1904776 (Refugee)

1904776 (Refugee) [2024] AATA 3511 (24 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904776
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Ben Lumsdaine
DATE:24 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 May 2024 at 8:00am

CATCHWORDS
REFUGEE – protection visa – Fiji – low-level participant in military mutiny – court martialled, imprisoned, assaulted and monitored after release – passage of time – some ongoing stigma, but no further harm – continued work in related work sectors in home country and another country, and children’s education – country information – recent change of government – pardoning of mutiny participants, including leaders – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 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 1 November 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant sought review of this decision on 1 March 2019 and provided a copy of the delegate’s decision with his review application.
The applicant appeared before the Tribunal on 13 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is a [Age]-year-old man from Fiji. He arrived in Australia with a tourist visa (Class FA, Subclass 600) [in] August 2018, travelling on a valid Fijian passport issued [in] 2009. In his protection visa application, he stated that he came from near [Town] and has lived here most of his life. He completed high school and had worked in the Fijian military and a variety of different roles in Fiji and overseas.
Evidence before the Department of Home Affairs
The applicant applied for a protection visa on 1 November 2018. In his application for a Protection Visa, the applicant indicated that he had not been assisted in preparing the application form.
In his application for a protection visa, the applicant made the following claims:
·     He had worked as a member of the Republic of Fiji Military Forces (RFMF) and had been based in Northern Fiji. In 2000, he was involved in the civil unrest and that later developed into the military coup of 2006 for which he was blamed.
·     He was viewed with suspicion despite being already serving [Number] years in prison for his role in a mutiny in 2000. His movements were being monitored and he faced stigma for his role in the civil unrest of 2000.
·     He could not seek state protection as the Fiji military and police force work together and the judiciary is compromised.
·     He cannot relocate safely to another place in Fiji as it is a small country and to do so would be useless.
· He also provided numerous documents, including a letter from [Military rank A] confirming his role in a mutiny at [Barracks 1] in [Town] in [2000]. Other documents provided included a CV, a statutory declaration dated 27 October 2018, reference letters from past employers, certificates, his birth certificate and certificates of three of his [children], documents relating to his [children’s] education, a copy of his driver’s licence and copies of ID cards from his previous work, his marriage certificate and a copy of his passport.
On 13 December 2018, the applicant was sent a letter from the Department of Home Affairs (‘the Department’) acknowledging they had received a valid Protection visa application and informing the applicant that an appointment had been made for him to provide biometrics information on 16 January 2019, which he attended.
The acknowledgment letters indicated that a decision may be made on the basis of the information provided without an opportunity for the applicant to present any more information at an interview. The applicant was not invited to an interview before the delegate.
On 5 February 2019, a delegate of the Minister for Home Affairs refused the applicant’s Protection Visa application. The delegate found that the applicant was not a member of the Counter Revolutionary Warfare Unit (CRWU) or involved in the 2000 coup and mutiny. The delegate found that he did not leave Fiji for [Country 1] to escape harassment or that he had suffered any harm since the mutiny in 2000. The delegate found that while the applicant may harbour anti-government sentiment, he was not of a profile that would make him of interest to the Fijian government or military. The delegate also found that the country information did not indicate that the human rights situation in Fiji was such that the applicant would be at risk of harm if he returned there. The delegate was ultimately not satisfied that the applicant would face a real chance of serious harm if he returned to Fiji. The delegate was also not satisfied that there were substantial grounds for believing the applicant would face a real risk of significant harm as a necessary and foreseeable consequence of returning to Fiji. Consequently, the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations.
The applicant was notified of the delegate’s decision by email sent to the email address provided in the applicant’s Protection Visa application.
Evidence before the Tribunal
On 1 March 2019, the applicant applied for review of the delegate’s decision to refuse his Protection Visa application. The application for review included a copy of notification of the delegate’s decision to refuse his application and the reasons for the decision.
The applicant also provided a number of documents, including:
·A certified copy of a letter from [Military rank A] confirming his role in a mutiny at [Barracks 1] in [Town] in [2000] previously provided to the Department.
·A certified copy of a letter from [Mr B], former [Public official] in Fiji, dated 4 September 2016, which confirmed the applicant’s role in the 2000 mutiny and subsequent imprisonment.
·A certified copy of a letter from [Dr C] [Church official] from the [Organisation] of the [Church] in Australia, dated 4 December 2019. This letter confirmed the applicant’s role in the mutiny.
