1904882 (Refugee)

1904882 (Refugee) [2024] AATA 2164 (11 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904882
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Sophie Manera
DATE:11 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 March 2024 at 9:50am

CATCHWORDS
REFUGEE – Protection Visa – Fiji – political opinion – online criticism of the previous government on social media – criticism of the former government – a failed asylum seeker – government applicant has previously criticised is no longer in power – married to a member of a minority group – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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

The applicant is a [age]-year-old man and a Fijian national.
On [date] June 2018 the applicant arrived in Australia on a valid FA-visitor visa.
On 3 July 2018 the applicant applied for a protection visa.
On 14 February 2019 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). 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 as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
This is an application to the Administrative Appeals Tribunal (Tribunal) for review of that decision. The applicant made a valid application for review on 3 March 2019. The applicant provided a copy of the delegate’s decision record to the Tribunal.
The applicant appeared before the Tribunal on 27 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted in the English language. An interpreter in the Fijian and English languages was present via video link for the duration of the hearing should the applicant have needed him, however the applicant was a proficient English-language speaker and did not require the use of the interpreter during the hearing. The applicant was asked at the start of the hearing whether he could understand the Tribunal, and he confirmed that he could. He was also told by the Tribunal that he was able to use the interpreter for assistance at any time during the 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 as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
In his application for a protection visa, the applicant claims to be a citizen of Fiji, born in [City 1], [a] province.
The applicant provided a certified copy of a Republic of Fiji passport in support of his protection visa application and provided a copy of the same passport to the Tribunal.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Fiji, and as such his protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Application for a protection visa
In an undated written statement by the applicant received by the Department of Home Affairs on 4 July 2018 in support of his protection visa application, the applicant made the following claims which are summarised below.
The applicant came to Australia as a tourist to visit relatives and friends.
The thought of going back home to Fiji and coming face to face with ill treatment and suppression of the people has caused him depression and stress.
In Australia the applicant can experience a democratic country. He can openly discuss matters of national concern and criticise the Fijian government freely.
The applicant has faced psychological harm from the military coups since 1987.
The applicant fears his basic human rights will be deprived if he returns to Fiji.
The applicant is healthier mentally and physically in Australia.
The applicant fears he will be reprimanded by the Fijian government as he has criticised the government on social media and discussed the problems he faces as an indigenous Fijian.
The psychological problems he has faced for the past 10 years will worsen, and possibly drive him to suicide. He does not want this to happen or for his family to suffer and see him depressed.
In Fiji the applicant has suffered depression due to government policies. In Fiji he does not have a voice. It was depressing to have to learn about democracy in school, but not be able to practice it because of a dictatorial government who does not believe in democracy.
The Fijian government is responsible for his psychological harm, as they do not want indigenous Fijians to be recognised as the first people of Fiji. Their traditional cultural values are not respected by the government and indigenous rights are not recognised. There is no freedom of expression, and the media is controlled by the government. The country is not democratic, and youth have no voice.
Due to his depression, the applicant has become aggressive and at times violent towards his family. This behaviour had never been part of him before. The trips to Australia have been a healing experience, but as soon as he returns to Fiji he is faced with problems created by government policies, causing him more depression and stress.
The applicant has not sought help within Fiji as he does not know any organisation in Fiji that is available to help youths who are suffering in silence and suffer psychological trauma. He received some consolation from a church youth group where he was able to feel accepted and heard.
The applicant cannot criticise the government and there is no NGO he can complain to, as one of their staff might be supportive of the government and report on him. He can only turn to the church, which has been very helpful in counselling and supporting his family.
There is nowhere else in Fiji where the applicant can move to. In his local community he is surrounded by relatives and close friends. The social network provides a safety net that he needs to reduce the psychological harm caused by the government. He did not want to burden other relatives by moving to another place in Fiji. Also, if he moves his whole village will be implicated, as he could be seen as causing trouble.
The applicant has been vocal as he is in a good country where freedom of speech is exercised. He is able to challenge the Fijian government and its policies, which makes him feel better. He is afraid for his life and safety if he returns to Fiji.
The applicant was not invited to a protection visa interview.
