1903822 (Refugee)

1903822 (Refugee) [2024] AATA 1226 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Anthony Silva (MARN: 9901579)
CASE NUMBER:  1903822
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Michael Simmons
DATE:9 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 January 2024 at 12:38pm
CATCHWORDS
REFUGEE – protection visa – Fiji – actual and imputed political opinion – anti-army – anti-government – Social Democratic Liberal Party (SODELPA) supporter – implicated in relative’s business dealings – threats of harm by creditors of relative – vague and inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 (the delegate) on 1 February 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be a family and citizens of Fiji. The first and second named applicants indicated that they are husband and wife respectively, and that the third and fourth named applicants are their daughters. They applied for the visas on 4 September 2018. Only the first named applicant made claims to fear harm in Fiji, though he indicated that he also fears for the lives of his wife and daughters in Fiji for the same reasons he himself fears harm there.
The Tribunal invited all applicants to attend a hearing to give evidence and present arguments in support of their application. Only the first named applicant (hereafter, the applicant) indicated he wished to attend, and he appeared before the Tribunal on 5 December 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicants are represented in relation to the review by Mr Silva. The representative attended the Tribunal hearing.
During the hearing the applicant indicated that he and his wife now have a third daughter, who is around [age]. There is no suggestion that she has been the subject of a reviewable decision which has been appealed to the Tribunal. It is not contended, nor am I satisfied, that the Tribunal has jurisdiction in respect of this child.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
A person may also be entitled to the grant of the visa if they are a member of the same family unit of someone who is a refugee in accordance with s 36(2)(a) or who is entitled to complementary protection under s 36(2)(aa).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
Details provided in the applicant’s visa application and the accompanying passport and marriage certificate indicate he was born in [year] in [town] on the Fijian Island of Vanua Levu. He claims he is a Fijian citizen, is ethnically Fijian and that he is a Christian. He indicated that he was married in August 2012 in Suva and that he now has three daughters.
In Fiji he completed high school and subsequently undertook trade based studies. He has undertaken work as a [variety of occupations], run his own [Business 1], and worked on the family farm. In Australia he is working [in a factory].
The applicant travelled to and from Australia on four occasions between October 2016 and April 2018, before returning in July 2018 to apply for protection. He also travelled to [three other countries, including Country 1] in 2012 and 2013 with his church.
I am satisfied that the applicant’s identity is as claimed and that he is a Fijian citizen.
The second, third and fourth named applicants provided copies of their Fijian passports. The second named applicant also provided a copy of her marriage certificate. I am satisfied that the second, third and fourth named applicants’ identities are as claimed and that they are Fijian nationals.
Fiji is the country of reference for the purpose of this assessment.
CLAIMS AND EVIDENCE
In the visa application it is contended that “the applicants' claims are based on one or more of the following bases: Convention Bases - political opinion and imputed political opinion (against the army and/or the government); and Complementary Protection”.
In the September 2018 visa application, the applicant indicated he left Fiji because of problems arising out of his connection with his mother’s first cousin, [Uncle A] (who he refers to as his uncle). [Uncle A] was close to the applicant’s mother and also served in the military with the applicant’s father.
[Uncle A] and his de facto partner, [Ms B], moved in with the applicant and his family in 2012. [Uncle A] was generous and assisted the applicant’s family with some renovations in the house and also helped his siblings financially. [Uncle A] did not want to discuss his work, though the applicant had some idea of what he was doing. Eventually [Uncle A] told him [he had Business 2].
In November 2013, while [Uncle A] was away on work, some men came to the applicant’s home and questioned his sister about [Mr A’s] whereabouts. She told them she did not know where he was, so they slapped her and pushed her to the ground. Following this, the applicant’s mother asked [Uncle A] to leave, but he assured her this would not happen again and was allowed to stay.
In December 2014 the applicant borrowed $15,000 from [Uncle A] to start his own [Business 1]. In March 2016 he paid [Uncle A] back this money in full. He closed his [Business 1] in late 2016.
Twice during December 2016, a group of soldiers and ex-soldiers came to the applicant’s home to meet [Uncle A]. [Uncle A] said these men were his bodyguards and that he provided work for them overseas. The applicant and his family were suspicious and scared, so his mother asked [Uncle A] to move out, which he did along with [Ms B] and their daughter in January 2017.