·A certified copy of a letter from [Mr D] Mutineer commander in the 2000 crisis, dated 27 April 2019, which confirms that the applicant was one of [the] soldiers in a mutiny at [Barracks 1] at [Town] on [in] 2000 and was later sentenced to prison. The letter indicated that their names were on a blacklist and they had restricted freedom of movement, association, education, training and employment opportunities.
·Various Training certificates obtained in Australia.
·A reference from [Pastor E] regarding the applicant’s character and studies at TAFE NSW.
·A document entitled ‘[Summary of Evidence]’. This document was dated [Date] and listed [the applicant] as one of [the] people charged and to be tried by General Court Martial for their role in a mutiny at [Barracks 1], [Town] [in 2000].
·Links to Facebook, which related to:
oA link to the Radio New Zealand homepage.
oA post of a Radio New Zealand article.[1]
oA post by Aman Ravindra-Singh dated 14 February 2024 with a photograph with the caption ‘Military dismissing human rights abuse allegations an ‘insult to victims’ – Fiji human rights lawyer’.
oA post by Aman Ravindra-Singh dated 5 February 2024 in relation to a Fiji Times article entitled “Army stands firm”. The post accused the Army Commander Brigadier General Kalouniwai of covering up acts committed by the military, including torture and brutality by Colonel Penioni (Ben) Naliva.
oA post by Aman Ravindra-Singh dated 1 February 2024 in relation to an article in The Australian entitled, “Accused torturer to command ADF troops” in reference to Penioni Naliva.
[1] ‘Fiji lawyer willing to offer ‘hard evidence’ to support abuse allegations’, Radio NZ, 14 February 2024, available at: accessed on 23 May 2024
The Tribunal contacted the applicant on 24 January 2024 and sent a ‘Pre-Hearing information form’ to inquire about his availability to attend a Hearing in relation to his application for review of the decision to refuse his Protection Visa application. On 27 January 2024, the applicant responded with a completed form indicating that he wanted to attend a Hearing to provide further evidence and present arguments in relation to his case.
On 2 February 2024, the applicant was sent an invitation to a Hearing before the Tribunal on 13 March 2024. On 25 February 2024, the applicant returned by email a Response to Hearing Invitation form requesting an Indigenous Fijian interpreter be available at the hearing and one witness to provide evidence. The witness was identified as his ‘brother’ and he was to give evidence on the RFMF’s interventions in Fijian politics and government affairs since the late ‘80s/Post-1987 First Military Coup.
On 13 March 2024, the applicant attended a hearing in-person before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The witness identified by the applicant did not attend the hearing. The Tribunal decided not to call the witness as it did not believe it would be useful to take further evidence from the witness on the RFMF’s interventions in Fijian politics and government affairs since the late ‘80s/Post-1987 First Military Coup as there was no indication the witness was an expert, general evidence about these topics was already available to the Tribunal and the applicant had had the opportunity to provide further evidence. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.
On 4 April 2024, the Tribunal sent the applicant a letter providing the applicant an opportunity to comment under s 424A of the Act (424A letter). The letter related to information that [Mr D] one of the leaders of the mutiny at [Barracks 1], [Town] in [2000] and sentenced to life imprisonment had recently received a presidential pardon and was released from prison. The applicant provided a response to the s 424A letter on 18 April 2024, which included a letter from [Mr D]. This letter is discussed in the Tribunals analysis below.
No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.