Application for review
Oral evidence given at the hearing
A summary of the evidence given by the applicant at the hearing is as follows:

the applicant was born in [City 1], Fiji. He is married with four stepchildren and one biological daughter;
his stepchildren live in Fiji. His wife and biological daughter currently live in [Country 1];
he has three sisters who live in Fiji. He co-owns the family home in [City 1] with two of his sisters;
he has a [qualification] obtained in Fiji, and had worked in hospitality in Fiji from approximately 1997 until the end of 2006. He ceased working in 2006 to spend time with his children;
in Australia the applicant has worked in [various fields]. He is currently working as a [occupation];
he first visited Australia with his wife in about June or July 2017 on the recommendation of a friend. He then returned to Australia on two more occasions that year. He visited Australia in January [2018];
he last entered Australia in June 2018 to find a better life. He has not departed Australia since his last arrival. The applicant did not have any problems at the airport when departing Fiji;
the applicant has never formally been diagnosed with any health conditions, however he suffered back injuries from sport during his school years. He is currently in fine health.

The Tribunal asked the applicant about his interest in politics. The applicant said that he was interested in the idea of fairness for all. He said that he had never been involved in political activism and had never been a member of a political party. The applicant said that Fiji had recently undergone elections and there had been a change of government. The Tribunal asked the applicant what he thought about the current government. The applicant said that he believed in the new coalition government, as people from every race and ethnic group were represented.
The Tribunal asked the applicant whether he ever discussed politics with others. The applicant said that in Australia he had spoken about the last government with close friends or relatives; only people he trusted and knew very well. He said he spoke about his frustration with the previous government, namely the fact that what members of the previous government said in the media about Fiji was different to the reality. The government monitored social media and controlled the media. He said that things were different now that there had been a change of government.
The Tribunal asked the applicant whether he had any social media accounts, and whether he had actively criticised the Fijian government on social media. The applicant said that he had a [social media] account, but he did not post about politics on [social media]. He said he did not want to bring attention to himself.
The applicant was asked whether he thought the change of government in Fiji would adversely affect him. The applicant said that the situation in Fiji was improving, however it will take a few terms for Fiji to return to where it was before the previous government. It will take a long time to change the mindset of the people.
The Tribunal asked the applicant whether he prepared his protection visa application himself. The applicant said that he asked a lady to assist him with completing the application, as she could read and write well in English. He explained to her why he could not return to Fiji and she wrote this down for him in a statement of claims.
The Tribunal asked the applicant why he left Fiji. The applicant said that, considering the previous government, he did not see a bright future for him and his children in Fiji. The idea for him to come to Australia and seek protection was to bring his children here to continue their studies.
The Tribunal asked the applicant why he feared returning to Fiji. The applicant said that Fiji is a small country and almost everyone knows each other. He said that if he were to return to Fiji now, people would think or know that he has sought asylum in Australia. He said that people would assume that he has sought protection on the basis that he did not like the former government. He had criticised the former government to Fijians in Australia. He said that the previous government still had supporters in the community. The Tribunal asked the applicant how people in Fiji would know that the applicant has applied for protection in Australia, and how would they know that his claims related to criticism of the former government. The applicant said that some Fijians post on social media about the number of Fijians who apply for protection and their common claims. People have posted online that it is common for Fijians to seek asylum on the basis of having criticised the previous government. He said that some people do not like that Fijians have sought protection in Australia on this basis.
The Tribunal asked the applicant who he feared harm from. The applicant said it was more from law enforcement, specifically law enforcement dressed in civilian clothing. The Tribunal asked what he thought they would do to him. He said people would look at him in a strange way or say something to him, or it could escalate into something more violent. He said that there are still supporters of the previous government and they do not like it when people seek asylum in Australia for reason of their criticism of the previous government.
The Tribunal asked the applicant whether anyone who had spent substantial time outside of Fiji would be at risk of being imputed to be a person who has sought asylum based on criticising the former government. The applicant said that even a person who had been in Australia on a work visa was at risk of being accused of being an asylum seeker if they had criticised the former government.
