1904765 (Refugee)

1904765 (Refugee) [2024] AATA 899 (15 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Arjun Sirohi
CASE NUMBER:  1904765
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Mark Oakman
DATE:15 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2024 at 11:56am
CATCHWORDS
REFUGEE – protection visa – Fiji – fear harm from uncle and his associates – credibility concerns – internal inconsistencies – late claims not raised earlier – non-genuine documents – employment situation and economic conditions – capacity to subsist – 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 Home Affairs on 4 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 15 August 2018. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 27 November 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of her Fijian passport. She stated in her protection visa application that she was a citizen of Fiji and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Fiji. Fiji is the receiving country for the purpose of this assessment.
Migration history
The applicant was granted a visitor visa (subclass 600) on 18 October 2016. She made multiple trips to and from Fiji to Australia [between] October 2016 [and] July 2018, arriving in Australia for the last time on [date] July 2018. She lodged an application for a protection visa on 15 August 2018.
Background
According to information given by the applicant in her application and at the hearing, she is [age] years old and was born in Suva, Fiji. For most of her life in Fiji she lived at the same stated address in [Address 1]. She has never been married. Her father is deceased and her mother lives in Fiji in the family home in [Address 1], with a cousin. She has [number] brothers and a sister, who all live in Australia. She is Fijian and Christian. She speaks, reads, and writes Fijian and speaks and reads English.
She attended school in Fiji (from 1998 to 2010), completing high school. She did a [specified] course in Fiji (June-July 2013). In Fiji she worked as a [Occupation 1] (2/2015-10/2015) and a [Occupation 2] (10/2015-12/2016). She has worked in Australia in [Occupation 3] (for six months in 2020), in a [specified] factory (2020-2022) and for the last seven months she has worked as a [Occupation 4]. In Australia she has obtained an [Qualification 1] certificate and a [Qualification 2] certificate III (2021).
Evidence before the Department
In the protection visa application dated 15 August 2018, the applicant made the following claims in a statement of the same date, in summary:
·In 2012 her uncle, ‘Uncle A’, moved into their family home with his wife as they had nowhere else to go. He would reminisce and tell stories about her dad including good and bad things they did and plans they came up with about the government and political parties.
·Later, she thinks in 2013, he told her mum about his work and later the family came to know as well. He ran named recruitment companies for ex-military men to work in war zones (Iraq, Afghanistan etc). Uncle A had his office somewhere they didn’t know. Initially he didn’t mention his work, but later explained it when groups of highly trained men started visiting their home regularly. They were wearing military uniforms and carried guns. They were suspicious and scared of the men. Uncle A said they were his bodyguards, and he provides work for them overseas. They were scared about their uncle’s activities.
·Sometime in 2013 her mum told Uncle A to leave. Uncle A assured her mum he won’t bring those men in the house and won’t bring his business home. Uncle A presents well as a family man with no dramas and violence, but they learnt later he spent 2 years in prison and was rescued by a member of the Iraqi army. As a result, he became close to that group and now worked for them supplying highly trained men.
·Uncle A also employed some of their cousins in the business to protect him from the Government and look at those who would be informants against him and his whereabouts. She feared Uncle A and was scared to mention him to people who asked after him.
·Later in 2013 she was interrogated by few groups of men that slapped her across the face and pushed her to the ground. They asked her about her uncle. She couldn’t go to the police as they threatened to kill her if she did. They have followed her from work and verbally abused her constantly. She fears for her life, her brother and her mum as she can’t protect herself or them.
·After this incident she was interrogated and assaulted by her cousin. He punched her across the face and beat her helpless body as she lay on the ground. He said “where is Uncle and is he home”. After the assault her mum took her to the police station to report the assault. She was weak and bruised, and scared to go but her mum took her. Initially police did nothing but take her statement and note down her cousin should be 10ms away from her. In 2013 they filed the report and placed an AVO against him as he assaulted her twice. She fled to her family village, but he followed her around that place too. He warned everyone that he was not afraid of the police and would make history repeat itself. Her cousin had been in and out of prison, has no fear of the law and which makes her feel her life is in more danger and she can’t trust the police to protect her.
·Her uncle is a threat to her and her family, and she’s terrified for the things her uncle is able to do with so many connections not only overseas but with a lot of highly trained soldiers, soldiers that can overthrow a government.
·All her family supports the Sodelpa Political Party. Her uncle issued a proposal to the Government to bring a container full of ammunition to supply his workers which was turned down. His hatred and negative actions towards the Government will not stop for anything or anyone, including close relatives, and his training and mind set is to strive to take over power, and he won’t let anyone stop him even his own wife.
·[In] March 2017 her uncle killed his wife, her aunt. In 2017 the aunt decided to move out of their house as she was scared of Government soldiers coming to the house asking for him, she went and lived on the islands. Uncle A heard her aunt went and had informed what he was planning to do against the Government. He was furious and looked for her everywhere. He heard she was living in their house after a few months, and he came to the house and interrogated everyone looking for aunty. They were terrified so her mum asked everyone to find somewhere safe to hide as Uncle A knew they were hiding her. She came to [Town 1] to stay with relatives before she caught a plan back to Australia [in] March 2017.
·Her aunt ran from home and hid with neighbours until her uncle found her and stabbed her in neck to death in broad daylight. They did what they could to help and hide her aunt, but nothing could protect her aunt not even the police. She was heartbroken and terrified, couldn’t eat or sleep, and nothing could console her, she lost her best friend and couldn’t do anything to help her.
·Her uncle said to everyone at home “if anyone does try to do the same thing as ‘Aunt B’ did I would execute anyone that come my way”. He is now facing 15 years in jail.
·Though they thought they would be safe, Uncle A was still able to have contact with outside world, still contacting them through his associates. Since he ran the company of employment overseas, he had soldiers pay him fees in advance to work overseas. These soldiers were starting to doubt his work and have visited home regularly, more than before, threatening them with the thought they may have used their money. Even until today Uncle A has been offering money to his supporters to act for him. As in the past he tried to use money in a manipulative way to stop them from giving information to the police.
·Life in Fiji is very difficult, with wages not enough to suit the need of a family. She had a visa to travel to Australia.
·While in Australia in June 2017 a few men came to her mum’s place and asked for her; for some reason they were suspicious of her travelling overseas and thought she might be giving information to the police. Her mum called her several times and warned her not to come back as her life was in danger. Her brother has now confirmed that it is dangerous to go back, saying mum had sent him to make sure she was not going back, as mum wanted them safe in Australia.
·She is very paranoid as doesn’t know who to go to for help or to trust. She is scared to go back to Fiji and to face this horror that she has gone through these passing years. The only reason she comes and goes is because she goes to check on her mother, to see if she is doing ok, is healthy. She is scared for herself, her mum and her family in Fiji. Her mum unfortunately can’t come to them as she has to look after her grandad who has a serious condition.
·She applied for a protection visa as Australia is a safe country and she feels safe whenever she visits.
The applicant was not invited to an interview with the delegate.
Evidence before the Tribunal
The applicant lodged her application for review with the Tribunal on 1 March 2019. Her application was accompanied by submissions from her legal representatives, dated 1 March 2019 that stated, in summary:
·The applicant meets criteria for the grant of a protection visa.
·The delegate erred in making a finding she was not a refugee.
·The delegate erred in law and in facts to make a finding she does not face a real chance of being persecuted for reporting her uncle’s findings to the Government of Fiji.
·The delegate erred in law and in facts by finding no substantial grounds to believe she will face substantial harm if removed to Fiji.
·That she is person in respect of whom Australia has protection obligations.
In an email dated 23 November 2023, the applicant’s legal representatives provided further material to the Tribunal in support of her application as follows:
·Letter of support dated 20 November 2023 from her sister, ‘Ms C’, in Australia.
·Letter dated 22 November 2023 from her mother, ‘Mrs D’, in Fiji.
·Letter dated 9 November 2023 from a neighbour and work colleague of Mrs D, ‘Mr E’, in Fiji.
·Police report / certificate from Fiji dated [date] November 2023.
·Police report / certificate from Fiji dated [date] November 2023.
At the commencement of the hearing on 27 November 2023, the applicant’s legal representatives provided further material to the Tribunal in support of her application as follows:
·Submissions on behalf of the applicant dated 27 November 2023.
·Two photographs.
·[Media 1] media article headed ‘[Title 1]’, dated [in] 2018.
The submissions dated 27 November 2023 stated, in summary:
·The applicant fears harm, directly or indirectly, from Uncle A. Uncle A is ex-military. In about 1995 he left the army and started working in private security. He later recruited Fijians, usually ex-service men, for contract work overseas. Uncle A and the men he worked with were highly trained combat ready men.
·In 2012 Uncle A and his family started living in the applicant’s home. Armed men regularly visited the house. Some of the men worked for Uncle A and some were looking for Uncle A seeking money and his whereabouts.
·In 2012, Uncle A came to her house with his de facto partner, Aunt B. Aunt B was only [age] and Uncle A was over [age]. Aunt B soon became the applicant’s friend and confidant.
·The applicant’s cousin, ‘Cousin F’, worked for Uncle A. In 2013, Cousin F assaulted the applicant on two occasions on his suspicion she had disclosed Uncle A’s whereabouts to others and/or the Government. After the first incident she complained to the police who cautioned him and told him to stay 10 metres away from her. Soon after, Cousin F assaulted her again and told her he was not afraid of the police. Cousin F was not prosecuted for the offence. Although an AVO was issued, Cousin F regularly visited the applicant’s home, which caused her to fear for her safety.
·In 2017 Uncle A was having issues with the Government. He suspected Aunt B was talking to people in the Government, who were tracking his movements. He threatened the applicant’s mother on a few occasions not to provide refuge to Aunt B and their daughter.
·In 2017 Cousin F once again assaulted the applicant on his suspicion she was communicating with Government officials, Aunt B, to help the Government and other people searching for Uncle A. The applicant reported the matter to the police and sought protection. However, the police did not take any action to protect her.
·[In] March 2017 the applicant’s mother warned Aunt B to go into hiding and live somewhere else as Uncle A was coming looking for her. She went to the applicant’s neighbour’s home. Uncle A found her there and murdered her. Later the applicant saw Aunt B’s corpse at her neighbour’s home. After the murder, the applicant feared for her life and came to Australia to live with her siblings and applied for a protection visa.
·Uncle A, albeit currently in jail, is still an influential person. His men, including Cousin F, regularly visit the applicant’s mother and enquire about the applicant’s whereabouts. They suspect the applicant had informed the authorities and other people about Uncle A’s business and his involvement in the murder of his partner.
·The applicant asserts that because Fiji is a small nation, Uncle A and Cousin F are influential in the area, it is not possible for her to relocate to any other part of Fiji.
The applicant appeared before the Tribunal in person on 27 November 2023 to give evidence and present arguments. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
At the conclusion of the hearing the applicant’s legal representative indicated there was nothing further on behalf of the applicant. As at the date of this decision no further material from the applicant has been received by the Tribunal.
Analysis, reasons, and findings
The Tribunal did not find the applicant’s evidence credible. In coming to this conclusion, it had regard to internal inconsistencies within the applicant’s evidence, its overall impression that she was not speaking from her own lived experience at the hearing, as well other reasons detailed below.
The applicant was inconsistent about both her fear of harm if returned to Fiji and her past incidents of harm in Fiji:
·In both her 15 August 2018 statement and her 27 November 2023 submissions her substantive concerns included fear of her Uncle A, including his murder of Aunt B. However, when discussing her fears at the hearing, she was concerned to return because she was previously assaulted by her Cousin F and other people. I do not consider it credible that only after she had discussed these fears at the hearing (including confirming they were her only fears), and the Tribunal raised concerns about her evidence, that she said she had fears because of Uncle A and the murder of Aunt B. When asked at the hearing why she didn’t mention these fears, she said she forgot. I do not consider it credible that, if such fears were true, she would have forgot to mention them when discussing her fears at the hearing. I also do not consider it credible that she forgot to mention of the murder of Aunt B, until raised by the Tribunal, given she described Aunt B as her best friend (15 August 2018 statement) and her friend and confidant (27 November 2023 submissions), as well as attributing her move to Australia and application for a protection visa to her fear following the murder incident (27 November 2023 submission). Her failure to mention these fears at the hearing, until raised by the Tribunal, reflect very poorly on the credibility of her claim to fear harm from Uncle A and his associates and her claimed close relationship with Aunt B.
·At the hearing she discussed her fears in relation to Cousin F and said he assaulted her in 2013 and in June 2017. I do not consider it credible that she said in her 15 August 2018 statement that she was assaulted twice by Cousin F in 2013 but did not mention anything about being assaulted by him in 2017. Although the assault by Cousin F in 2017 was mentioned in the 27 November 2023 submissions, it was said to have been because of his suspicions she had been communicating with the authorities, with Aunt B, to help the Government and others searching for Uncle A. However, at the hearing she said the 2017 assault was because Cousin F was asking her about money from Uncle A. Similarly, in the 27 November 2023 submissions she said men who worked for Uncle A regularly visit her mother to ask her whereabouts and that they suspected she had informed the authorities and others about Uncle A’s business and involvement in Aunt B’s murder. However, at the hearing she said men continued to visit her mother looking for money they are owed by Uncle A, asking where the applicant is and saying she has been out of the country all this time and she must know where the money is or used it to pay for her trips. This change in her evidence about the motive for the claimed 2017 assault, and the reason men continue to visit her mother from the 27 November 2023 submissions to the 27 November 2023 hearing, is not credible. I also do not consider either explanation given for the assault by Cousin F in 2017 to be credible. It could not be because of any concern about her speaking to the authorities and Aunt B to help the search for Uncle A, as by June 2017 Aunt B was already dead and Uncle A in custody.[1] Nor is it credible that Cousin F would suspect the applicant of having money from Uncle A as the applicant never worked for Uncle A, and Cousin F, who worked for him would be aware that was the case. The applicant confirmed at the hearing that she had never received money from Uncle A, although her brother did obtain a loan from him. Her explanation that Cousin F thought she had some of Uncle A’s money because of her relationship with Aunt B, is also not credible given the concerns expressed above about her claimed relationship with Aunt B. I asked the applicant at the hearing why men would continue to visit her mother, over the course of 5 years, to ask unsuccessfully for money. She made no comment. I also asked her at the hearing why, as Uncle A was sentenced to 18 years jail in 2018, would any of his men still hold concerns as he was no longer running his business. She made no comment. Given the passage of time since the applicant last left Fiji, and since Uncle A was remanded in custody and then convicted and sentenced, I do not consider it credible that any men would have continued to ask after the applicant, whether because of suspicions about her discussing Uncle A’s business or because they were owed money by Uncle A.
·The applicant said in her 15 August 2018 statement, in the 27 November 2023 submissions and at the hearing that Aunt B was killed by Uncle A because he thought she had been speaking to the authorities / police about his plans and business. I do not consider this to be credible given the media article[2] she provided to the Tribunal, and which quotes from the court findings, indicates he killed her because he was jealous about her affair with another man, which commenced in 2016 after which Aunt B left Uncle A. When the Tribunal raised its concern with the applicant at the hearing about the media report on the court decision indicating Aunt B was killed because she was having an affair, she said, no, Aunt B didn’t have an affair. I prefer and accept the reason given in the media article for the killing, reported from court findings, in the matter over the assertion of the applicant. The applicant’s insistence that Aunt B was killed for the reason she claims, and which would otherwise support some of her protection claims, and not because of an affair, reflects poorly on her credibility.
[1] See media article provided by applicant - [Media 1] media article headed ‘[Title 1]’, dated [in] 2018 – Aunt B was killed on [date] March 2017 and Uncle was remanded in custody from [date] March 2017.
[2] [Media 1] media article headed ‘[Title 1]’, dated [in] 2018.

The applicant provided supporting letters from her sister, Ms C and her mother, Mrs D and a neighbour and colleague of her mother’s, Mr E. Ms C and Mrs D, as the sister and mother of the applicant are not disinterested in the outcome of the applicant’s protection visa application and this affects the weight I would otherwise give their corroborating statements. Additionally, Mr E who is otherwise at arms-length from the applicant and her claims and has been a neighbour and colleague of Mrs D for 28 years, only confirms that Uncle A lived at their home from 2012 and that men sometimes gathered outside the house waiting for Uncle A and he on occasion heard them demand money. I consider it significant that Mr E has not mentioned anything about assaults on the applicant, that the men visiting their house were armed, or men continuing to visit Mrs C’s home either looking for the applicant or to demand money owed to them by Uncle A. I consider the information from Mr E to be reliable, given he is not personally interested in the outcome of the applicant’s protection visa outcome. I do not consider Ms C’s or Mrs D’s information reliable, given their relationship with the applicant, and it does not overcome the problems I have identified above with the applicant’s evidence. The applicant provided two photos, one showing the applicant and Aunt B eating at a McDonald’s and the other showing Mrs D with Aunt B and her baby. Those photos confirm that the applicant and her family knew Aunt B, but I do not consider they provide any support for the applicant’s claims about the nature of her relationship (best friends etc) between the applicant and Aunt B. The applicant also provided two certificates from an officer at [named] Police Station, dated [in] November 2023 and [in] November 2023. Those certificates confirm that the applicant reported assaults against her by Cousin F on [date] November 2013 and [date] June 2017. I have concerns about those certificates. The certificates give reference numbers, but both are in the xx/11/2023 format, and neither gives reference numbers from the time of the original reports. The applicant claimed there were two assaults by Cousin F in 2013, one of which resulted in a 10m exclusion and one in an AVO, but there is only one 2013 certificate and there is no mention of a 10m exclusion or of an AVO in that certificate. Nor do I consider it credible, given the documents appear to have been obtained at the applicant’s request, that the applicant did not provide this or other documentary evidence of her claimed reports to the police in either the protection visa application or to the Department during the protection visa process. I also consider it more than coincidental, and less than credible, that the applicant did not make any mention of a June 2017 assault by Cousin F until after she had obtained the police certificate dated [in] November 2023. Given these issues and noting country information that although document fraud is not considered widespread, counterfeit or fraudulently obtained documents are possible to obtain,[3] I do not accept the certificates are genuine.
[3] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022.
The issues identified above in relation to her evidence go beyond minor errors and discrepancies that could be attributed to factors such as recall problems, cultural communication issues, and a lack of cohesive narration due to trauma or the passage of time. Overall, I am not satisfied the applicant has provided a truthful account of events both before and after she left Fiji to live in Australia. In particular, I do not accept that:
·The applicant was assaulted by men who were looking for Uncle A in 2013 or that the men who visited their home were armed.
·The applicant was assaulted by Cousin F in 2013 or 2017, or that she was threatened or harassed by Cousin F before or after she left Fiji for Australia.
·The reason Uncle A killed Aunt B was because of concerns that she had spoken to the authorities / police about his business or plans. Nor that Uncle A or anyone who worked for him, including Cousin F, had concerns that, or was adversely interested in the applicant because, she was suspected of providing information to the authorities, the police, or anyone else about Uncle A and his business, his whereabouts or for any other reason.
·The applicant was of adverse interest to anyone in Fiji at the time she left to come and live in Australia.
·Anyone, including Cousin F, have approached the applicant’s mother in Fiji, after she came to live in Australia, to ask after her whereabouts, make threats, ask for money or otherwise have shown any adverse interest in the applicant. Nor that the applicant’s family in Fiji faces a real chance of harm from Uncle A, his associates, including Cousin F, his previous clients, or for any other reason.
·The applicant would be of adverse interest to anyone if she were to return to Fiji, now or in the reasonably foreseeable future.
However, based on the media report provided by the applicant, and the information from Mr E, I accept that Uncle A has a military background and started private security work including recruiting ex-military men for security work overseas; Uncle A and Aunt B moved into the applicant’s mother’s house in 2012; men came to the house from time to time after 2012 to ask for Uncle A; that Aunt B left Uncle A in 2016 after she started an affair and Uncle A found out about it; that Aunt B was living in [Address 1] when she was killed by Uncle A [in] March 2017; that Uncle A killed Aunt A because he was jealous of her affair; and that Uncle A was in remand custody from the date of the killing and on 18 May 2018 was subsequently jailed for 18 years. I also accept that the applicant and her family may have found the visits to their home by men looking for Uncle A disruptive and occasionally felt harassed by those visits. Given the murder of Aunt B and the arrest of Uncle A would’ve been well known to anyone associated with Uncle A, I do not accept those visits would have continued for more than a short period after Uncle A was arrested and jailed for the murder of Aunt B.
In her protection visa application, the applicant also raised her concern that life in Fiji is very difficult, with wages not enough to suit the need of a family.
Fiji is defined by the World Bank as an upper-middle income country. Tourism dominates, representing 40 per cent of the pre-COVID economy.[4] The economy contracted significantly during the COVID-19 pandemic, shrinking 17 per cent in 2020, but has started to recover, and GDP growth rates are expected to exceed pre-pandemic levels in 2024.[5] In 2022, the inflation rate was 4.5 per cent, up from 0.2 per cent in 2021.[6] Unemployment in the formal workforce remains stable. In 2022, the overall unemployment rate was 4.3 per cent (down from a peak of 4.9 per cent in 2021).[7] Most Fijians are employed in the informal sector, particularly in the tourism, agriculture and aquaculture industries. Pre-COVID estimates of those employed in the informal sector range between 50 and 66 per cent. However, this number is believed to have grown during the pandemic, with many Fijians moving from employment in the formal tourism industry, to informal jobs in sectors such as farming.[8] The minimum wage was FDJ 2.68 ($1.75 AUD) per hour in May 2022, which typically does not provide a decent standard of living for a worker and their family.[9] The latest official statistics estimate that in 2019-2020, 24 per cent of Fijians lived under the Basic Needs Poverty Line of FDJ 41.19 ($27 AUD) per adult per week.[10] Poverty rates vary significantly between rural and urban areas, with 36.5 per cent of rural Fijians living below the poverty line in 2019-2020, compared to 14 per cent in urban locations.[11] While official figures are not available, COVID-19 and its significant impact on the local tourism sector in particular, is expected to have exacerbated poverty rates.[12] Subsistence farming and kin-based wealth distribution leads to lower rates of extreme poverty than might otherwise be expected.[13]
[4] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022.
[5] ‘Fiji’s economy in an election year’, DevPolicy Blog, 5 July 2022; ‘GDP Growth (annual %) – Fiji’, The World Bank, undated accessed 9 June 2023; and ‘COVID-19’s impact on Fiji’, The Borgen Project, 26 March 2023,
[6] ‘Inflation, consumer prices’, The World Bank, undated, accessed 9 June 2023,
[7] ‘Unemployment, total (% of total labor force)’, The World Bank, undated, accessed 9 June 2023,
[8] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022; and ‘Informal sector growth’, The Fiji Times, 6 March 2021.
[9] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022; and US Department of State, ‘Country Reports on Human Rights Practices for 2022 - Fiji', 20 March 2023.
[10] ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’, The World Bank, undated, accessed 9 June 2023; ‘2019-20 Household Income and Expenditure Survey', Fiji Bureau of Statistics, August 2021; ‘FY2021-FY2024 Country Partnership Framework for Republic of Fiji', World Bank Group, 17 December 2020; and ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’, The World Bank, undated, accessed 9 June 2023,
[11] World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’, The World Bank, undated, accessed 9 June 2023.
[12] ‘The Impact of COVD-19 on Poverty in Fiji’, The Borgen Project, 14 September 2022.
[13] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022.
Based on the country information, I accept that if the applicant returns to Fiji, she may face difficulty in initially finding employment, and that any such employment may be low paid. As her mother still lives in the family home where the applicant lived for most of her life in Fiji, she is highly likely to return to the family home [at Address 1], if she returns to Fiji. The applicant has a range of work experience, in both Fiji and in Australia, including [Occupation 1], [Occupation 3], factory worker and [Occupation 4]. She speaks, reads, and writes Fijian, as well as speaking and reading English. She is not uneducated. She has shown herself to be resilient and resourceful by adapting to life in Australia. While I accept she may face some difficulty in initially obtaining a job, and the job may be low paid, I am not satisfied on the evidence that the situation is such that her prospects are so limited that there is a real chance that she would be denied the capacity to earn a livelihood of any kind or experience hardship to the extent that would threaten her capacity to subsist or otherwise lead to serious harm. Further, the country information indicates the employment situation, and economic conditions, in Fiji impact the population and the country generally. As such, I do not accept that any difficulties or hardship the applicant may face in obtaining employment, and the pay she receives for such employment, in Fiji would amount to persecution for any s 5J reason under the Act.
Considering the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Fiji now or in the foreseeable future, she faces a real chance of harm for any reason. The applicant does not face a real chance of persecution, if returned to Fiji, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The country information indicates that the employment situation and economic conditions in Fiji impact the country in general, rather than from an act or omission intended to cause pain or suffering that could reasonably be regarded as cruel or inhuman, severe pain or suffering or extreme humiliation as required by the relevant definitions of significant harm. I find on the evidence that any difficulties or hardship the applicant may experience in obtaining employment, and any low wages she may receive in such employment, does not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act. For the same reasons I find that there is not a real risk of the applicant being arbitrarily deprived of her life or the death penalty being carried out.
For the reasons set out above I have found that the applicant does not otherwise face a real chance of harm in relation to her claims or profile. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[14] she also does not face a real risk of any harm in Fiji. I am not satisfied that the applicant faces a real risk of significant harm in Fiji.
[14] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Oakman
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 899

15 January 2024

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