Independent Information
General security and human rights situation in Fiji
Fiji is generally stable and secure.[2] Fiji abolished the death penalty in 2015 and it was last used in 1964.[3] The Department of Foreign Affairs and Trade (DFAT) is not aware of any recent extrajudicial killings or enforced or involuntary disappearances.[4] Torture is unlawful but has been alleged in the context of police brutality.[5] Fiji police are generally considered professional, well-resourced and, in general, disciplined.[6] Police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[7] Police violence is often reported, though the situation is improving. [8] Police misconduct, including excessive violence, is regularly investigated and in most cases there is reasonable action taken when a complaint is reported.[9]
[2] DFAT Country Information Report Fiji, 20 May 2022, at [2.34]
[3] DFAT Country Information Report Fiji, 20 May 2022, at [4.3]
[4] DFAT Country Information Report Fiji, 20 May 2022, at [4.1–4.2]
[5] DFAT Country Information Report, Fiji 20 May 2022, at [4.4]
[6] DFAT Country Information Report, Fiji 20 May 2022, at [5.6–5.7]
[7] DFAT Country Information Report, Fiji 20 May 2022, at [5.10]
[8] DFAT Country Information Report, Fiji 20 May 2022, at [5.11]
[9] DFAT Country Information Report, Fiji 20 May 2022, at [5.13]
Coup d’état and attempted mutinies of 2000
In 1999, Mahendra Chaudry was elected as Fiji’s first Indo-Fijian Prime Minister.[10] On 19 May 2000, a group of armed men led by George Speight stormed parliament and held Chaudry and his government hostage.[11] The coup was backed by the Fijian CRWU, which had been established by Sitiveni Rabuka in 1987.[12] Fiji’s President Sir Kamisese Mara proclaimed a state of emergency and acted on the advice of the sole member of parliament not held hostage, Tevita Momoedonu as acting prime minister.[13] On 29 May 2000, the Royal Fijian Military Force commander, Frank Bainimarama to take control. Bainimarama sacked Mara.[14]
[10] DFAT Country Information Report Fiji, 20 May 2022, at [2.3]
[11] See e.g. Fijian Coup 20 years on: how ordinary people coped with chaos, University of Auckland, 7 May 2020, available at: Fijian coup 20 years on: how ordinary people coped with chaos - The University of Auckland, accessed on 20 May 2024
[12] See Roderic Alley, “Fiji’s Coups of 1987 and 2000: A comparison”, p223, available at: accessed on 20 May 2024
[13] Michael Field, Tupeni Baba, Unaisi Nabobo-Baba, Speight of Violence: Inside Fiji’s 2000 Coup, Pandanus Books, Research School of Pacific and Asian Studies, The Australian National University, Australia, 2005, pp. 128-129 available at: accessed on 20 May 2024
[14] Ibid., p. 135
On 3 July 2000, Bainimarama appointed Laisenia Qarase as Prime Minister.[15] A gun battle broke out at parliament.[16] Soon after soldiers overran Sukanaivalu Barracks in Labasa in support of Speight.[17] On 9 July 2000, Speight signed an accord with the military agreeing to release hostages in exchange for amnesty[18] but was later arrested on 26 July 2000.[19] On 2 November 2000, pro-Speight CRWU soldiers at Queen Elizabeth Barracks in Suva mutinied in a failed attempt to depose Military Commander Frank Bainimarama.[20] Soldiers involved in the mutinies were later charged and convicted of mutiny.[21]
[15] Ibid., p. 205
[16] Ibid., p. 205
[17] Ibid., p. 206
[18] Ibid., p. 209
[19] Ibid., p. 232
[20] Ibid., p. 243
[21] See e.g. “Leaders of Labasa mutiny in Fiji get life imprisonment”, Radio New Zealand, 29 January 2003, available at: accessed on 20 May 2024 and “Fiji mutineers face death sentence”, BBC News accessed on 20 May 2024
Recent Political Developments
Following the 2022 elections, a coalition of the People’s Alliance party, the National Federation Party (NFP) and the Social Democratic Liberal Party (SODELPA) took power in Fiji.[22] The coalition took power from Prime Minister Frank Bainimarama who became prime minister in 2007 after a 2006 coup d’etat[23] and from the Fiji First party that Bainimarama established in 2014. Sitiveni Rabuka, the leader of the People’s Alliance, who had led two coup d’états in 1987 and had been Prime Minister of Fiji from 1992-1999, became Prime Minister.[24]
[22] See e.g. Jon Fraenkel, “The Anatomy of Frank Bainimarama’s Defeat at the Fiji December 2022 Election”, The Journal of Pacific History, 30 October 2023, available at: Full article: The Anatomy of Frank Bainimarama’s Defeat at the Fiji December 2022 Election (tandfonline.com),accessed on 20 May 2024
[23] DFAT Country Information Report Fiji, 20 May 2022, at [2.4]
[24] See e.g. Jon Fraenkel, “The Anatomy of Frank Bainimarama’s Defeat at the Fiji December 2022 Election”, The Journal of Pacific History, 30 October 2023, available at: Full article: The Anatomy of Frank Bainimarama’s Defeat at the Fiji December 2022 Election (tandfonline.com),accessed on 20 May 2024
Since the ruling collation took power, it removed the head of the Fiji Broadcasting Corporation who was the brother of the former attorney general[25], and established the Commission on the Prerogative of Mercy (Mercy Commission), which was written into the 2013 Constitution but never convened.[26] Prisoners can petition to the Mercy Commission which can recommend that the president grant pardons, postpone the carrying out of punishment or remitting of all or part of a punishment.[27] In December 2023, a number of people imprisoned for their roles in the attempted mutiny at Queen Elizabeth Barracks and Sukanaivalu VC Barracks in 2000 were pardoned.[28] In May 2024, former Prime Minister Frank Bainimarama was sentenced to one year’s imprisonment for perverting the course of justice relating to financial mismanagement at the University of the South Pacific.[29] Aiyaz Sayed-Khaiyum, a senior figure in the Fiji First party stated that Bainimarama would continue to lead the Fiji First party.[30]
CONSIDERATION OF CLAIMS AND EVIDENCE
[25] Blake Johnson and Lucy Albiston, “Rapid changes in Fiji require a delicate balance of support”, The Strategist, Australia Strategic Policy Institute, 8 February 2023, available at: Rapid changes in Fiji require a delicate balance of support | The Strategist (aspistrategist.org.au), accessed on 17 May 2024
[26] Ibid.