The Tribunal asked the applicant whether, considering he had only shared his political opinions with close friends and relatives, he would be found out to be a person who had verbally criticised the previous government. The Tribunal informed the applicant that he had previously said he only voiced his opinions with people he trusted. The applicant responded that he tended to choose what he said wisely and was careful with what he said.
The Tribunal asked the applicant whether the change of government made any difference to his fears of returning as a failed asylum seeker, considering the government he has previously criticised is no longer in power. The applicant said that he was not sure about that, but there could still be people who support the last government.
The Tribunal asked the applicant where he would go if he had to return to Fiji. The applicant said he would probably go back to his village.
The applicant was asked whether he had heard of returnees to Fiji being harmed for seeking asylum. The applicant replied that he had not.
The applicant was asked whether he knew of anyone posting on social media about him, and the applicant responded that he was not aware.
The applicant was asked whether, when he lived in Fiji, he had heard news or gossip about failed asylum seekers. The applicant said he had not, as he did not know about protection visas when he was in Fiji.
The applicant was asked to discuss any experiences of harm in Fiji. The applicant said that during the coup he never faced any real harm, however he felt there was a risk that something could happen at any time. This fear continued after the coup and when the former government was in its first term of office.
The applicant also spoke of an occasion of corruption or bias in his life. On one occasion he paid a deposit for a piece of land, however when he later sought a plan of the land he was told the land had been sold to somebody else. When the applicant asked for information on who the land had been sold to, the applicant was told that the file had been lost.
Summary of claims
The Tribunal then sought to clarify the applicant’s claims for protection, considering that the claims raised in the hearing differed from the claims raised in written statement provided in support of the protection visa application.
The Tribunal raised with the applicant that his written statement stated that he feared harm due to his online criticism of the previous government on social media. He also suffered from depression due to the previous government’s policies and the lack of democracy. The applicant said that the lady who assisted him with preparing his written statement had exaggerated his claims. He said that he felt a sense of frustration due to the corruption and lack of democracy in Fiji.
The Tribunal summarised the applicant’s claims and put them to him as follows: the applicant fears harm in Fiji from law enforcement as a failed asylum seeker. As he has been away from Fiji for some years and has criticised the previous government to close friends and relatives, people may assume that he had sought asylum in Australia on the basis of fearing harm from criticising the previous government. Law enforcement who still support the previous government may harm him for his actual or imputed criticism of the former government.
The Tribunal asked the applicant whether there was any other reason why he feared harm on return to Fiji. The applicant stated that he is married to a member of a minority group. His wife is [of mixed ethnic background]. He said that minorities have little say, and that his wife was waiting for an opportunity to leave Fiji. She has now secured work as a [occupation] in [Country 1] and has engaged a lawyer to try to remain there. He also said he has secured a good job in Australia and has established a good life in Australia.

The Tribunal asked whether he could live in a different part of Fiji to avoid being the subject of speculation that he had sought asylum in Australia. The applicant said that while he may avoid being the subject of talk in a small village, there is no source of income in villages. He would have to live in a town where he could find work, but people talk and gossip in towns.
Issues put to the applicant
The Tribunal raised a number of issues with the applicant for his comment. First, the Tribunal queried why the applicant did not seek asylum on one of his earlier visits to Australia. The applicant said that his first trip was simply to visit. His second and third trips were to see whether Australia would give him an opportunity to have a better life.
The applicant was informed that while he may prefer the life that he leads in Australia as he has a good job and because there is less corruption in Australia, this may not entitle him to protection in Australia.
The applicant was informed that a country information report from DFAT states that DFAT is not aware of any official or societal discrimination against failed asylum seekers. The applicant responded that there may be incidents of harm towards failed asylum seekers that have not yet been reported or may not be officially documented. The applicant said the Fijian authorities would be reluctant to share this information. He said that the Fijian authorities would not tell the Australian authorities about the real situation of returnees to Fiji.
It was also put to the applicant that there were no reports of harm from those loyal to former Prime Minister Bainimarama to those who publicly opposed the former government. The applicant responded that the critics who have returned to Fiji are being protected by the current government as they are well-known figures. The public critics of the former government would be protected, but ordinarily people are being targeted.