[Ms B’s] relationship with [Uncle A] broke down, and along with their daughter she went to live with her new lover. In March 2017, [Ms B] was working as a live in babysitter at the house next door to the applicant’s but would often visit the applicant’s house. [Uncle A] tried to find [Ms B] at the applicant’s house, but she fled next door to her employer’s house. [Uncle A] found her there and murdered her. He was imprisoned shortly after.
Following this, soldiers began coming to the applicant’s house complaining that [Uncle A] took money from them on the pretext of arranging jobs for them abroad that never eventuated. They wanted the applicant to repay them because they said he was running the [Business 1] with funds from T. The applicant told them he did not owe [Uncle A] any money and that they should go and see him in jail and ask him.
On 8 February 2018, [Uncle A] sent an associate to the applicant to ask him to help pay some of the money he owed, because he feared for his safety. The applicant told him he that he didn’t have much money and was not able to help him. On 8 May 2018, [Uncle A] was found guilty of [Ms B’s] murder. [Uncle A] kept tell people that the applicant would pay back their money.
On 28 June 2018, the applicant was threatened by four soldiers who stopped him on the way home and said that [Uncle A] owed an army [officer], [Officer C], $20,000, and that he had to pay back that money otherwise they would kill him.
On 11 July 2018, three men came to the applicant’s home and asked about him and his sister while they were both out.
On 20 July 2018, the applicant was threatened by two army officers in his home, one of whom was [Officer C]. [Officer C] accused the applicant of being corrupt because he and [Uncle A] had ripped people off. The applicant replied that the whole army is corrupt, including the big bosses Bainimarama and Khaiyum. [Officer C] then assaulted the applicant. He told the captain that he supports SODELPA and is an iTaukei patriot and that it is the army that is corrupt, at which point [Officer C] tried to throttle the applicant before the other army officer stopped him. [Officer C] said he would tell his commander what the applicant had said about the army and Mr Bainimarama, and he would come and shoot the applicant in the head. He told the applicant he had 10 days to pay the money owed by [Uncle A], and that this was the final warning.
The applicant’s wife (the second named applicant) was very scared and convinced the applicant to buy tickets to leave for Australia, which they did [in] July 2018. On 1 August 2018, three people came to the applicant’s home and damaged it.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are: whether any of the applicants face a real chance of serious harm, or a real risk of significant harm, in Fiji in the reasonably foreseeable future; or whether they are members of the same family unit of someone who is a refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Prior to the hearing, the applicant and his representative provided a statement entitled “AAT Submissions” dated 28 November 2023, signed by them both. Almost all of the content of this document reproduces the September 2018 statutory declaration provided by the applicant with his visa application, albeit written in the third person. I asked whether this document conveyed evidence or legal argument. The applicant stated that the submission restated his own earlier statement. I sought clarification as to whether this statement provides any new, changed or updated details, or any more recent information which postdates the September 2018 statutory declaration. Both confirmed it did not. I also confirmed that the final three paragraphs of that document were a submission that the applicant considers he meets the complementary protection criterion. The representative confirmed that this was correct, but that he also considers that he meets the refugee criterion.
The applicant and the representative were afforded two weeks to provide any further information they wished to rely on after the hearing. The Tribunal received media reporting and some photographs on 6 December 2023. The applicant’s representative advised the Tribunal he would think through whether there were any further submissions on issues that he needed to provide. No further submissions were received.
Problems related to [Uncle A]
The applicant’s account of the difficulties he claims he experienced due to his connection with [Uncle A] raised various concerns that cause me to doubt whether he is recounting lived experiences. He has offered an unpersuasive, vague and largely uncorroborated account of these problems. During the hearing and in his visa application, the applicant has variously sought to add different dimensions to the issues arising from [Uncle A] not paying his business debts, including related to [Ms B’s] murder, anti-army and anti-government political views as well as indigenous and religious discrimination. When pressed for details on these matters and why he had a future fear of harm in Fiji in connection with them, the applicant providing vague and unconvincing responses which ultimately circled back to his initial asserted fear of harm from [Uncle A's] creditors.
I noted during the hearing that the applicant had not provided any corroborative material to show that [Uncle A] is a relative and that he lived with him, that [Uncle A] loaned him money, that [Uncle A] was a businessman engaged in [Business 2], or that [Uncle A] had engaged in corrupt business practices. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Following the 5 December 2023 hearing I afforded the applicant two weeks to provide any further corroborative material he wishes. On 6 December 2023, the applicant provided some photographs and nine media reports to the Tribunal via his representative. These are described as “Photos of the applicant's connection to [Uncle A]- living together at the applicant's house”, and “[Uncle A’s] [Business 2]”. The nine media articles are dated from November 2004 to May 2018. Most of the media articles relate to [Uncle A’s] business dealings and allegations of misconduct against him, and most are dated February 2013 and earlier. The two more recent articles from 2017 and 2018 concern his murder charge but also reference his business.
The media reports indicate that there were numerous allegations against [Uncle A] in the Fijian media from 2004 until 2013. These articles detail both the nature of [Uncle A’s] [Business 2] and contain various assertions, including that [Uncle A] took funds [for work] that did not eventuate and sent Fijians to [work] under poor conditions, contrary to what his business had promised them. Given the considerable reporting of these allegations in various media outlets over a number of years, I simply do not accept the applicant’s narrative that he was unaware of the allegations until after [Uncle A] was imprisoned in 2017. I also do not accept he was unaware of the nature of the business [Uncle A] engaged in until 2013, given this was also mentioned in the media over many years. I consider that the information in the media reporting provided after the hearing seriously undermines the applicant’s narrative in respect of when and how he claims problems arose for him due to [Uncle A’s] business dealings. Given the considerable media reporting on the matter, I accept that [Uncle A] has had [Business 2] and that allegations have been made against him in relation to his business dealings.
Some of the photos seem to depict a person with a likeness to the applicant holding young children. One photo labelled “applicant, wife, [Ms B], and another cousin” seems to show the applicant in a [restaurant] with three women. One of the women bears some resemblance to [Ms B] as per the images from the reporting on her murder that was provided to the delegate. Another is labelled “[Uncle A] and children at my home – my mum, and grand father too” and is a page showing various smaller images depicting a young child and four adults, one of whom appears to be holding a newborn. One of these adults seems to bear a resemblance to the images of [Uncle A] shown in the media articles before me. I am prepared to accept on the basis of these photos that the applicant knows [Uncle A] and knew [Ms B], and that they are related. However, these images do not in my view establish that [Uncle A] and the applicant ever lived together as claimed.
I asked the applicant to explain how [Ms B’s] murder in 2017 meant that he feared he may be harmed in the future were he to return to Fiji. The applicant provided vague and shifting responses to these questions. Initially he said that there were rumours going around that [Ms B] was spreading news about [Uncle A’s] business dealings, which is not something mentioned in his visa application. When I sought clarification on this response, the applicant indicated people thought [Ms B] was exposing [Uncle A’s] corrupt business practices and making them public. I note that at the time of [Ms B’s] murder, the material provided by the applicant indicates allegations against [Uncle A] had been circulating in Fijian media for a number of years, which cast doubt over his suggestion that [Ms B] spreading rumours on these matters was linked to her murder. When I again asked what the future risk would be for the applicant due to [Ms B’s] 2017 murder, he replied that [Uncle A] owes many people money and [Ms B] was at his home before he left the country. When I again sought clarification about why [Ms B’s] 2017 murder may expose the applicant to a future risk of harm in Fiji, he replied that his only concern is with the people who [Uncle A] owes money to and not so much with [Ms B’s] death. At the end of the hearing, the representative stated that if [Ms B] was not murdered, the applicant would not have any fear, because [Uncle A] would be out of jail and the people he owed money to would have been able to contact him directly and not have to harass the applicant. The applicant has provided media reporting regarding [Uncle A’s] trial and sentencing for the murder of [Ms B] and on the basis of this material, I accept that [Uncle A] murdered [Ms B] as claimed. Given the applicant’s oral evidence to me at hearing, I am satisfied that he does not fear harm were he to return to Fiji because of [Ms B’s] murder.

I asked the applicant when his problems in Fiji first begin. He replied that they began in 2017 when [Uncle A] was imprisoned as that was the first time that people began coming to his home asking about money that [Uncle A] owed them. The applicant told me that [Uncle A] only told him what sort of business he did in 2013. He claims that due to [Uncle A] living with his family and providing him a loan for his [Business 1], which he later repaid, [Uncle A’s] creditors have threatened and physically harmed him on various occasions. He also told me that the first time he heard allegations that [Uncle A] was not fulfilling his business promises was in 2017. When I sought to clarify this, he confirmed that it was only after [Uncle A] was imprisoned in 2017 that he heard allegations of his corrupt practices. I note that the applicant also claims that as early as 2013, soldiers were visiting the family home in connection with [Uncle A]. In the context of the numerous incidents the applicant claims occurred at his home from 2013 onwards, and the various media reports from this time, I simply do not find it plausible that he was unaware of the allegations against [Uncle A] until 2017. He claims that his [sister] was assaulted by soldiers looking for [Uncle A] in November 2013 and he also told me that business associates of [Uncle A] visited his home in 2014 and 2015 asking about their passports, something which is not mentioned in the visa application. He then claims that twice in December 2016, men wearing uniforms and carrying guns came to his home to see his uncle, which scared his family and prompted his mother to ask [Uncle A] to move out. Given these various incidents, and the media reporting conveying allegations against [Uncle A] from as early as 2004, I do not accept the applicant’s assertions that he first became aware of the allegations against [Uncle A] after he was imprisoned in 2017 and I do not regard his narrative regarding the onset of the problems he attributes to [Uncle A] to be credible.
After [Uncle A] was sent to jail in March 2017, until around February 2018, it is claimed soldiers and ex-soldiers started coming to his house asking for him to repay the [Uncle A] debts because [Uncle A] assisted the applicant with his [Business 1], and that [Uncle A] also asked the applicant to help him with covering these debts. I note that the applicant travelled to [Country 1] in 2012 and visited Australia on three separate occasions between October 2016 and April 2018. There is no indication that he was fearful of returning to Fiji or that he made any effort to remain in Australia during any of his prior visits. This is not withstanding that the reporting before me indicates that allegations of business misconduct were made against [Uncle A] as early as 2004. I consider his decision to repeatedly return to Fiji up until April 2018 supports a finding that he was not fearful of harm in Fiji at that time for any reason, including for any reason related to [Uncle A] and his business practices.
The applicant provided to the delegate a copy of a [Business 1] licence in support of his claim to have had his own [Business 1] from 2014 to 2016. On the basis of this license, I accept that the applicant did operate [Business 1]. I note the applicant travelled to [Country 1] in 2012 and visited Australia on three separate occasions between October 2016 and April 2018. There is no indication that he was fearful of returning to Fiji or that he made any effort to remain in Australia during any of his prior visits, despite his claim that from March 2017 onwards he was contacted by people waiting him to repay [Uncle A’s] debts. The applicant’s evidence is that he operated [Business 1] from 2014 until 2016, however it was not until after March 2017 when [Uncle A] went to prison that he claims he was first contacted by people wanting him to repay [Uncle A’s] debts. If [Uncle A’s] creditors had been unable to obtain their money from [Uncle A], and they perceived the applicant as being connected to [Uncle A] through [Business 1], I consider it quite unlikely they would wait around two and half years after he commenced [Business 1], and around 3 months after he stopped running that business, to contact him about the debts. The applicant’s narrative in respect of how [his Business 1] led to him being of adverse interest to [Uncle A’s] creditors and his repeated travel to and from Fiji during the period he claims he was fearful of these individuals was not persuasive. I do not accept that [Uncle A] lent the applicant money to establish [Business 1] or that [Business 1] ever caused the applicant to be imputed with any adverse profile.
The applicant claims that on 28 June 2018 he was threatened by four soldiers who stopped him and told him that [Officer C] is owed $20,000 by [Uncle A], and that if the money is not repaid they will kill the applicant. In response to this threat, the applicant asked the soldiers why they were asking him for the money if it was [Uncle A] who owed the debt, and told them [Officer C] should get the money from [Uncle A]. On 11 July 2018, three men came to the applicant’s home when he was not there and asked about both him and his sister. Then on 20 July 2018 he was assaulted and threatened by [Officer C] and another soldier when they came to his home. When [Officer C] started hitting him, the applicant asserts that he told the men he was a SODELPA supporter and an iTaukei patriot.
I have serious doubts in relation to the claimed altercation with [Officer C]. I asked the applicant why he mentioned the SODELPA political party when he was being beaten by someone who was owed money by his uncle. He replied it was because at the time citizens of Fiji were living in fear of the government. When I sought to clarify his response, he added that “I mentioned it in anger because they were taking people to be tortured at the military camps”. I also asked why he told [Officer C] that he was an iTaukei patriot, and he replied that because “the government in rule at the time was not concerned about indigenous people”. I pointed out that he had told me that this altercation arose because [Uncle A] owed [Officer C] money and asked what that had to do with the government at that time. The applicant replied that “I mentioned it in anger because we really wanted change in the government”. There is not suggestion that he has on any other occasion ever been politically active or publicly expressed either a desire to change the government or espoused pro-SODELPA views or pro-iTaukei views. The applicant’s evidence suggests that any dispute between [Uncle A] and [Officer C] was of a private nature, in that [Uncle A] owed [Officer C] money, and it is not claimed that the transaction was entered into by [Officer C] in any official capacity. Given this, his alleged response to being assaulted by one of this uncle’s creditors being to espouse these opinions because he wanted to change the government strikes me as quite unlikely. On the totality of the material before me, I do not accept that the incident with [Officer C] occurred.
When asked why the applicant decide to leave Fiji in July 2018, he indicated it was because at that time [Officer C] came to his home and assaulted and threatened him. He confirmed that it was only in July 2018 that he felt it was no longer safe to remain in Fiji and that he needed to leave. Given this, I asked him why he obtained a passport for his younger daughter in May 2018. He replied that obtaining passports in Fiji is a very slow process, but that at that time it did not occur to him to come to Australia and stay here. I pointed out that the applicant has family in Australia and has visited many times and asked why it did not occur to him to come to Australia given the problems in Fiji. He indicated it was because he had yet to have the bad experiences he had in July 2018. Given his various connections to, and seeming familiarity with, Australia, his responses that coming to Australia did not occur to him were not persuasive, and he did not address the substance of my question as to why he applied for a passport for his daughter when he did.
During the hearing the applicant indicated that he only learned of the possibility of applying for a protection visa after he came to Australia in July 2018. He said that he first saw information on this on the internet when he was in Australia, and that then a friend recommended that he go and talk to his current representative. He confirmed he did not know anything about the possibility of applying for a protection visa prior to leaving Fiji, and that at the time he left Fiji, he did not know how long he would stay in Australia for. I noted that the applicant has two siblings who have become Australian citizens after migrating here. He travelled to Australia to spend time with family on four separate occasions in the two years leading up to his departure from Fiji in July 2018, most recently from March to April in 2018. He expressly told me that he did not ask his siblings or anyone else whether there was a way for him to come to Australia and remain here prior to his arrival in July 2018. I consider it very doubtful that the applicant would bring his wife and two daughters to Australia in July 2018 without first making any inquiries into the possibility of the family obtaining protection or otherwise remaining here if they were departing Fiji in fear. Given two of his siblings have previously migrated from Fiji to Australia, I consider it unlikely that he would not ask them for guidance on how he might explore his options for remaining in Australia. His evidence on these matters was not persuasive and I do not regard it as credible.
I have serious doubts as to the veracity of the applicant’s claims. The applicant has offered an unpersuasive and largely uncorroborated account of the problems he attributes to his connection with [Uncle A]. During the hearing and in his visa application, the applicant has sought to add different dimensions to the issues arising from [Uncle A] not paying his business debts, including related to [Ms B’s] murder, anti-army and anti-government political views as well as indigenous and religious discrimination. When pressed for details on these matters and why he had a future fear of harm in Fiji in connection with them, the applicant provided vague and unconvincing responses, which ultimately circled back to his initial asserted fear of harm from [Uncle A’s] creditors. I asked the applicant why, given he has been outside of Fiji for over five years, he would still be at risk in that country were he to return there tomorrow. He confirmed that he only fears being harmed by people to whom [Uncle A] owes money. I then asked whether anyone has tried to contact the applicant or his family in connection with [Uncle A] since 2018, and he replied, “No”. The applicant’s considerable travel in and out of Fiji during the time of the claimed problems with [Uncle A’s] creditors was not supportive of his claim to fear being harmed by them. His vague account of his response to being assaulted by [Officer C] in connection with debts owed by [Uncle A] being for him to express certain political and pro-indigenous views was, in my view, not suggestive of him recounting a lived experienced. Furthermore, details about when and how he came to know about the possibility of applying for protection in Australia did not strike me as being at all likely, given the applicant’s connections and prior experiences here.
I have accepted that the applicant knows [Uncle A] and knew [Ms B], and that they are related to him, and that [Uncle A] was imprisoned for [Ms B’s] murder. I accept that [Uncle A] operated a [business] and that allegations of impropriety in that business have been made against [Uncle A]. However, I do not accept that the applicant did not know of the allegations against [Uncle A] until 2017 noting the considerable media reporting from 2004 onwards. I do not accept that the applicant ever lived with [Uncle A]. As have accepted that [Uncle A] and the applicant are related, I can accept that business acquaintances of [Uncle A] may have contacted the applicant and his family on occasion in order to reach [Uncle A]. However, I do not accept that the applicant or his sibling was ever threatened or harmed by anyone for any reason in connection with [Uncle A], including by any debtors or current or ex-soldiers who had business disputes with [Uncle A]. Notably, despite claiming that he and his family we variously threatened and on occasion assaulted by people to who [Uncle A] owed money from 2013 onwards, I note that the applicant travelled two and from Australia a number of times up until mid-2018, each time returning to the same address in Fiji. I did not consider that this conduct is supportive of his claim to fear harm for any reason at this time, and I do not accept that the applicant or any of his relatives were ever threatened or assaulted by any of [Uncle A’s] creditors, or that their property was damaged. I do not accept that he has ever been imputed with any adverse profile for any reason in Fiji related to his [Uncle A].
Actual and imputed political opinions
The applicant confirmed during the hearing a number of times that he only fears harm from the people to whom [Uncle A] owes money. I asked him about his claims in the visa application that he fears harm due to having actual and imputed political opinions and asked what these opinions were and who was imputing them upon him. He replied that there was a lot of discrimination under the last government, especially against the Christian Church and indigenous people and that their voices were not heard by the previous government. When I asked about the current situation in Fiji and whether he would have these concerns were he to return to Fiji tomorrow, he replied “No, not so much as it was before”. I noted that he has relatives in Fiji who are Christian and indigenous and asked if have they had any problems recently for those reasons in Fiji, to which he replied, “No”. I noted that the applicant did not mention indigenous or religious discrimination or disenfranchisement in his visa application or in the submissions to the Tribunal which he prepared with assistance from his representative, and that at the start of hearing he confirmed he had nothing to add to or change in his evidence. He replied to me that he did not think to put it in. His evidence on these matters was not at all compelling, noting there was a considerable delay in raising these matters, and he did not point to any corroborative material in support of these claims. The applicant confirmed during the hearing that he does not fear harm in the future from the current Fijian government.
In his visa application the applicant stated he holds “anti-government and/or anti-army opinions”. When I asked him what he meant by this, he indicated that at the time in Fiji there were many things the military were doing. I asked why he had an anti-army opinion if his father was in the army, and he said it was because, at the time, the military were torturing citizens at military camps. When I asked whether he still has an anti-military opinion, he replied, “Yes at this time but only because of [Officer C] and his associates”. For the reasons I have set out, I have not accepted that the incident with [Officer C] occurred. I asked the applicant whether there have been any changes in the Fijian government since he left the country; he replied that there have been. He indicated that he is in favour of the SODELPA party because they support free elections and are opposed to discrimination. He agreed that SOLDELPA are currently part of the government.[1] I am prepared to accept at face value that the applicant is in favour of SODELPA and that he was opposed to certain actions of the military under the previous government. There is no suggestion that he ever expressed these views in any forum or that he ever took any action in furtherance of them on any occasion. I noted there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022.[2] I asked whether this impacted his reasons for fearing harm in the future in Fiji. He reiterated that he only fears returning to Fiji because of people who [Uncle A] took money from not due to the current government.
[1] DFAT, ‘Fiji – Country information – Political Update’, 2 August 2023.
[2] DFAT, ‘Fiji – Country information – Political Update’, 2 August 2023.
I asked the applicant whether there have been any other changes or developments in Fiji since he left in 2018 that might be related to his reasons for fearing returning there. He referred to “some recent happenings in Fiji in the last two years which I got from the internet”. I asked what kind of happenings, and he said they related to police brutality and beating someone up, but they were not investigated. I noted that there was nothing in the material before the Tribunal to suggest the applicant feared being harmed by the Fijian police, nor was this raised in the submissions before the hearing or at the commencement or the hearing. I gave the applicant two weeks following the hearing to provide any further relevant information in support of his application that he wished to, including in respect of police brutality. No submissions or supporting material on this topic were submitted. There is no suggestion or indication that the applicant has ever been of any interest to the Fijian police force or that he may be in the future for any reason.
I noted that reporting from DFAT indicates the Fijian police are regarded as capable and impartial,[3] and asked whether there would be any reason they would be unable to assist the applicant with any difficulties in Fiji in the future. He replied that he has experienced what life is like in Fiji, and that things being presented in the media are not the reality of what is happening in Fiji. I asked whether he had ever tried to contact the police in regard to the problems with [Uncle A’s] creditors. He said he did not because at the time the military was in charge of the government, and they would not do anything about it. I asked whether this would be different now given the new government in Fiji. He indicated that the government has changed, but his main reason for fearing harm in Fiji is the people [Uncle A] owes money to. When I clarified that my question was whether the police could help him to be safe in the future given the change in government, the applicant replied that he does not have any faith in the police force. At the end of the hearing, the representative stated that the police cannot protect the applicant from the army because the army dominated the police, and in Fiji the police are afraid of the army. No corroborative material was provided in support of this contention. At the outset of the hearing, I cautioned that a representative’s role is not to give evidence on the applicant’s behalf as they do not appear before the Tribunal as a witness.
[3] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022.
Are the applicants refugees per s5H of the Act?
The applicant indicated during the hearing that the only reason he fears being harmed in Fiji is due to being implicated in [Uncle A’s] business dealings. I have not accepted that he has ever been threatened on harmed in the past for any reason related to [Uncle A]. I have not accepted that he has ever been of any adverse interest for any reason related to [Uncle A’s] business dealings, nor am I satisfied he will be in the foreseeable future. I am not satisfied that the applicant faces a real chance of any harm in the foreseeable future in Fiji for any reason relating to [Uncle A] and his business practices.
The applicant has presented claims to fear harm due to holding anti-government and anti-army actual and imputed political opinions, including those arising out of religious and indigenous discrimination under the previous government and police brutality under the current government. These claims are quite vague. I afford considerable weight to his repeated assertions to me when I sought to explore these matters with him that he only fears harm on return to Fijian from [Uncle A’s] creditors and not on any other bases. Notably, the applicant undertook considerable overseas travel between 2012 and 2018 on at least five different occasions while the previous government was in power, including visiting Australia and [Country 1]. His repeated return to Fiji during this time is not in my view supportive of him fearing harm in Fiji for any reason at all at that time including in connection with any political opinion or due to any religious or ethnic discrimination. When I sought further details about what discrimination or harm the applicant or his family have faced in the past for these reasons, and what information he has about any current or future fear of discrimination or harm on these bases, he simply linked these matters to the previous Fijian government and told me he does not have any problems with the current government. He confirmed that his relatives in Fiji who are indigenous and Christian have not had any problems in Fiji recently for these reasons. There is also no suggestion or indication that the applicant has ever been of any interest to the Fijian police force or that he may be in the future for any reason, and I do not accept that he is of interest to them or that he may become so in the foreseeable future. The applicant claims, and I have accepted, that he is in favour of a political party which is currently part of the ruling coalition in Fiji. Given his own indication that he doesn’t have problems with the current government and that he only fears being harmed by [Uncle A’s] creditors due to [Uncle A’s] business dealings, I am not satisfied that the applicant currently holds or may be imputed with any political opinions that may cause him to be of adverse interest in Fiji in the foreseeable future for any reason, or that there is a real chance of him experiencing religious or ethnic discrimination, or being a victim of police brutality in Fiji in the foreseeable future.

I am not satisfied that the applicant faces a real chance of any harm in the foreseeable future in Fiji for any reason.
The applicant does not have a well-founded fear of persecution per s 5J(1), and therefore does not meet the definition of refugee in s 5H.
The second, third and fourth named applicants have not advanced any of their own protection claims. On the material before me, I am not satisfied that any of them have a well-founded fear of persecution per s 5J(1), and therefore none of them meet the definition of refugee in s 5H.
Are the applicants entitled to complementary protection?
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm on removal to the receiving country. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention,[4] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b).[5]
[4] MIAC v SZQRB (2013) 210 FCR 505.
[5] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Caseload Legacy) Bill 2014 (Cth).
For the reasons set out above, I have found that there is not a real chance of serious harm for any of the applicants for any reason were they to return to Fiji. For the same reasons, I am not satisfied that there is a real risk of significant harm as relevantly defined.
I am not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji there is a real risk of significant harm to any of them.
Conclusion
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Michael Simmons
Member

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

[2024] AATA 1226

9 January 2024

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