[27] s119(3) of the Constitution of the Republic of Fiji (2013)
[28] See Kori Hawkins, “Fiji’s president pardons coup prisoners – No threat to ‘established order’, expert says”, Radio NZ , 22 December 2023, available at: Fiji’s president pardons coup prisoners - No threat to ‘established order’, expert says | RNZ News, accessed on 17 May 2024 and “Sivaniolo Lumelume, “Ratu Inoke walks free through Presidential Pardon”, FBC News, 20 December 2023, available at: Ratu Inoke walks free through Presidential Pardon – FBC News, accessed on 17 May 2024.
[29] Ivamere Nataro in Suva, and Reuters, “Former Fiji PM Frank Bainimarama sentenced to year in jail”, The Guardian, 9 May 2024, available at: Former Fiji PM Frank Bainimarama sentenced to year in jail | Fiji | The Guardian, accessed on 16 May 2024.
[30] Ibid.
Relevant Law
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis – assessment, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The Tribunal has considered the applicant’s claims and the independent information described above and makes the following findings. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and receiving country
The applicant claims to be a citizen of Fiji and no other country. The applicant provided the Department with a copy of his Fijian passport. The delegate was satisfied with the applicant’s identity and the authenticity of his passport. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Fiji and considers Fiji is the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims to be a refugee
It is the responsibility of an applicant for a Protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).
The Tribunal has considered the information before the Department and provided to the tribunal both before and during the Hearing as well as relevant independent country information. The applicant claims he took part in an attempted mutiny at [Barracks 1] at [Town] in [2000] and was subsequently violently arrested, charged and sentenced to a [Number]-year prison sentence, which he served. He claims he left Fiji and found work in [Country 1] to escape threats and intimidation. The applicant’s evidence was that he has not been harmed since then but was being monitored until approximately 2014 or 2015. The applicant fears he would be harmed again in Fiji, including being re-detained and being stigmatised for his role in the attempted mutiny in 2000.
The Tribunal found the applicant’s evidence at the hearing generally to be frank. The applicant responded directly to the Tribunal’s questions and the Tribunal found his answers to be candid and without embellishment. The Tribunal also accepts the applicant’s evidence given at hearing that he was not part of the CRWU as he had stated in his protection visa application but was part of the [battalion 1] which was involved in the attempted mutiny at [Town] in [2000]. He claims he conducted some training with the CRWU so included that in his protection visa application. The Tribunal finds that the applicant was not in the [battalion], which was involved in the mutiny at [Barracks 2].
There is evidence that an attempted mutiny took place at [Barracks 1] in [2000].[31] The Tribunal accepts the applicant’s claims that he was a member of the Fijian military force and took part in an attempted mutiny at [Barracks 1] at [Town] in [2000] and was later court martialled and sentenced to a term of [Number] years’ imprisonment which he served. In making this finding, the Tribunal puts weight on the letters provided by the applicant to the Tribunal, in particular, the letter from [Military rank D] and also the letter from [Military rank A] dated 26 September 2007. The Tribunal also accepts the applicants claims that he was mistreated while he was imprisoned. The applicant described being beaten and hit with the butt of a rifle. There are reports of mistreatment in custody in Fiji and the Tribunal found the applicant’s evidence regarding his mistreatment plausible and accepts that this occurred.
[31] [Reference 1], accessed on 21 May 2024
The Tribunal accepts the applicant’s evidence that he has continued to work in [specified places] for [specified employer] in [Country 1]. The many certificates and references provided by the applicant support this, as do the stamps on his passport indicating his travel to [Country 1] since his release from prison. The Tribunal accepts that it was more difficult for the applicant to find work in Fiji after his role in the mutiny due to the stigma associated with his role in the attempted mutiny and subsequent imprisonment and this would have been a factor in his decision to find work outside Fiji. The Tribunal notes, however, that the applicant was able to subsequently find work in Fiji as [an occupation], including for [employers], including [Employers 1 and 2] in Fiji. Given the applicant’s ability to find work with [employers], the Tribunal is satisfied that the applicant has not faced serious discrimination from the Fijian government for over 10 years. It is also satisfied that he is not at risk of serious harm of the nature considered in ss 5J(5)(d)-(f) of the Act. The applicant’s [children’s] continued enrolment in Fijian schools and in higher education do not indicate any continuing discrimination against his family for his role in the mutiny in 2000.
The Tribunal notes the applicant’s evidence at the hearing that he has not suffered harm since he was released from prison, though he believes he was being monitored until around 2014 or 2015. The Tribunal accepts that the applicant may have been subject to monitoring by the government following his release from prison. Given his role in an attempted mutiny, the Tribunal accepts that the Fijian government may wish to keep track of the applicant’s activities to ensure he is not involved in further subversive behaviour. However, now that nearly a decade has passed since he last claims to have been monitored, let alone harmed, the Tribunal finds that any chance of serious harm the applicant may face for his role in the attempted mutiny in 2000 is remote or speculative.
Further, country information demonstrates that [Military rank D] was one of the leaders of the attempted mutiny at [Barracks 1] in 2000.[32] Evidence shows that [Mr D] was pardoned in December 2023 along with other leaders of the mutiny in 2000 who were still in prison.[33] The Tribunal wrote to the applicant in a s 424A letter setting out the information that [Mr D] had been pardoned and released form his life sentence. The s 424A letter explained that this information was relevant as it demonstrated the attitude of the government to people who participated in the 2000 mutiny had been relaxed and suggested that the applicant, who played a lesser role in the mutiny would not face a real chance of serious harm or a real risk of significant harm in Fiji.
[32] [Reference 2], accessed on 21 May 2024
[33][Reference 3], accessed on 21 May 2024
The applicant responded to the s 424A letter on 18 April 2024 with a letter from [Mr D]. The applicant’s response can be summarised as follows:
·    The Fijian government promised [Mr D]’s release if they were elected.
·    The political situation was not stable and may change if the opposition is elected at the next election in 2026.
·    The applicant will be on a watchlist if the opposition party is elected.
·    [Mr D] requested a presidential pardon on the basis of his age and his health as well as the time he had already served and these factors do not apply to the applicant.
·    The current Fijian Prime Minister, Mr Sitiveni Rabuka, originally created the CRWU to serve his own political interests.
·    The current coalition in government in Fiji is vulnerable if any of the parties in the coalition decide to withdraw from it.
·    There have been a number of scandals affecting ministers in the current governing coalition.
·    Prime Minister Rabuka may seek to rally former CRWU members to support him.
·    The applicant still fears his human rights of not being involved in the execution of terror, violence, and death of innocent Fijians being violated if he returns to Fiji.
·    Prime Minister Rabuka may be threatened by the current Fijian military commander, Major General Jone Kalounwai and seek to re-establish support diminished by the previous president, Mr Bainimarama, including by pardoning former CRWU personnel such as [Mr D].
The Tribunal has considered the applicant’s response to the s424A letter. The Tribunal understands the applicant’s claims essentially to be that Prime Minister Rabuka may call on former CRWU members to support him if challenged by the opposition, other members of the government coalition or other powerful figures such as Major General Jone Kalouniwai and that he may be called to terrorise, commit violence against or even kill Fijians. The Tribunal accepts that there is a possibility that this may occur, however, the Tribunal assesses the chance of this occurring as remote. The Tribunal accepts that there is a real possibility that the opposition may be re-elected in 2026 or that the current ruling coalition may fall apart and that Mr Rabuka is likely to take steps to consolidate his power. The Tribunal also accepts that Mr Rabuka previously established the CRWU, which was disbanded in 2000 and may look to former members and supporters of the CRWU for support in the future, including the applicant. The Tribunal also considers based on the evidence provided by the applicant that Major General Jone Kalounwai may seek to take power and that allegations have been made about Major General Jone Kalounwai ‘s actions including allegations of covering up torture and human rights abuses. However, even if Mr Rabuka’s power is challenged and he takes steps to build support from former CRWU members and supporters, what form that support would take, whether it would lead to violence and how the applicant may be involved in any further support for Mr Rabuka is highly speculative. The Tribunal assesses the chance that the applicant would face serious harm for this reason as remote and significantly less than a real chance.
The applicant’s response also included a letter from [Mr D], which confirmed the applicant’s role in the mutiny in [2000] and subsequent imprisonment. He also stated that he was given an unconditional pardon by the President of the Republic of Fiji and ‘I am now free of any discrimination.’ The Tribunal has also considered [Mr D]’s letter attached to the applicant’s response to the s424A letter. The Tribunal considers [Mr D]’s statement in that letter that he is now free from discrimination only confirms the Tribunal’s assessment that the chance the applicant would face serious harm in the future for his role in the attempted mutiny of 2000 is less than a real one.
The Tribunal has considered the material provided by the applicant tot the Department, and the Tribunal, including at the hearing as well as independent country information. The Tribunal finds that the applicant would not face a real chance of serious harm in the reasonably foreseeable future for his role in the attempted mutiny of [2000]. The Tribunal makes this finding based on the time that has passed since the applicant was involved in the [2000] attempted mutiny and his subsequent imprisonment and the lack of continued interest in prosecuting or harming the applicant. The Tribunal accepts that the applicant may still be stigmatised to some degree for his role in the [2000] mutiny. However, the applicant’s ability to secure employment later, including at government agencies demonstrates the degree of stigma he has faced is low. The applicant’s evidence at the hearing that he has not faced harm from the government since being released, other than being monitored until around 2014 or 2015 further supports the finding he would not face serious harm in the reasonably foreseeable future. The release of the mutiny leader in December 2023 after a presidential pardon further indicates the Fijian authorities do not wish to punish or harm people, even leaders, involved in the [2000] mutiny. [Mr D]’s statement that he is free from discrimination is indicative of the low risk of harm for leaders of the mutiny. Given the relatively minor role the applicant played in the [2000] mutiny compared to the recently released leaders, this indicates he is at an even lower chance of serious harm for his role in the attempted mutiny.
The Tribunal accepts that there is a real possibility that the Fijian government may change in the foreseeable future, following the 2026 election or breakdown of the current ruling coalition, or even possibly, the intervention of military figures such as Major General Jone Kalounwai. However, what form this may take and how it would affect the applicant is highly speculative. The applicant is now [Age] years old, and last served as a [rank] in the RFMF in 2000. His involvement in politics has been minimal. It has been nearly 27 years since he was involved in the [Town] mutiny and has given evidence that since he was released form prison in [Year], he has not been harmed other than being monitored until 2014 or 2015. The possibility that the current government may change does not alter the Tribunal’s finding that the applicant would not face a real chance of serious harm on return to Fiji,
The applicant has advanced no other claim as to why he would face a real chance of serious harm in Fiji other than that relating to his role in the 2000 mutiny and there is nothing in the material before the Tribunal to indicate that the applicant would face a real chance of serious harm for any other reason.
Findings on refugee criterion
For the reasons above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to Fiji for any reason in s 5J(1)(a), now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in Fiji. Accordingly, the applicant does not satisfy s 5H(1).
Consideration of applicant’s claims for complementary protection
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).
As set out above, the Tribunal is not satisfied that the applicant would face a real chance of serious harm in Fiji. For similar reasons, the Tribunal considers the risk the applicant would face significant harm on return to Fiji to be well below what could be considered far below a real risk. In making this finding, the Tribunal has put weight on the lack of harm faced by the applicant since he was released from prison in 2007 and the amount of time that has passed since the applicant’s role in the attempted mutiny of [2000]. The applicant’s employment by government agencies, and evidence that he has not faced harm from the government since being released support this finding. The release of the mutiny leader in December 2023 after a presidential pardon further indicates the Fijian authorities do not wish to punish or harm people, even leaders, involved in the [2000] mutiny. The Tribunal has considered the applicant’s response to the s 424A letter and his fears of harm in the future. However, the Tribunal finds that the basis of these fears are highly speculative and do not provide substantial grounds for believing there is a real risk the applicant would face significant harm on return to Fiji.
Findings on Complementary Protection
The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk of significant harm.
CONCLUSION
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 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Lumsdaine
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 3511

24 May 2024

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