It was also put to the applicant that some low-level societal discrimination exists in Fiji, however country information indicates there is no official discrimination against indigenous Fijians. The applicant said that country information would not publish information about bad things happening in Fiji.
The Tribunal asked the applicant whether the Fijian police could provide him with effective protection from harm. The applicant said that the police would not be with him 24/7. The police do not have the resources to protect everyone.
Country information
The latest DFAT country information report on Fiji states:
iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.[1]
…
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[2]
…
DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[3]
[1] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022 at 3.10.
[2] Ibid at 5.10.
[3] Ibid at 5.28.
Country information reports indicate that critics of the former government have been able to return to Fiji without harm from former Prime Minister Bainimarama or those loyal to him or his party. In March 2023 the Australian Institute of International Affairs (AIIA) stated that people who were deported, threatened or forced to leave Fiji for speaking out against the former FijiFirst government are being granted permission to return, and are doing so.[4]
[4] Nancy Schneider, Cautious Optimism for Fiji’s Coalition Government, Australian Institute of International Affairs, 8 March 2023,
ANALYSIS, FINDINGS AND REASONS
The Tribunal has considered the applicant’s claims and independent information described above and makes the following findings.
The applicant’s written claims in his protection visa application and statement of claims
The applicant made a number of written claims in an undated statement provided to the Department of Home Affairs in support of his protection visa application. A summary of this statement is provided above. During the hearing the applicant stated that he did not write his statement of claims himself; a friend who is proficient in reading and writing in English wrote the statement for him, with his guidance. The Tribunal informed the applicant that there were significant differences between his written claims and the claims and evidence given during his hearing. The Tribunal prefers the evidence given by the applicant at the hearing as, on the applicant’s oral evidence, his friend had exaggerated his claims in his written statement. During the hearing the Tribunal clarified the applicant’s claims and, based on the applicant’s oral evidence, established the applicant:
·did not fear persecution as a social media activist, as he had never engaged in social media activism; and
·has not suffered depression or psychological problems due to government policies, rather, he was frustrated by the widespread corruption, lack of media freedom, lack of freedom of speech, and hypocrisy of the previous government.
As such, the Tribunal rejects the applicant’s written claim that he would face harm as a social media activist, and rejects the applicant’s claim of adverse impact to mental health if returned to Fiji.
The Tribunal notes that some of the claims raised in the applicant’s written statement of claim are consistent with the evidence given at the hearing, and these claims are considered below along with any other claims raised at the hearing.
Claim of persecution as a failed asylum seeker and critic of the former government
During the hearing, the applicant stated that he had expressed dissatisfaction and frustration with the former government to close friends and relatives in Australia; people he trusted. He had not expressed this criticism while in Fiji. The Tribunal accepts the applicant’s evidence that he has verbally criticised the former government to close friends and relatives in Australia. Politics is a topic of interest to many, and it is common to share one’s political opinions with others.
However, for the following reasons, the Tribunal does not accept the applicant would face a real chance of serious harm arising from his verbal criticisms of the previous government. Nor does the Tribunal accept that the applicant would face a real chance of serious harm as a failed asylum seeker.
Firstly, the Tribunal finds there is a remote chance that the applicant’s verbal comments made against the former government would be published online and that his opinions would be discovered by the wider Fijian community. On his evidence, the applicant has only disclosed his political views to close friends and relatives. He is careful with what he says as he never knows who could repeat it. The applicant is not aware of anyone posting about him on social media. The Tribunal finds it unlikely that the applicant’s close friends and relatives would publish his comments on social media for all their online friends to see, in a way that would identify the applicant.
Secondly, even if the applicant’s friends did choose to publish his comments online and identify him, the Tribunal does not accept the applicant faces a real chance of serious harm arising from any criticism of the former government attributed to him. On his evidence, the applicant believes he may come to the attention of the authorities as a result of members of the Fijian community talking about him and speculating that he sought asylum in Australia for reasons of political opinion. However, he is not aware of any returnees to Fiji facing harm as a failed asylum seeker or for their criticism of the previous government. When he last resided in Fiji, he had not heard gossip or news of returnees to Fiji who had been harmed for these reasons. Furthermore, country information indicates that many Fijians have ties to Australia and DFAT is not aware of reports of official or societal discrimination against failed asylum seekers.
