Freedom Movement (FDFM)’, Country of Origin Information Services Section (COISS), 16 March 2016, page 9, CR0D9DEFA91.
The Tribunal put this information to the applicants. The first named applicant responded that they cannot protest in Fiji and have no human rights in Fiji even though the Constitution says they have human rights. He knows deep inside that they will be prosecuted and once he returns to Fiji he will be hanged. In 2017, there was a swear word written on the bus against the Prime Minister. They were looking for the child who wrote it. He was interrogated and when he returned, he had bruises on him. Lately in Australia, people are against “ScoMo”. The second named applicant responded that she agreed with what her husband said. They will be hanged if they return to Fiji. In Australia they have human rights and can speak freely. In Fiji they cannot. If they disagree, they will be taken into custody and hanged.
101. The Tribunal raised a number of issues with the applicants. The Tribunal noted that the first named applicant claimed that [Officer A] threatened to kill him if he did not pay for the repairs to the [Vehicle 1]. He claimed that he took this threat seriously. He claimed that he feared for his life and the lives of his family. Yet he refused to pay the money. This threat was made in July 2013. He continued to live and work in Fiji until he left Fiji at the end of May 2014. This was about 10 months after the threat was made. The Tribunal noted that [Officer A] had plenty of time and opportunity to kill him and his family and yet nothing happened. The Tribunal raised its doubts that anything would happen to them if they returned to Fiji 9 years later.
102. The first named applicant stated that he will respond in writing. He was given two weeks to do so. He did not respond in writing. The second named applicant responded that she saw her husband taken and did not know where he was taken. When he came back, he was injured. He told her that he was taken to the naval base and interrogated. He told her the whole story. From that time, they planned to get out of the country and did not tell anyone so they would not find out. In Fiji they did not have the right to earn money. They could just come to Australia. They had to build up their bank account and apply for a visa. Her husband came first as the military was after him at that time. It was difficult for them. They did it in such a way that they did not know they were preparing to come to Australia. This response does not address the issue raised with her. (The third and fourth named applicants had not made any claims in their own right at this stage).
103. The evidence before the Tribunal indicates that [Media 1] reported on the protest against former Prime Minister Mr Frank Bainimarama at [Suburb 1] [in] August 2014 and that they published a photograph of the protesters which included the first named applicant and the second applicant. Footage of the protest may have been aired in Fiji. The evidence also indicates that photographs taken at the protest were posted to the [social media] page of Ms Kirwin. The evidence indicates that some of the second named applicant’s former work colleagues became aware that she had attended the protest [in] August 2014. It is highly unlikely though that images of the first named applicant and the second named applicant attending the protest at [Suburb 1] [in] August 2014 were widely disseminated in Fiji as claimed.
104. When the Tribunal raised this as an issue with the applicants, the first named applicant responded that after that protest his wife’s employment was terminated and he was forced to resign. They were clearly seen. The second named applicant responded that she worked in the office that represented the [government]. When she was seen on [Media 1], Fiji 1 News and on social media, she was brought up as a topic at a meeting at work. They contacted her and told her not to return to Fiji. She wanted to show people in Fiji that there is freedom in Australia and that they do not have human rights. She is fearful and cannot return to Fiji. (The third and fourth named applicants had not made any claims in their own right at this stage).
105. The written evidence before the Tribunal is not consistent with the response given by the first named applicant. The applicants provided the Department with two letters from [Government Agency 1]. The first is dated [in] April 2014 and is addressed to the Visa Officer, Australian Visa Application Centre. It indicates that the first named applicant had been employed by [Government Agency 1] of Fiji [since] November 2008 and was currently employed as a [Occupation 2] at the [City 1] office. Approval was granted for him to have annual leave [from] May 2014 [to] July 2014. He must resume duties [in] July 2014.
106. The second document is a Memorandum dated [in] August 2014 from [Government Agency 1] to the first named applicant. It indicates that he had failed to resume duties [in] July 2014 according to his leave transactions and [Government Agency 1] had not received any advice from him. He was thereby given seven days to respond and report back to work. A failure to do so would be assumed to be an abandonment of employment. He did not provide any other letters in relation to his employment to the Department or the Tribunal.
107. This evidence tends to indicate that the first named applicant did not resume his employment in Fiji [in] July 2014 as required or apply for an extension of his leave or resign from his employment or inform his employer that he was not returning to work. The Memorandum dated [in] August 2024 indicates that if he did not respond to the Memorandum and return to work within seven days, he would be deemed to have abandoned his employment. As he did not do either of these things, it is entirely reasonable that he was deemed to have abandoned his employment and his employment was terminated.
108. There is nothing in these letters from [Government Agency 1] to indicate that the first named applicant’s employment was terminated because he was involved in the protest at [Suburb 1] [in] August 2014 as claimed. The written evidence provided by the applicants, referred to in paragraphs 52 – 55 above, indicate that the second named applicant was required to resume her duties at work [in] September 2014 following an extended period of leave and when she did not do so she was deemed to have resigned from the Public Service. The evidence before the Tribunal does not support the claim that her employment was terminated because she attended the protest at [Suburb 1] [in] August 2014.
109. The second named applicant’s evidence is that she was not a member of SODELPA or any political party in Fiji. She stated that in Fiji, if you work in the Public Service, you cannot be a registered member of a political party. People in the Public Service have to maintain a neutral status. This is consistent with the evidence given by the first named applicant. The first named applicant stated that he and the second named applicant were public servants in Fiji. Public servants in Fiji are not allowed to be members of a political party or to campaign on behalf of a political party. He was not a member of any political party in Fiji and did not participate in any political activities in Fiji.
110. The Tribunal noted that the first named applicant and second named applicant’s activities in Australia may prevent them from getting back their old jobs in the Public Service or from getting other jobs in the Public Service if they returned Fiji. It may also impact on their friendship with the Bainimarama family. However, it would not prevent them from getting jobs in the private sector. The first named applicant responded that the (former) Prime Minister monitors everything and has a finger in every pie. Their employment would be affected whether it be in the private sector or the public sector. If he is alive, they never get employment in Fiji again.
111. The second named applicant responded that she agreed. She stated that they can go back to Fiji. In Australia, if they do not work, they cannot eat. In Fiji, if they do not work, they can still eat. If they go back to Fiji, they will not be able to work anywhere. The Tribunal does not accept this response as it is implausible.
112. The second named applicant’s evidence to the Tribunal is that her eldest son did not come to Australia with the rest of the family and has continued to reside in Fiji. The Tribunal raised as an issue with the applicants the fact that, despite their claims that the former Prime Minister, Mr Frank Bainimarama, and his brother, Mr Jo Bainimarama, are vengeful and will take revenge on them, their eldest son has not been harmed either because the first named applicant did not pay the money to [Officer A] or because they attended the protests in Australia or because they associated with Ms Kirwin and her organisations. The Tribunal noted that if the authorities in Fiji wanted to get revenge on them, as claimed, and could not get to them because they are in Australia, they could very easily have harmed their eldest son if that was their intention. However, they had not done so. The Tribunal raised its doubts that they would now be interested in them after all these years.
113. The first named applicant responded that, when they left Australia, their son went with his uncle to live on a farm in the interior. He is still there. The second named applicant responded that she asked her mother to take care of her eldest son when her two younger children came to Australia. She did this because she was fearful that the military would go after him. She rarely speaks to her eldest son. She speaks to her mother who conveys messages to him. They do not ask him to go to public places. When asked whether there was any reason why they could not return to Fiji and live on the farm, the first named applicant responded that Fiji is a good place. If they set foot in Fiji they will be taken into custody. They fear for their lives. The second named applicant responded that the election is getting closer. If there is a change of government, they want to return to Fiji. (The third and fourth named applicants had not made any claims in their own right at this stage).

143. The Tribunal accepts that the second named applicant received a message from a former work colleague, [Mr H], with a link to the [Media 1] website. The Tribunal accepts that two other former work colleague, [Ms E] and [Ms F], contacted her and told her that they had seen her in a photograph of the protest on a post on [social media] and told her that what she did was wrong. The Tribunal accepts that they did not contact her thereafter and she was unable to contact them. The Tribunal accepts that she was contacted by a person named [Ms G], who was from the Human Resources Department at her former workplace, and informed that he/she had seen a post of her and the first named applicant attending the protest [in] August 2014 on [social media].
144. The Tribunal accepts that [Ms G] informed her that headquarters was concerned about what they had seen on [social media] and what she did, suggested that she write a letter of resignation to clear her name and told her that her employment would be terminated on her return to Fiji if she did not resign. The Tribunal considers that the second named applicant’s participation in the protest at [Suburb 1] [in] August 2014 was a possible breach of the Public Service Code of Conduct in Fiji.[12] The Tribunal does not accept that images of the first named applicant and the second named applicant attending the protest at [Suburb 1] [in] August 2014 were widely disseminated in Fiji.
[12] Ibid.
145. The Tribunal does not accept that the second named applicant’s employment in the public service in Fiji and her access to her work email was terminated because she participated in the protest at [Suburb 1] [in] August 2014. On the evidence before it, the Tribunal finds that [in] April 2014 her appointment at the Fiji Public Service was renewed for a period of 3 years effective [from] July 2014 [to] July 2017. The Tribunal finds that she applied for leave from her employment to travel to Australia [in] July 2014. The Tribunal finds that she subsequently applied for an extension of her leave and was granted an extension [until] September 2014.
146. The Tribunal finds that the second named applicant was required to resume duties [in] September 2014, was advised of the provisions of Regulation 20(3) of the Public ServiceRegulations 1999 and that if she failed to resume duties [in] September 2014 she would be taken to have resigned from the Public Service. The Tribunal finds that she did not return to Fiji and resume her duties [in] September 2014. The Tribunal considers that she would therefore have been taken to have resigned from the Public Service. The Tribunal accepts that her vacant position may have thereafter been advertised by the Public Service Commission.
147. The Tribunal considers that the second named applicant’s possible breach of the Public Service Code of Conduct may disqualify her from getting her old job back or getting a new job in the Public Service in Fiji. However, the Tribunal considers that this would not prevent her from obtaining employment in the private sector. She has formal qualifications in Fiji, being a Diploma in [Subject 2] from [University 1] and considerable work experience in Fiji. Since coming to Australia she has obtained further formal qualifications including a Certificate III in [Subject 3], a Certificate III in [Subject 4] and a Certificate in [Subject 5]. She has acquired considerable work experience in Australia and is currently working as an [Occupation 3]. The Tribunal considers that her formal qualifications and work experience in Australia will enhance her prospects of obtaining employment in Fiji. The Tribunal is not satisfied that she will never get employment in Fiji.
148. The Tribunal accepts that the second named applicant first heard of Ms Kirwin when she found out that the former Prime Minister, Mr Frank Bainimarama, was going to be the chief guest at Fiji Day celebrations at [Suburb 2] [in] October 2015 and that there was going to be a protest against him. The Tribunal accepts that Mr Jo Bainimarama also attended the celebrations. The Tribunal accepts that the first named applicant, the second named applicant and the fourth named applicant participated in the protest and met Ms Kirwin at that time. The Tribunal accepts that [Media 2] reported on the protest. The Tribunal accepts that Ms Kirwin posted photographs of the protest on her [social media] page including photographs of the first named applicant and the second named applicant. The Tribunal accepts that some members of PISAI may have also posted photographs on their [social media] pages. The Tribunal accepts that members of the former Prime Minister’s entourage may have also taken photographs.
149. The Tribunal accepts that the second named applicant joined PISAI and that she supported this organisation because it helped the community and the indigenous peoples of Australia. The Tribunal accepts that she attended meetings, made financial contributions and assisted by helping with their financial records. The Tribunal accepts that she sometimes led the group in prayer. The Tribunal accepts that she was not a member of FDFM or FNGE but supported these organisations as they were the same group as PISAI. The Tribunal accepts that her support of FNGE began in 2015 and ended in 2015. The Tribunal accepts that she became a supporter of the SODELPA party in Australia.
150. The Tribunal accepts that the second named applicant and the fourth named applicant attended an Australia Day/ Invasion Day protest in Canberra to demonstrate solidarity with indigenous Australians. The Tribunal accepts that the second named applicant participated in a protest outside the Department’s office [in] Sydney. The Tribunal accepts that she has had no contact with Ms Kirwin or any of her organisations since 2016.
151. The Tribunal accepts that the second named applicant attended a protest against former Prime Minister Frank Bainimarama prior to the election in 2022. The Tribunal accepts that she voted in the 2022 Fiji general election and that this was the first time she voted since she came to Australia in 2014. The Tribunal accepts that she became a member of the Peoples Alliance Party in 2022. The Tribunal notes that the leader of this party, Mr Sitiveni Rabuka, is now the Prime Minister of Fiji.[13]
[13] A New Era in Fijian Politics, Center for Strategic and International Studies, 7 February 2023. (A New Era in Fijian Politics (csis.org))
152. In view of the above findings and the country information referred to above, the Tribunal is not satisfied that the second named applicant is at risk of serious harm or significant harm because she and the first named applicant participated in the protest [in] August 2014 and/or the protest [in] October 2015 from the Fijian government, members of the military or the Police or any other Fijian authority loyal to Mr Frank Bainimarama, loyal supporters of Mr Frank Bainimarama or members of the Bainimarama family including Mr Frank Bainimarama. The Tribunal is not satisfied that there is a real chance or a real risk that she will be prosecuted because of her and the first named applicant’s previous association with Ms Kirwin and her organisations. The Tribunal considers that her participation in the protests will have an adverse impact on her friendships with Bainimarama family members.
153. The Tribunal is not satisfied that the second named applicant is at risk of serious harm or significant harm because of comments she has made in the past as claimed or following certain individuals on social media as claimed. The Tribunal is not satisfied that she is at risk of serious harm or significant harm because her identity and actions will be known regardless of where she moved within Fiji as claimed. The Tribunal does not accept that she will be hanged if she returns to Fiji.
154. The Tribunal accepts that the second named applicant has a subjective fear of persecution if she returns to Fiji and that she wants to live in Australia with her children. The Tribunal is not satisfied that her fear of persecution is well founded.
155. For the above reasons, the Tribunal is not satisfied that the second named applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to Fiji now or in the reasonably foreseeable future.
Does Australia have protection obligations to the second named applicant under the Refugees Convention?
156. Having considered all of the second named applicant’s claims, individually and cumulatively, and all the evidence and submissions and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the second named applicant will suffer serious harm for reason of her actual or imputed political opinion or any other reason under the Refugees Convention if she returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the second named applicant under the complimentary protection criterion?
157. As the Tribunal has found that the second named applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
158. Having considered all of the second named applicant’s claims, individually and cumulatively, and all the evidence and the submissions and in view of the findings above, the Tribunal is not satisfied that the second named applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel and inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji now or in the reasonably foreseeable future.
159. Accordingly, the Tribunal is not satisfied that there are substantial grounds of believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Fiji, that is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act.
THIRD NAMED APPLICANT
Country of reference/Receiving country
160. The third named applicant claims to be a citizen of Fiji and have provided copies of the biodata pages of his Fijian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Fiji. The Tribunal finds that Fiji is the country of reference for the purpose of assessing his claims for protection under the Refugees Convention. The Tribunal finds that Fiji is the receiving country for the purpose of assessing his claims for protection under the complimentary protection criterion.
Third country protection
161. There is no evidence before the Tribunal to suggest that the third named applicant has the right to enter and reside in any safe third country for the purpose of s.36(3) of the Act.
Assessment of claims
162. The third named applicant is the adult son of the second named applicant and the Tribunal finds accordingly. He did not make any claims for protection in his own right in his application for Protection visas filed on 29 August 2014.
163. The third named applicant attended the hearing before the Tribunal (differently constituted) on 30 September 2016 and gave evidence. He stated that it is difficult for him to think of a future without his parents or of his sister being harmed. If anything happens to his parents, he is the “only boy” and is responsible for the home. He is fearful after the experience he had when his father came to Australia. He was the only man at home and had a sister. He always dreaded that the soldiers would visit their home, in the absence of his parents, and something could happen to his sister. His education suffered when his father left and came to Australia because he was the father of the home, had to look after the home and his sister and could not concentrate on his education. In Australia, he did not attend the protests. He did attend meetings.
164. The third named applicant did not attend the hearing before the Tribunal on 2 March 2022. He attended the hearing on 25 March 2022 and gave evidence that it has been a long time and he misses home. He is scared to return to Fiji in case something happens to him. It will affect their application. When asked why he is scared to return to Fiji, he responded because of what happened to his father. He does not want anything to happen to him if he returns to Fiji. When asked why he thought something would happen to him, he responded that they did not know that they were running away from Fiji. He does not want to go back to Fiji. He has a life here and works here.
165. The Tribunal asked the third named applicant whether anything had happened to his older brother in Fiji. He responded not that he knew. When asked whether he wished to say anything else, he responded no. When asked whether he had told the Tribunal everything he wanted to say, he responded yes.
166. At the last hearing, the second named applicant initially gave evidence that the third named applicant did not have any claims in his own right. The third named applicant then gave evidence that he is afraid to return to Fiji and wants to stay in Australia. When asked why he is afraid, he responded that he is still haunted by what happened to his parents. He has one sister. He is afraid to return to Fiji. The Tribunal noted that the incident with his father occurred 10 years ago and that there is now a new government in Fiji. He responded that the government has changed but the army and the Police are still there and the rest is still there. The Tribunal noted that, 10 years ago, an army officer’s brother’s car broke down and he wanted his father to pay for the repairs. When asked why he thought that would be a problem now, he responded that the army officer has people “under his rule” who he can influence. When the Tribunal noted that a lot has happened in the last 10 years, he responded that the risk is still there.
167. The Tribunal asked the third named applicant whether there was any other reason why he did not want to return to Fiji. He responded that his father passed away. It is his personal conviction that his father’s spirit will remain here. He does not feel that it is right for him to leave him here and return to Fiji. Those are the two reasons why he does not wish to return to Fiji. When asked whether he wished to say anything else, he responded no. When asked whether he had told the Tribunal everything he wanted to say, he responded yes.
168. The evidence before the Tribunal is that in July 2013 [Officer A] asked the first named applicant to pay the sum of $1000.00 for the cost of repairs to his brother’s motor vehicle. When he refused to do, so he was taken to the naval camp where he was humiliated by being forced to run in a pool of mud. He was released later in the day and threatened that if he did not pay the money, they would bring him back to the camp. [Officer A] subsequently asked him for the money twice and he refused to pay the money. He was not taken back to the naval camp or harmed in any way. He remained in Fiji and continued working in the same job from July 2013 until he left Fiji and travelled to Australia [in] May 2014. [Officer A] had plenty of time and opportunity to harm him during that period but did not do so.
169. The evidence before the Tribunal is that military officers periodically went to the third named applicant’s home and enquired about the whereabouts of his father. When they were informed that he was in Australia, the enquired about when he would return to Fiji. His mother, the second named applicant, was not harmed by military officers or threatened with harm when she lived in Fiji. The third named applicant resided in Fiji until he left Fiji and travelled to Australia with his sister [in] August 2014. [Between] July 2014, when his mother left Fiji and travelled to Australia, [and] August 2014 he and his sister lived in Fiji without either of their parents. He has not claimed that he was harmed by military officers or threatened with harm.
170. In these circumstances, it is implausible that the third named applicant would be at risk of serious harm or significant harm, because of what happened to his father 10 years ago, if he returns to Fiji now or in the foreseeable future. The Tribunal is not satisfied that he is of adverse interest to anyone in Fiji.
171. The Tribunal accepts that the third named applicant does not want to return to Fiji and wants to live in Australia. The Tribunal accepts that one of the reasons why he wants to remain in Australia is because his father is buried here. The Tribunal accepts that he may have a subjective fear of persecution if he returns to Fiji. The Tribunal is not satisfied that his fear of persecution is well founded.
172. For the above reasons, the Tribunal is not satisfied that the third named applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.
Does Australia have protection obligations to the third named applicant under the Refugees Convention?
173. Having considered all of the third named applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the third named applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason under the Refugees Convention if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the third named applicant under the complimentary protection criterion?
174. As the Tribunal has found that the third named applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
175. Having considered all of the third named applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the third named applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel and inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.
176. Accordingly, the Tribunal is not satisfied that there are substantial grounds of believing that, as a necessary and foreseeable consequence of the third named applicant being removed from Australia to Fiji, that is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
FOURTH NAMED APPLICANT
Country of reference/Receiving country
177. The fourth named applicant claims to be a citizen of Fiji and have provided copies of the biodata pages of her Fijian passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Fiji. The Tribunal finds that Fiji is the country of reference for the purpose of assessing her claims for protection under the Refugees Convention. The Tribunal finds that Fiji is the receiving country for the purpose of assessing her claims for protection under the complimentary protection criterion.

Third country protection
178. There is no evidence before the Tribunal to suggest that the fourth named applicant has the right to enter and reside in any safe third country for the purpose of s.36(3) of the Act.
Assessment of claims
179. The fourth named applicant is the adult daughter of the second named applicant and the Tribunal finds accordingly. She did not make any claims for protection in her own right in her application for Protection visas filed on 29 August 2014.
180. The fourth named applicant attended the hearing before the Tribunal (differently constituted) on 30 September 2016 and gave evidence. She stated that she attended the protest at [Suburb 2] ([in] October 2015) and the protest at Canberra (on Australia Day/Invasion Day).
181. The fourth named applicant did not attend the hearing before the Tribunal on 2 March 2022. She attended the hearing on 25 March 2022 and gave evidence that at the first hearing she had anxiety about what happened in Fiji. She started getting therapy and going to Church. She is all right now. When asked whether she wished to say anything else, she responded no. When asked whether she had told the Tribunal everything she wanted to say, she responded yes.
182. At the last hearing, the second named applicant initially gave evidence that the fourth named applicant did not have any claims in her own right. The fourth named applicant then gave evidence that she feared harm and persecution if she returns to Fiji. The whole family is here. Her father is buried here. Her whole life is here. When asked why she is now making these claims 9 years after her visa application was lodged, she responded that she was afraid. It was always in her and she did not want to say it out (loud).
183. The Tribunal asked the fourth named applicant why she feared harm and persecution if she returned to Fiji. She responded that she fears harm because of her parents. They were government workers and she has the same surname. They will track down any family members. That is why she fears returning to Fiji. When asked why they will track down family members, she responded because of what happened to her mother and father. She is a girl and they can do anything (to her). When asked whether her eldest brother had been harmed and persecuted in Fiji, she responded no. He is away from the capital city. When asked whether there was any reason why she could not live away from the capital city, she responded that they could find you wherever you are. When the Tribunal pointed out that they had not found or harmed her eldest brother, she responded that they cannot get in contact with him. He is in hiding and they know where he is hiding. If they contact him and ask him how he is, they will track down the number.
184. The Tribunal asked the fourth named applicant whether there was any other reason why she did not want to go back to Fiji. She responded that her father is buried here and her whole life is here. When asked whether there was anything else she wished to say, she responded no. When asked whether she had told the Tribunal everything she wanted to say, she responded yes.
185. In view of the findings above, the Tribunal is not satisfied that the fourth named applicant is of adverse interest to anyone in Fiji. The Tribunal does not accept that she will be tracked down because she is a family member of her parents or because of what happened to her parents or because she is female or for any other reason.
186. The Tribunal accepts that the fourth named applicant does not want to return to Fiji and wants to live in Australia. The Tribunal accepts that one of the reasons why she wants to remain in Australia is because she has studied here, has employment here and has made a life for herself here. The Tribunal also accepts that she wants to remain in Australia because her father is buried here. The Tribunal accepts that she may have a subjective fear of persecution if she returns to Fiji. The Tribunal is not satisfied that her fear of persecution is well founded.
187. For the above reasons, the Tribunal is not satisfied that the fourth named applicant is at risk of serious harm or significant harm for any of the reasons claimed if she returns to Fiji now or in the reasonably foreseeable future.
Does Australia have protection obligations to the fourth named applicant under the Refugees Convention?
188. Having considered all of the fourth named applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the fourth named applicant will suffer serious harm for reason of her actual or imputed political opinion or any other reason under the Refugees Convention if she returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the fourth named applicant under the complimentary protection criterion?
189. As the Tribunal has found that the fourth named applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
190. Having considered all of the fourth named applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the fourth named applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel and inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji now or in the reasonably foreseeable future.
191. Accordingly, the Tribunal is not satisfied that there are substantial grounds of believing that, as a necessary and foreseeable consequence of the fourth named applicant being removed from Australia to Fiji, that is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
192. For the reasons given above, the Tribunal is not satisfied that the second named applicant, third named applicant and the fourth named applicant are persons in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
193. There is no suggestion that the second named applicant, third named applicant and fourth named applicant satisfy s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, they do not satisfy the criterion in s.36(2) of the Act.
DECISION
194. The Tribunal affirms the decision not to grant the applicants Protection visas.

L. Symons
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.
…

[2023] AATA 3187

23 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Judicial Review

Standing