While the applicant has an interest in politics, he has not expressed an intention to continue criticising the former government if returned to Fiji. The government has changed, and the Tribunal finds that the applicant would be likely to discuss the current government and the current state of political affairs in Fiji, rather than a former government that is no longer in power.
Lastly, based on the country information above, the Tribunal finds that the Fijian police is generally effective at offering adequate protection, and the applicant could seek assistance from the authorities if required.
Claims regarding discrimination against the applicant’s wife, and deprivation of basic human rights
The Tribunal asked the applicant whether there was any other reason why he feared harm upon return to Fiji. The applicant responded that his wife was a member of a minority group, as a person of [ethnic] background. The Tribunal finds that this claim relates to the applicant’s wife, who is not a party to this application. The applicant has not explained how his wife’s ethnic background creates a real chance of serious harm to him.
The Tribunal notes that while country information states that some low-level societal discrimination exists that affects most Fijians, the Tribunal does not accept that, in the applicant’s circumstances and considering the lack of evidence and detail, he faces a real chance of persecution involving serious harm if he returns to Fiji in the reasonably foreseeable future. Furthermore, there is no evidence that any societal discrimination against the applicant would be specifically targeted at him: s 5J(4)(c).
As such, the Tribunal does not accept the applicant has a well-founded fear of persecution for reasons of his or his wife’s ethnicity or race.
The Tribunal also does not accept there is a real chance the applicant will be deprived of his basic human rights if returned to Fiji. When asked whether he had been deprived of his human rights in Fiji, the applicant responded “not really”. He did not specify exactly which basic human right was in issue. He gave an example of government corruption when he tried to buy a piece of land which had already been sold to somebody else. The applicant did not provide any other examples or evidence of how he specifically would be deprived of his basic human rights. He has not been denied a place of abode, considering he currently co-owns property in Fiji and has been usually resident in Fiji for most of his life. The Tribunal accepts that the previous Fijian government has been affected by corruption, which has likely permeated through all levels and government agencies, however the Tribunal is not satisfied this results in a real chance of serious harm to the applicant by way of denying his basic human rights. The Tribunal also notes that according to the NGO Freedom House, rights and liberties have improved in Fiji. Fiji’s Global Freedom Score in the 2024 Freedom in the World Report increased by 7 points from the 2023 report.[5]
[5] Elliot Davis Jr, ‘Report: Global Freedoms Declined – Again – in 2023’, US News.com,
Furthermore, the Tribunal finds that if the applicant were to be affected by corruption in Fiji, the harm he fears is generalised and does not result from systematic and discriminatory conduct because of the applicant’s race, ethnicity or any other reason unique to him: s 5J(4)(c).
Claim regarding better opportunities in Australia
The applicant also stated that he does not have a reason to return to Fiji as his wife and daughter have left for [Country 1], his older children have their own families, and he has established a good life in Australia. The Tribunal accepts that the applicant and his wife have left Fiji in order to seek opportunities for a better life elsewhere. However, the Tribunal finds that given the applicant’s age, work experience, assets, and family ties, the applicant would not be subject to economic hardship of a level that would threaten his capacity to subsist, nor does the Tribunal accept that the applicant would be denied the capacity to earn a living of any kind in Fiji.
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).
Complementary protection
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). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant will be the subject of adverse attention from the authorities as a person who has verbally criticised the former government, as a failed asylum seeker, nor as an indigenous Fijian.
Furthermore, the Tribunal is not satisfied his claims of preferring to stay in Australia due to better opportunities meets the definition of significant harm in s 36(2A). ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. Considering the applicant’s specific circumstances, namely his age, fine state of health, work experience, and family ties in Fiji, the tribunal is not satisfied that the applicant’s preference to remain in Australia for economic reasons would result in him facing significant harm should he return to Fiji.
The applicant did not claim harm for any other reason.
For the above reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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.
Sophie Manera
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2024] AATA 2164

11 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction