1905328 (Refugee) v Minister for Home Affairs
[2024] ARTA 486
•18 October 2024
1905328 (REFUGEE) [2024] ARTA 486 (18 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1905328
Tribunal:General Member M Tubridy
Date:18 October 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 18 October 2024 at 7:14pm
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and political opinion – erosion of Indigenous rights and values and freedom of speech – potential loss of family’s land – experience of coups and mental health – multiple departures and returns – counselling while in Australia –capacity to subsist – employment history and prospects – country information – recent change of government and socio-economic conditions – level of possible negative impact not significant harm – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
DJX17 v MICMA [2022] FedCFamC2G 917
Prahastono v MIMA (1997) 77 FCR 260
SZALZ v MIMIA [2004] FMCA 275Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (the Department), 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.
REASONS AND FINDINGS
Receiving country
The applicant presents as national of Fiji who was born in [Year] in [Town] in the Western Division of Fiji’s largest island, Viti Levu. At that time the law in Fiji was such that citizenship was granted to all persons born in the country.[1] The status of existing citizens was left undisturbed by a change in the citizenship law of Fiji in 1990 which required one or both parents must be a citizen (and in any event the applicant has indicated that both of his parents are citizens of Fiji; and in 1997 Fiji reverted back to citizenship for every person born in Fiji, unless at the date of birth one parent was a foreign diplomat and neither parent was a citizen).[2] The applicant has provided a copy of his Fiji passport, and its details are consistent with his claims regarding his identity and that his nationality is Fijian. I accept that the applicant is a national of Fiji, and I find Fiji to be his receiving country.
[1] Dziedzic, A. 'Comparative Regional Report on Citizenship Law: Oceania', Global Citizenship Observatory, 18 February 2020, 20200902084006, p.8.
[2] Dziedzic, A. 'Comparative Regional Report on Citizenship Law: Oceania', Global Citizenship Observatory, 18 February 2020, 20200902084006, p.8; Constitution of the Sovereign Democratic Republic of Fiji (promulgated 25 July 1990), CIS1D85456315; Fiji Constitution Amendment Act 1997, CISFCE36B0459; Citizenship Act 1998; Citizenship Act (Amendment) Decree 2000, CX137054; Citizenship of Fiji Decree 2009, CIS28099; Citizenship of Fiji Act 2009.
September 2018 written claims
The applicant submitted claims to protection in a written statement (the September 2018 statement) which he provided to the Department as part of his September 2018 lodged application for a protection visa. These can be summarised as follows:
· I last arrived in Australia [in] June 2018. This is my first ever trip and it has helped me greatly with in healing the psychological depression and stress that I had when I first arriving in the country.
· I have lived through and experienced one military coup after another. Democracy is not an option in Fiji because for the last 30 years of my life the country has been controlled by coup makers and their dictatorial leadership ways. The little experience of democracy up till 1987 was tarnished by the racial division that has been the course of unsettlement and a bleak future for me.
· Leaving Fiji, I was adamant not to go back to Fiji. I do not feel safe going back to Fiji because the current government is taking away from us our rights as indigenous and last settlers of Fiji.
· I am a strong advocate of human rights and am proud to be a Fijian, one who also strongly advocate for traditional values to be maintained. With the government maintaining that we are all equal and that our rights as traditional custodian of the land is taken away, this increases my stress and psychologically negatively affects me, resulting in me getting angry and depressed and becoming aggressive.
· The way my family was suffering because of my aggressive behaviour towards them, and my short tempers have made them encourage me to leave the country and to see if I would do better for my health when outside Fiji. Relocating in Australia has been the best thing for me because in the last three months my health has changed, and the psychological depression is slowly going away.
· Some of my rights that have been suppressed and this have resulted in the situation becoming a life-threatening situation for me. One of the rights I have been deprived of is my freedom of speech. I cannot criticize the government of the day because it will result in my being arrested and taken to task by the special joint force of the police and the military. Military. People are now taken to court and charged for talking against the government. Now I reside in Australia I am able to speak freely about the government.
· I have seen images of indigenous youths and adults taken by the military and the police after the 2006 military coup and beaten to death. Those images and the thought of the current government have stayed in my mind for the last 10 years. These had over the years psychologically affected me and as a result I sometimes become very aggressive and violent while I was in Fiji. Over the last month I and those around me have noticed the change and have commented on how I have become more sociable and less tense. This is because I now feel safe in this country.
· Coming to Australia has greatly improved my health condition. Meeting new people who I have come to treasure and getting great counselling has greatly assisted me reducing the psychological stress. I cannot seek assistance from my relatives in Fiji because, if I did, they will also be implicated. There is no NGO in place to assist us and my relatives have tried their best to no avail. My situation was getting worse in Fiji, and I was afraid that it would result in suicide or in my becoming violent.
· The Fiji government is responsible for the psychological harm. And this is so because they do not want the indigenous Fijian to be recognised as the first of people of Fiji and our cultural and traditional values are not respected by the current Fiji Government. Indigenous rights are not recognised in Fiji. There is no freedom of expression, and the media is controlled by the government. The country is not a democratic country and youths have no voice. All these limitations and restrictions have resulted in my negative attitude towards life and hence the psychological depression.
· If I return to Fiji, the trauma will continue and the aggressive behaviour and the feeling of being isolated, and that life must end will come back. This is because indigenous people are suppressed, and our rights taken away. My right to the land that my family-line have owned since the inhabitation of Fiji is now at risk of being lost to the current government. The suppressing of the traditional leadership system in Fiji is very depressing. I am brought up from a family where we uphold the culture and tradition of our land. My life in Fiji would be one of depression where there was no other option but to end my life.
The delegate’s February 2019 decision
On 15 February 2019 the delegate refused to grant the visa. The delegate accepted that applicant was a Fijian national and an indigenous Fijian by ethnicity, and that the applicant disagreed with the policies of the then government of Fiji (which at that time was constituted by Bainimarama’s FijiFirst party). The delegate noted that the applicant had provided no evidence of his claim of having suffered depression due to the political upheavals brought about by the coups in Fiji. The delegate nonetheless accepted that it was possible that the political situation there might have an adverse effect on the applicant’s mental health upon return. But the delegate was not satisfied that any such harm would actually be intended by Fiji’s government and its officials toward the applicant, or that the applicant would otherwise have a well-founded fear of persecution.
In summary, the delegate was not satisfied on the evidence before him that the then Fiji government’s land lease policies would result in the total loss of the applicant’s family land or these policies would otherwise threaten the applicant’s capacity to subsist. Neither was the delegate satisfied that the applicant would face any persecution on this basis of being opposed to the then Fiji government, given that it was not apparent that he (the applicant) was a vocal critic of the government or a high-profile political figure. The delegate was also not satisfied that the applicant would face real chance of being persecuted more broadly on account of his being an indigenous Fijian. The delegate considered that for these same reasons the applicant would not face a real risk of significant harm.
March 2019 application for review
On 7 March 2019 the applicant lodged his application with the AAT for review of the delegate’s decision of 15 February 2019 to refuse the visa. In doing so, the applicant attached a copy of the delegate’s decision and his refusal notification, but nothing further.
Background to Fiji, and concerns regarding the applicants claims
The applicant claims to be an indigenous Fijian, and a member of the indigenous Fijian community which is also referred to as the ‘iTaukei’ (based on the Fijian word for ‘landowners’, and who are sometimes also referred to as the Melanesian and/or Polynesian iTaukei).[3] I accept that he is. Though the applicant is now more than [Age] years old and is no longer a youth (he was born in [Year]), he would been a youth at the time of the coups which occurred in Fiji in 1987, 2000 and 2006.
[3] DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559.
The applicant claims that his mental health has been adversely affected by the dictatorial ways of the coup makers which he considers have been in control of Fiji over the preceding 30 years; and the racial divisions which have been the cause of such political unsettlement in Fiji even during the years prior to the first coup of 1987. He also claims to be opposed to the government of Fiji which came to power in the coup of 2006 because it is maintaining that all Fijians are equal, and because it is taking away the rights of indigenous Fijians as traditional custodians of the land (including his family-line’s own right to their ownership of their land), and suppressing the traditional leadership system and their culture and traditions more broadly, and because he has seen images of indigenous youths and adults taken by the military and the police after the 2006 military coup and beaten to death. He claims that here in Australia he has been able to speak freely about the government, but that he could not do this in Fiji for fear of arrest.
The first of Fiji’s coups occurred at a time when Fiji’s indigenous population had come to be outnumbered by Fiji’s Indo-Fijian population (the latter being persons descended from immigrants originating from India, who had largely arrived in Fiji during its colonial period as indentured labourers who worked on sugar plantations operated at that time by British and Australian owned companies). Following independence in 1970 this community had grown to be larger than the indigenous population. Even so, the indigenous Fijian population had continued to enjoy a disproportionate hold over political power owing to such factors as the influence of the Great Council of Chiefs (an advisory body composed exclusively of traditional indigenous Fijian leaders) and the manner in which the constitution guaranteed indigenous Fijians an equal number of parliamentary seats to those allocated to the Indo-Fijian community. During the decades which followed independence in 1970 there was also an overarching concern that hardline nationalists within the indigenous Fijian community would react violently if Indo-Fijian dominated government was ever elected.[4]
[4] Naidu V. et al, ‘Fiji - the challenges and opportunities of diversity', MRG, 9 April 2013, CIS36DE0BB8999; Sherlock, S. 'Constitutional and Political Change in Fiji', Parliament of Australia, 11 November 1997, CISFCE36B0452.
In 1987 a coalition with strong Indo-Fijian representation won the general election and, although it announced a ministry composed of an equal number of ethnic Fijians and ethnic Indians, radical nationalist Fijians declared that Fijians had lost control of their own country and began a wave of rallies and marches. In May 1987 the Fijian Army’s Colonel Sitiveni Rabuka staged a coup; ostensibly to forestall an indigenous uprising but which ultimately proved to be aimed at restoring indigenous political dominance and protecting traditional leadership systems like the Great Council of Chiefs. Rabuka quickly yielded power to Fiji’s Governor General, Ratu Sir Penaia Ganilau, with a view to having order restored but when Ganilau announced that he intended to achieve this by putting in place a bipartisan cabinet (which incorporated members of the very government which Rabuka had just deposed), Rabuka staged a second coup in September 1987 and revoked the 1970 constitution and declared Fiji a republic. Rabuka then oversaw the implementation of a new constitution which provided for a House of Representatives in which a majority of the seats would be reserved for indigenous Fijians, while the Great Council of Chiefs would nominate most of the members of the Senate.[5]
[5] Naidu V. et al, ‘Fiji - the challenges and opportunities of diversity', MRG, 9 April 2013, CIS36DE0BB8999; Sherlock, S. 'Constitutional and Political Change in Fiji', Parliament of Australia, 11 November 1997, CISFCE36B0452; Fraenkel, J, ‘Fiji: The politics of conflict reduction’, in Diminishing Conflicts in Asia and the Pacific, Routledge, 2013, CIS25155.
Rabuka resigned from the military to enter politics and he subsequently served as Fiji’s prime minister, and in doing so often proved far more willing to compromise and cooperate with Indo-Fijian politicians and interests than had initially been expected; and a more equitable constitution was promulgated in 1997. The 1997 constitution still reserved more seats for indigenous Fijians (23 seats for indigenous Fijians compared to 19 for Indo-Fijians), but it now allowed for 25 of the seats in the House of Representatives to be open to anyone, and the subsequent 1999 general election was won by a multi-racial coalition led by Indo-Fijian Mahendra Chaudhry who became prime minister. It soon became apparent, however, that a significant level of intolerance remained among Fiji’s hardline nationalists at that time for such a government, and that these persons considered that a change in government could be compelled by force. In May 2000 the indigenous Fijian businessman George Speight led a coup in which Mahendra Chaudhry and members of his government were held hostage for 56 days. Indigenous Fijian youths rampaged through Suva, looting, burning and trashing shops belonging to Indo-Fijians and others. Harassment of rural Indo-Fijian communities, home invasions, beatings and rapes, thefts of household items, farm implements, produce and animals continued for weeks without effective police response.[6]
[6] Naidu V. et al, ‘Fiji - the challenges and opportunities of diversity', MRG, 9 April 2013, CIS36DE0BB8999; Sherlock, S. 'Constitutional and Political Change in Fiji', Parliament of Australia, 11 November 1997, CISFCE36B0452; Fraenkel, J, ‘Fiji: The politics of conflict reduction’, in Diminishing Conflicts in Asia and the Pacific, Routledge, 2013, CIS25155; DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559;
To restore order, the leader of Fiji’s military, Josaia Voreqe (‘Frank’) Bainimarama imposed martial law and briefly abrogated the constitution before restoring it and appointing Laisenia Qarase as interim prime minister. Qarase, a banker, was seen as an apolitical technocrat who could manage Fiji until its next election. Qarase was an also an indigenous Fijian, and subsequent negotiations with the Speight led rebels saw them sufficiently appeased to obtain the release of the hostages. The rebels, however, refused to disperse or to surrender all weapons. As a result, Speight and over 400 of his supporters were arrested in late July. But divisions within the Fijian military (which is predominantly indigenous) saw a further uprising in November 2000 in the form of a mutiny at a barracks in Suva and an attempt to assassinate Bainimarama. Several loyalist and rebel soldiers were killed in the unrest, but the mutiny was quickly contained and the remining rebels arrested.[7]
[7] Naidu V. et al, ‘Fiji - the challenges and opportunities of diversity', MRG, 9 April 2013, CIS36DE0BB8999; Sherlock, S. 'Constitutional and Political Change in Fiji', Parliament of Australia, 11 November 1997, CISFCE36B0452; Fraenkel, J, ‘Fiji: The politics of conflict reduction’, in Diminishing Conflicts in Asia and the Pacific, Routledge, 2013, CIS25155; DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559; DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336; Finin, G. 'One Year into Fiji's Fourth Coup', East-West Center, December 2007,
Following the coups of 1987 and 2000 large numbers of Indo-Fijians emigrated to other countries, reportedly because they felt a sense of personal insecurity in Fiji. It is now estimated that only about a third of Fiji’s population is Indo-Fijian, with the overwhelming majority of the population now being indigenous Fijian.[8]
[8] Naidu V. et al, ‘Fiji - the challenges and opportunities of diversity', MRG, 9 April 2013, CIS36DE0BB8999; DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
A further coup took place in 2006 but in very different circumstances to those which took place in 1987 and 2000. Like the coups of 1987 and 2000 it was led by an indigenous Fijian (this being Bainimarama) against an elected government, and like the coup in 1987 it was a coup enacted by Fijian military personnel (who, along with the police, are overwhelmingly composed of indigenous Fijians). However, whereas the previous coups sought to overthrow governments which were perceived by Fijian nationalists as posing a threat to the political paramountcy enjoyed by the indigenous population, the 2006 coup overthrew a government (this being the government of Laisenia Qarase) which was planning to establish affirmative action programs (to ensure that at least 50 percent of Fiji’s modern economic sector by 2020), and which was planning to announce an amnesty for the perpetrators of the May 2000 coup, and which had attempted to have Bainimarama removed from his position as head of Fiji’s armed forces. Bainimarama alleged that the Qarase government was both corrupt and pursuing racist objectives, and over the course of the year prior to the November 2006 coup it was widely anticipated that Bainimarama would topple the Qarase government if it did not alter its course. The coup was ultimately enacted in November 2006 following the issuance of an ultimatum by Bainimarama to Qarase in the preceding month.[9]
[9] Naidu V. et al, ‘Fiji - the challenges and opportunities of diversity', MRG, 9 April 2013, CIS36DE0BB8999; Lawson, S, ‘Chiefly leadership in Fiji after the 2014 elections’, in: Ratuva, S. & S. Lawson eds. 'The People Have Spoken: The 2014 Elections in Fiji', ANU, March 2016, CIS38A8012633; Finin, G. 'One Year into Fiji's Fourth Coup', East-West Center, December 2007,
In the immediate aftermath of the 2006 coup DFAT reported numerous instances of harassment threats, intimidation and abuses (including instances of serious physical assault) against persons opposed to the 2006 coup, or the perpetrators of the coup. This included deposed politicians and senior officials, also activists (including several youths) and union leaders and journalists, and also some lower profile persons such as citizens who had written letters to newspapers. According to DFAT, the Fijian military at this time was quick to target anyone who had spoken out, such that few people opposed to the military or the Bainimarama’s interim government were then willing to speak out in public.[10] A number of indigenous Fijians died from beatings and torture at the hands of the police and military, and unlike the previous three coups, the 2006 military usurpation of power was widely perceived to be anti-indigenous[11] (notwithstanding that Bainimarama, and much of his administration and almost all his security forces personnel, were themselves indigenous Fijians).
[10] DFAT, 'Country Information Report No. 07/15: Coup related harassment, threats, and human rights abuses', 13 February 2007, CX171169; and see: HRW, 'Letter to Interim Prime Minister Voreqe Bainimarama and President Ratu Josefa Iloilo of Fiji', 5 February 2007, CX170544.
[11] Naidu V. et al, ‘Fiji - the challenges and opportunities of diversity', MRG, 9 April 2013, CIS36DE0BB8999.
The Bainimarama led government, which was known as the interim government (positioning itself as preparing Fiji for a return to democracy once constitutional reform had been enacted) then undertook a program of reform aimed at reducing the role of ethnicity in Fiji’s politics; including by introducing the 2013 Constitution which abolished various measures which gave paramountcy to the Fiji’s majority indigenous population (the iTaukei), including race-based voter rolls and race-based quotas on parliamentary seats, and he also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Great Council of Chiefs (considered the paramount symbol of indigenous Fijian traditionalism).[12] It also sought to enact land reform. In Fiji some 90 percent of all land is collectively owned by indigenous Fijians communities. The interim government introduced changes to ‘democratise’ land ownership. Beginning in 2009, a series of new laws and amendments were introduced to give the government increased control over deciding the leasing agreement process. The proportion of a mataqali (agricultural family groups, or clans) required to approve of a lease agreement was reduced from 80 per cent to 60 per cent; and lease payments were now paid equitably to all members of the mataqali, where previously the traditional chiefs received a substantially larger share.[13]
[12] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336; Lawson, S. 'Chiefly leadership in Fiji after the 2014 elections', in: Ratuva, S. & S. Lawson eds. The People Have Spoken: The 2014 Elections in Fiji, ANU, March 2016, CIS38A8012633.
[13] DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559; DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787; Bhim, M. 'Stifling Opposition: An Analysis of the Approach of the Fiji Government after the 2006 Coup', ANU School of International, Political and Strategic Studies, June 2011, CIS29380.
Even so, the key features of Fiji’s land ownership system remained in place, and have remained in place up to the present day, such that land which is communally owned by iTaukei indigenous Fijian communities cannot be bought or sold, only leased, and the only land which can be purchased privately in Fiji (whether by indigenous or non-indigenous Fijians) is the small amount of freehold land (this amounts to around only three percent of the land in Fiji, with the remaining six percent being government controlled land). This has remained the case all the way up to the present day, and many Indo-Fijians believe that they face discrimination by the limits on their ability to own land and their consequent dependency on leased land from indigenous Fijians. Notwithstanding this, many indigenous Fijian landowners believe that the rental formulae prescribed in the national land tenure legislation discriminates against them as the resource owners.[14]
[14] DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559; DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787; DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
It was reported of this period that many ethnic Fijians considered the Bainimarama regime was enacting policies that were dismissive towards Fijian institutions and protocols, including its: altering the formula of land rent distribution, and its abolishing the Great Council of Chiefs, and using ‘Fijian’ as the name for all Fijian citizens irrespective of ethnicity, and appointing the chairmen of provincial councils, and dismantling many race-based affirmative action programs.[15] Even so, Bainimarama’s FijiFirst party went on to win the September 2014 and November 2018 elections with support from both indigenous Fijians and Indo-Fijians, and defeating the then principal opposition party, the Social Democratic Liberal Party (SODELPA), which promised that it would turn back many of and Bainimarama’s reforms, and whose supporters were largely indigenous Fijians.[16]
[15] Lal, B.V. 'Fiji Indians and the Fiji general elections of 2014: Between a rock and a hard place and a few other spots in between', in: Ratuva, S. & S. Lawson eds. The People Have Spoken: The 2014 Elections in Fiji, ANU, March 2016, CIS38A8012633; and: DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787.
[16] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336; MacWilliam, S. '"Not with a bang but a whimper': SODELPA", in: Ratuva, S. & S. Lawson eds. 'The People Have Spoken: The 2014 Elections in Fiji', ANU, March 2016, CIS38A8012633.
Both elections were judged to be credible by the Multinational Observer Group led by Australia;[17] though it is plausible that some Fijian may take a different view given how in the lead up to the September 2014 elections the Bainimarama interim government brought charges of corruption against some opposition leaders, including Qarase, to prevent such opposition leaders from running in the 2014 election;[18] and given that in the aftermath of the 2014 elections, the then opposition alleged that there had been irregularities in the ballot boxes.[19] Further, during this period it was also the case that free speech monitors like Freedom House continued to be concerned by the manner in which the vaguely worded ‘Media Industry Development Decree’ banned reporting critical of the government or harmful to ‘national interest public order’, and was sometimes made use of by the interim government, and later the elected Bainimarama’s FijiFirst government, to stifle press criticism by bring charges against some of its critics in the media.[20] In April 2015 DFAT assessed of Fiji that some uncertainty remained about the permissible limits on public commentary, such that high-profile public figures (including the leaders of organisations which might be seen to challenge the government’s authority or undermine its legitimacy) remained at risk of arrest or harassment for publicly criticising the then government.[21]
[17] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
[18] DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559.
[19] "Parties reject result", Fiji Times, The, 19 September 2014, CX1B9ECAB11313.
[20] 'Freedom in the World 2015 - Fiji', Freedom House, 15 April 2015, NG5A1E6BC195; 'Freedom in the World 2016 - Fiji', Freedom House, 23 August 2016, NGE43874C476; 'Freedom in the World 2018. Fiji', Freedom House, 05 October 2018, NGED867A610043; 'Freedom in the World 2019. Fiji', Freedom House, 04 July 2019, 20190809095236.
[21] DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559; DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787.
This noted, Freedom House consistently reported of events in Fiji between 2014 and 2018 (that is, over the four years prior to when the applicant made his September 2018 claims) that: There were no confirmed reports of government restrictions on private discussion on political matters or other sensitive topics.[22] Further, in DFAT’s April 2015 and September 2017 reports it was assessed that for most activists engaging in public protests, and for most journalists, and members and leaders of opposition parties, the level of risk of their facing any harm was moderate to low.[23]
[22] 'Freedom in the World 2015 - Fiji', Freedom House, 15 April 2015, NG5A1E6BC195; 'Freedom in the World 2016 - Fiji', Freedom House, 23 August 2016, NGE43874C476; 'Freedom in the World 2018. Fiji', Freedom House, 05 October 2018, NGED867A610043; 'Freedom in the World 2019. Fiji', Freedom House, 04 July 2019, 20190809095236.
[23] DFAT, ‘DFAT Country Report: Fiji’, 14 April 2015, CISEC96CF1559; DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787.
Likewise, the broader evidence strongly suggests that over the recent decade ordinary Fijians, including indigenous Fijians and indigenous Fijian youth, have felt able to voice their criticism of the government safely not just in private but publicly, and the evidence indicates that large numbers of such people have done so without coming to any harm. For, since the time of the 2014 elections, commentators have reported that ordinary Fijians have enjoyed freedom to publicly criticise the government on social media; and it was reported of Fiji’s 2014 general election that (in an environment where the traditional media was restricted) social media had become the ‘Fiji election battleground’.[24] By 2017 DFAT reported that social media was becoming a significant forum for political discussion in Fiji, with approximately 440,000 Facebook users and an active Twitter and blogger community (this notwithstanding a 2016 warning from Bainimarama that social media and freedom of speech must not be misused to cause division and upset).[25]
[24] Vakaoti, P. ' Fiji elections and the youth vote—token or active citizenship?’, in: Ratuva, S. & S. Lawson eds. 'The People Have Spoken: The 2014 Elections in Fiji', ANU, March 2016, CIS38A8012633.
[25] DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787.
The contrasting situation (between the situation for high-profile persons, and the broader community) was in evidence in September 2017 when six prominent figures (the group included three leaders of prominent political parties, including two former prime ministers, an NGO leader, and a trade unionist) were detained and questioned by police after taking part in a panel discussion hosted by a Suva-based NGO to discuss views critical of Fiji’s 2013 Constitution. However, social media criticism of these arrests received no adverse attention;[26] and it was reported that while the aforementioned high-profile persons were in custody, a growing group of young Fijians gathered outside the police station and tweeted #FijiCrackdown and live-streamed their political views, shared updates, videos and tags, and engaged a larger audience of concerned Fijians both in Fiji and abroad.[27]
[26] 'Through social media, Fiji's youth challenge the political elite', Interpreter, The (Lowy Institute for International Policy), 20 September 2016, CX6A26A6E9457; DFAT, ‘DFAT Country Information Report: Fiji’, 27 September 2017, CISEDB50AD5787.
[27] 'Through social media, Fiji's youth challenge the political elite', Interpreter, The (Lowy Institute for International Policy), 20 September 2016, CX6A26A6E9457.
The applicant’s September 2018 written claims gave no indication he is anything other than a low profile person; and while he indicated in these claims that since arriving in Australia he had felt able to speak freely about the government, he gave no indication that he had any interest in anything like attending protests, or even in giving public expression to his views on social media or by some other means. At the most, the applicant’s September 2018 written claims suggested that he had an interest in speaking critically about Fiji’s government in private conversation rather than in a public forum of some kind; and while it was plausible that even such a person as this might have felt fearful of engaging in such conduct in the immediate aftermath of the November 2006 coup, and while such a person might also have been caused a level of fear and stress by the manner in which some indigenous Fijians who were critical of the government (including even lower profile persons such as citizens who had written letters to newspapers) were arrested and beaten during this period, it is difficult to believe (given the country information summarised above) that the applicant would have continued to hold such fears beyond 2014 and up to the time of his September 2018 written claims.
In May 2022 DFAT reported of Fiji that it had not observed a strong pattern of interference against low-level attendees of protests (though protest leaders were more likely to be charged), and assessed that protesters face a low risk of official discrimination, though discrimination was not impossible, and there was a moderate risk of violence in the form of police brutality. In this regard, DFAT reported that police violence was often reported in the media and by human rights groups, and in-country sources told DFAT that assaults in custody occur, with the situation being worse outside of cities. Convictions had often relied on confessions extracted through beatings, but DFAT understood that the situation was improving with courts dismissing cases that relied on evidence obtained through violence.[28]
[28] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
In May 2022 DFAT assessed that that opposition political parties and their members experienced a low risk of official violence but noted that discrimination in the form of questioning or restriction on activities was possible. DFAT assessed that journalists are generally at a low risk of official discrimination or violence, but also found that that actions against them, including for alleged breaches of the law or by rogue police, were possible and as a result some self-censorship may occur among journalists. In contrast to this, DFAT assessed that social media users who criticised the government faced a low risk of official discrimination (and that if there were consequences for online speech these were more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration). DFAT assessed that the risk was much higher for high-profile individuals; but a person of low profile posting anonymously was unlikely to attract official attention.[29]
[29] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
In May 2022 DFAT reported that Fiji was generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians.[30]
[30] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
Further, in August 2023 reported that following Fiji’s December 2022 general election a coalition of three parties (The People’s Alliance, National Federation Party and Social Democratic Liberal Party), led by Sitiveni Rabuka had formed a government with Rabuka as prime minister. DFAT noted that this ended the prime ministership of Josaia “Frank” Bainimarama who had assumed leadership in Fiji following a coup in 2006, and that since the formation of the new government, there had been no significant political unrest or deterioration of government functions, and the political situation in Fiji remained stable. It was also reported that: FijiFirst’s political influence was diminished by the suspension (and later resignation) of opposition Leader Frank Bainimarama after he made “seditious” comments in Parliament, contrary to parliamentary Standing Orders, and that FijiFirst party wields a similar level of political influence/power to that of an Australian parliamentary opposition. DFAT also reported that it was not aware of any reports of former prime minister Bainimarama or those loyal to him or his party, or the military, pursuing nationals who publicly opposed him or his party since the change of government in December 2022.[31]
[31] DFAT, ‘Fiji Country Information - Political update’, 2 August 2023, 2023080311203.
As noted above, the applicant’s September 2018 written claims gave no indication that he was anything other than a low-profile figure, or that his interest in speaking critically about Fiji’s government (and in particular about the previous Bainimarama led government) went beyond doing so in private conversation (rather than in a public forum of some kind). Given this, The evidence summarised above strongly suggests that the applicant would not face a real chance or a real risk of any harm were he to engage in such conduct after returning to Fiji, or that he would face a real chance or a real risk of any harm for reason of his political opinion and/or his being an indigenous Fijian more broadly, or that he would face a real chance or a real risk of any harm with respect to his safety more broadly.
In May 2022 DFAT reported that the iTaukei are now the majority ethnic group in Fiji, and that they enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. DFAT reported that the issue of land rights remains controversial in Fiji, and that some iTaukei feel discriminated against, and a sense of economic or political marginalisation because of such matters.[32] But it is not apparent from DFAT’s reporting or the broader reporting discussed above that these matters or any other circumstances in Fiji are actually the cause of any discriminatory harm (let alone anything that could be consider serious or significant harm) for the indigenous Fijian community (or indeed that indigenous Fijians are at risk of experiencing any discriminatory harm other than encountering low-level societal discrimination in the form of racist stereotypes; and the applicant gave no indication that such racist stereotypes were a concern for him).[33]
[32] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
[33] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
In such circumstances the evidence strongly suggests that the applicant would not face a real chance or a real risk of experiencing harm in Fiji (whether physical or mental and which involved systematic and discriminatory conduct) on the basis of his being indigenous Fijian (iTaukei), let alone of any kind of harm which would amount to serious harm or to significant harm, whether for reasons relating to land ownership/management matters, or his freedom to engage in expression of cultural traditions and identity, or in terms of being able to engage in democratic processes such as voting in elections, or seeking employment or accessing services, or for any other reason. Further, in May 2022 DFAT reported that although counselling services are not available in more remote areas of Fiji, and although there is a lack of mental health services generally, there is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services.[34] Broader reporting confirms the availability of counselling services (for people experiencing mental health concerns) in areas of Fiji located near population centres like Nadi (which is the area near to which the applicant’s village is located).[35] This strongly suggests that the applicant would not face a real chance or a real risk of being unable to access counselling services in Fiji in order to manage such mental health issues as he might experience.
[34] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
[35] 'Mental Health', Ministry of Health & Medical Services, Government of Fiji, 23 December 2021, 20211223124229; Qalubau, S. ‘11,339 Calls Made By Empower Pacific To COVID-19 Affected’, Fiji Sun, 20 June 2022, ; Bolatagici, L. ‘Psychological support – Empower Pacific provides counselling and social services to affected Fijians’, Fiji Times, 29 September 2021, ; Empower Pacific, ‘Counselling’ ; Kumar, W. ‘Lifeline Fiji launches its new toll-free number’, 11 September 2020, ; Talebula-Nuku, W. ‘Lifeline Fiji Is A Beacon Of Hope’, Fiji Sun, 6 November 2023, ; Lifeline Fiji, ‘About Us’, ; MHMS Fiji, ‘Mental Health services highlighted at GP conference’, June 2016,
November 2023 invitation to appear before the Tribunal
In November 2023 the Tribunal wrote to the applicant (via his representative) and advised him that it had considered the information before it but was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. The applicant confirmed that he would attend the hearing and that his representative would not be attending, but that his representative would be providing a written submission beforehand.
November 2023 written claims
A submission was received some days later. This included a covering statement from the applicant’s representative. This submitted that:
·
The applicant was born in Fiji and has lived in [Town] on the main Island of Viti Levu for the most part of his adult life. He has had multiple travels in and out of Australia from
[December] 1991 to [April] 2018, and his last arrival in Australia was [in] June 2018. Although it may not seem like the applicant’s case fits the criteria for refugees at first glance, it is important to highlight the complex circumstances he would face if he returned to Fiji.
· The applicant’s mental health has been severely impacted by the political unrest and the public discomfort that is prevalent in Fiji. He still has concerns about safety arising from the frequent military takeovers and the lack of adherence to democratic rights and principles. The applicant believes that the prospects for the future of Fiji are bleak due to Fiji’s ongoing cycles of political unrest and instability.
· These disturbing developments began in 1987 with two coups and continued with more upheavals in 2000 and 2006. Political unrest was exacerbated in the 2000 coup when civilian George Speight led an uprising that resulted in the then-elected Prime Minister Mahendra Choudhary and the majority of his cabinet being held captive for an incredible 56 days. In 2006, another coup was carried out by Commodore Frank Bainimarama, who was the Commander of the Republic of Fiji Military Forces at the time. This event also contributed to Fiji’s ongoing cycles of political unrest and instability.
· The applicant has experienced the suppression of his traditional rights, such as freedom of speech and expression because he is an Indigenous Fijian. He believes that his freedom to express concerns without fear of retaliation or arrest had been curtailed by the past government's actions. He believes that his iTaukei rights are not guaranteed despite the change of government in Fiji in last year’s (2022) election in which former coup leader Mr Sitiveni Rabuka was appointed the Prime Minister of Fiji.
· He has experienced anxiety and depression for the last ten years, which he primarily attributes to the upsetting events in Fiji’s political platform which has indirectly affected the quality of his life and wellbeing. However, because he has had access to counselling and a safer environment, his time in Australia has significantly improved his mental health.
· He fears that, if he returns to Fiji, the systemic oppression that the itaukei people experience in Fiji will worsen his mental health issue and put his safety and welfare in danger, should there be another political upheaval in Fiji. He humbly requests that consideration for asylum should be given with compassion due to the severe psychological damage he has suffered and the traumatic events he has witnessed personally and via Fijian media outlets such as radio, television and print.
· While hard substantial evidence of the applicant’s claims may be lacking, he assures the Tribunal that his claims could be independently verified as genuine testimonies from appropriate and relevant people who are acquainted with similar circumstances in Fiji.
I note, with regard to the final aspect of the submission, that at no point did the applicant request that the Tribunal should take evidence from any specific persons. He was, nevertheless, given the opportunity to provide any further evidence he wished following the hearing.
The above submission was also accompanied by a further written statement from the applicant. In this, he submitted that:
· Political unrest, media gagging, abuses of human rights, and persistent suppression of Indigenous rights were some driving factors that forced me to leave my country Fiji in pursuit of security and safety.
· I have struggled with depression and anxiety for the last ten years, causing me great emotional distress. I have lived in constant fear and uncertainty about my future because of the continuous political unrest in Fiji, which has been marked by frequent military takeovers and the absence of true democratic freedoms.
· As an Indigenous person of Fiji, I have witnessed firsthand how our traditional rights such as the freedom of speech and expression were being systematically suppressed. I had been living in constant anxiety because of the government's control over the media and the repercussions dished out to protestors and nonconformers.
· I have been a staunch supporter of human rights and our traditional Fijian values, which the government had persistently refused to acknowledge. Increased stress, psychological damage, and an insistent sense of discomfort have affected my cultural identity as well as the dangers and threats associated with speaking out against the former government.
· I am still haunted by the images of people being brutally treated during the military coup in 2006; which has had a lasting impact on me. My mental state had deteriorated as a result of these experiences, which have caused my sudden angry outbursts in the past. With no other choices available to me at the time in Fiji, I came to Australia and applied for protection where I could live without having to worry about being scared all the time and make a constructive contribution to society.
· I can honestly say that my mental health has greatly improved since I have been living in Australia, where I have also received support and counselling. I plead with the Tribunal to consider my situation, my sincere concern for my safety and the horrendous psychological distress that I had experienced in Fiji.
December 2023 hearing
The applicant appeared before the Tribunal on 1 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant elected to have the hearing proceed largely in English, and to make use of the interpreter whenever he considered this preferable.
Asked about the whereabouts and wellbeing of his family in Fiji he indicated that they were well, and that his children (the applicant has an adult son, and three other children of [school] age) were all residing in his family home which was situated on his clan’s land in his village which about five minutes traveling time from [Town]. He and his former wife had separated, and she was now residing and working in Fiji’s capital of Suva. He had two brothers in Fiji, one of whom was residing in the village while the other had moved to reside on nearby freehold land with his family. The applicant indicated that for the past six months he had been working in Western Australia as a trained assistant for [an occupation], and before this he worked in New South Wales in the construction industry.
Asked if he had any fears with respect to returning to Fiji, the applicant said that he did because the fear was still there, and the situation in Fiji had affected him mentally and, although Fiji was now a democracy again, anything could happen and the situation could change again, just like with all the coups that had happened over the years, and this was the main reason why he did not want to go home.
Asked if he had ever seen a doctor or a counsellor about his mental health concerns the applicant said he did not do anything like this in Fiji, but after he came to Australia he did some counselling for a few months beginning in 2020 with a [Mr A]. Asked why he had done this, the applicant said that he had had an argument with his then partner here in Australia, and she had filed a report with police who had treated it as a domestic violence complaint even though there had been no violence but just an argument, and after this he had been told to do counselling. Asked if he was saying he had been directed to attend counselling by a court, the applicant said he was. Asked what the counselling involved, the applicant said that [Mr A] provided him with advice about how to manage choices in terms of outcomes. The applicant said that after a few months [Mr A] had written a report which said he (the applicant) was improving, and after this he was no longer required to attend to attend counselling. He then had to do six to 12 months of monitoring with [Ms B], a community service officer, but because [Ms B] was happy with his progress this monitoring ended after just six months.
Asked if he ever saw any other counsellors or doctors or anyone else other than [Mr A] about his mental health, the applicant said that he had not, with the exception of having enrolled during the recent year with a plant-based medicine service (the [Service]), and where he was being looked after by a [Dr C] and prescribed medical cannabis. Asked what he was being treated for by the [Service], the applicant said: depression, and anxiety, and chronic pain. Asked what chronic pain he experienced, the applicant said he was affected by chronic back pain. He said this was back pain and it mostly affected him at night when he was trying to sleep, and sometimes he was overthinking things which might have been from depression or anxiety, and that the [Service] treatment helped him a lot with sleeping.
I discussed with applicant that it was among his core claims that he would face mental health problems if he returned to Fiji, but that he had never provided any medical evidence from a medical practitioner to establish that he had problems of this kind, or that such problems were the result of his experiences in Fiji. I explained that it might be difficult for me to accept his claims about having had mental health problems of this kind if he did not provide the Tribunal with medical evidence about his having had mental health issues, and which indicated that these were caused by the situation in Fiji. The applicant said he would provide the report which had been written by the counsellor [Mr A], and that he would also ask for a letter from his doctor at [Service].
Following the hearing, the applicant provided several documents with respect to the above concerns. The first, dated 17 August 2021, was issued by the counsellor, [Mr A], and confirms the start of an assessment and an ongoing counselling psychological intervention for the applicant at that time. The second is an ‘interpretive report’ by [Mr A] for the applicant dated 15 March 2021. The report confirms that the applicant attended counselling from August 2020 to March 2021, and I accept that this occurred. The report indicates that the counselling was provided to assist the applicant with depression, grief and loss, anxiety, stress, post-traumatic stress disorder (PTSD), and anger and alcohol issues. I accept that this was the case, and that the applicant was affected by such mental health concerns at the time. The report also indicates that the applicant engaged positively with the counselling he received, and that he worked towards overcoming his mental health issues with the therapies which were provided to him. I accept that applicant did benefit from counselling with respect to the management of his anger issues and mental health concerns.
There is, however, little in [Mr A]’s report to suggest that the applicant has (as per his written claims) ever engaged in suicidal ideation, or that he has ever been violent (whether toward his family members or anyone else). [Mr A]’s report states that the applicant has been engaged in anger management, and that the applicant can be intolerant and insensitive. But there is no indication that the applicant has ever harmed anyone else physically, and it is stated that the applicant has no intention to harm himself or any other person, and that he wants to live his life trouble free and teach his children that violence is not appropriate. The applicant likewise gave no suggestion at the hearing that he had ever been violent towards anyone, or that he was concerned that he might physically harm anyone else or himself. In contrast to his written claims, the evidence in [Mr A]’s report and from the applicant at hearing was limited to references to his being occasionally argumentative rather than violent. While I am, nonetheless, willing to accept that the applicant may have become violent in some instances in past years in Fiji, and thus well before he engaged with the therapies provide to him by [Mr A], it is not apparent that the applicant has been violent in recent years.
The applicant also provided several documents issued to him by the [Service]. The first of these is a patient card issued on 13 September 2023 which indicates that the applicant is an approved medical cannabis patient. The other is a letter issued by a registered nurse at the [Service], and is dated 6 December 2023 and addressed ‘To whom it may concern’, and this states that the applicant has been approved to use medical cannabis by the Therapeutic Goods Administration for ‘symptom management of medical conditions’, with his prescribing doctor being [Dr C]. But no information is provided with respect to what symptoms are being managed, or what medical conditions are affecting the applicant.
Even so, in broader terms it is reported that chronic pain (and in particular back pain), anxiety, insomnia and also depression, are the most common conditions being treated with medicinal cannabis in Australia (notwithstanding that the evidence for the effectiveness of such treatment in managing mental health issues like anxiety is more limited and contested, than is the evidence regarding the effectiveness of such treatment for managing pain).[36] I am willing to accept that since September 2023 the applicant has been prescribed medical cannabis to help him with managing chronic back pain and also depression and anxiety with respect to his sleep.
[36] Berger, M. et al, ‘Medicinal cannabis for the treatment of anxiety disorders’, Australian Journal of General Practice, August 2022, ; Therapeutic Goods Administration, ‘Guidance for the use of medicinal cannabis in Australia: Patient information’, December 2017, ; Mile, J. & E. Worthington, ‘Doctors warn of significant increase in people hospitalised with psychosis after being prescribed medicinal cannabis’, ABC News, 21 July 2024,
At the hearing, I asked the applicant whether there was any medical support which he had received in Australia which he would not be able to access in Fiji. The applicant said that he did not know if he would be able to access either counselling or the [service] in Fiji. I put it to the applicant that it was my understanding that he would be able to access counselling services in Fiji. I asked if he would approach such services if he felt he needed them. He said that he probably would. Given this, and given that as noted above the availability of counselling services in the area of [Town] is confirmed by country information, I am not satisfied that there is a real chance that the applicant would not be able to access counselling services upon return to Fiji to assist with managing his mental health; and I also note that the applicant gave no indication that he would be dissuaded by any other factors (such as a sense of social stigma) from accessing such services.
With respect to the issue of medical cannabis (which was not an issue which the applicant had raised prior to the hearing), I put it to the applicant at the hearing that I was not sure of what the legal status of medical cannabis might be in Fiji, but there was also the alternative that he might seek treatment from a doctor who could prescribe him with some other form of medication. The applicant said that he did not want to be on other medications which was why he had tried the [Service]. Asked why this was the case, the applicant said that he was concerned about side effects, and the possible costs involved.
I have subsequently considered the unfolding reporting on the situation in Fiji with regard to medical cannabis. To date, the available reporting[37] indicates that Fiji’s government is planning to legalise the lawful cultivation of medical cannabis for export to foreign markets, but not for domestic prescription, sale and consumption. This being the case, medical cannabis will not be available to the applicant in Fiji. Such a situation would be unfortunate, but as it would result from a law of general application under which the use of cannabis for any purpose is proscribed,[38] and as it is not apparent that such laws are put in place with the intention of causing a person such as the applicant any pain or difficulties (the intent of the Fijian authorities in maintaining such laws, whether wrongly or rightly conceived, has been to protect the health and wellbeing of all persons in Fiji),[39] and as any pain or difficulties as the applicant would experience in such a regard would not involve systematic and discriminatory conduct, such a situation would not result in the applicant’s having a well-founded fear of persecution on this basis.
[37] Narayan, V. ‘Fiji Council of Churches endorses the legalization of marijuana but only for pharmaceutical or medicinal purposes’, Fiji Village, 21 April 2023, ; FijiLive, ‘Medicinal cannabis industry to be finalised in 2024’, 28 December 2023, ; FBC News, ‘More analysis needed on medicinal cannabis cultivation’, 10 April 2024,
[38] 'Illicit Drugs Control Act 2004', Fiji Government, 25 June 2004, CISD49C2F4565; 'Laws Of Fiji. Chapter 114 Dangerous Drugs', [Government of Fiji], Government of Fiji, 04 September 2014, 20191211140859.
[39] 'Substance abuse causing domestic violence in Fiji', Australian Broadcasting Corporation (ABC) (News), 21 June 2012, CX305123; Cava, L. ‘Concern over substance abuse’, Fiji Times, 19 September 2017, ; Devi, S. ‘Centre to tackle rising drug-related issues’, Fiji Times, 16 June 2023, ; Fiji Ministry of Health, ‘Mental Health Wellness’, ;
In any event, and even if unable to access medical cannabis, I am not satisfied that the applicant would face a real chance of being without a means of managing any mental health issues which might arise for him since I consider that the applicant would, as has already been noted, not face a real chance of being without access to a counselling service.
With respect to managing his chronic pain, and associated difficulties sleeping, I note that the applicant has indicated that he would prefer not to engage with other forms of treatment such as medication because of his concerns about side effects and possible costs involved. I note, however, that healthcare is provided free to the patient in Fiji,[40] and that medicines are either provided for free or at a subsidized cost (and, in addition, since 2015 the government of Fiji has run the Free Medicines Programme initiative under which Fijians earning less than FJD20,000 per annum can access medicines prescribed by a licensed medical practitioner free of charge from any government hospital pharmacy, dispensary or selected private retail pharmacy).[41] I am not satisfied that the applicant would face a real chance of being unable to access such treatment on the basis the cost. This noted, there is the possibility that such treatments might occasionally be unavailable in Fiji due to the manner in which Fiji is sometimes undersupplied with some medications.[42] This, however, is a problem faced by Fiji’s population as a whole owing to the challenges faced by Fiji as a middle-income country with respect to procurement of medication from overseas suppliers. Were the applicant to experience problems either because of this, or because he chose not to make use of such treatments because of his concerns as to possible side effects, such a situation would not involve systematic and discriminatory conduct, and so would not amount to a well-founded fear of persecution.
[40] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.11-2.12; International Labour Organization (ILO), 'Extending social health protection: Accelerating progress towards Universal Health Coverage in Asia and the Pacific', 7 December 2021, 20220420112452, p.168.
[41] ILO, 'Extending social health protection: Accelerating progress towards Universal Health Coverage in Asia and the Pacific', 7 December 2021, 20220420112452, pp.166-167.
[42] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.11-2.12; ILO, 'Extending social health protection: Accelerating progress towards Universal Health Coverage in Asia and the Pacific', 7 December 2021, 20220420112452, pp.169-170; Shukar, S. ‘Drug Shortage: Causes, Impact, and Mitigation Strategies’, Frontiers in Pharmacology, 9 July 2021,
As for the causes of the applicant’s mental health concerns, there is nothing in the medical documents which the applicant has provided in support of his claims that gives any express indication that these are the result of larger political events in Fiji. [Mr A]’s report on the applicant does go into some detail about the causes of the applicant’s mental health concerns, and it does indicate that the applicant is affected by past trauma. But what the report says in this regard it that the applicant is a family man who has been missing his family back home (and that being a cultural man who like to go to church every there are cultural and religious factors which may affect him with respect to such trauma), and that the applicant tends to worry about small matters, and is a perfectionist who is rather dissatisfied with himself, and unhappy about what has happened to him in his life, and that he is concerned about being accepted by others. [Mr A]’s report thus suggests that the trauma which the applicant has experienced, and which contributes to his mental health concerns, has more to do with personal matters in the applicant’s life (in particular his separation from his family members in Fiji) than with larger political matters in Fiji. [Mr A]’s report gives no indication that the applicant expressed any concern during his counselling about larger political issues in Fiji such as coups and political turmoil, or the disruption of democracy, or that his indigenous rights and traditional values have been suppressed along with human rights like freedom of speech and press/media freedom, or even of his having been affected by having seen images of indigenous youths and adults taken by the military and the police after the 2006 military coup and beaten.
At the hearing I asked the applicant if he could provide some specific information about any problems or difficulties he had experienced while in Fiji because of its coups. His initial response was to detail how he had had problems after the 2006 coup because he had been running a [business] at the time. He said his [business] had been dependent on international tourism and, after the coup and all the arrests, most of the international tourists fled the country, and other tourists who had planned to travel to Fiji cancelled, and the loss to him in envisaged earnings was around FJD10,000, and it was a few months before business returned to normal. He said that it affected him mentally and caused him to be depressed because he was unsure how his family was going to survive during that period. I accept matters of this kind (which I note did not involve systematic and discriminatory conduct) were a concern for the applicant at the time, and that they may have contributed to his subsequent mental health concerns (though I consider that the evidence suggests that in more recent years the more significant determinant of the applicant’s mental health concerns has been his separation from his family in Fiji).
Asked whether, beyond such financial issues, there was any other reason why the 2006 coup caused him any mental health issues, the applicant said that it did in that he felt fearful because during this time army trucks were coming around and picking up people in the villages and taking them and torturing them, and he was afraid for his family and that this would happen to him one day. Asked if he knew any of these people who were taken, he said that he did not and that it just came out in the news media, such as in the Fiji Sun, but that he did not know them personally. I accept matters of this kind (which I note did not involve systematic and discriminatory conduct toward the applicant himself) were a concern for the applicant at the time, and that they may have contributed to his subsequent mental health concerns (though, again, I consider that the evidence suggests that in more recent years the more significant determinant of the applicant’s mental health concerns has been his separation from his family in Fiji).
Asked if there were any other reasons why he did not want to return to Fiji, the applicant said that his fear was still there because even though Fiji had returned to democracy the prime minister was now Mr Rabuka who had been one of the coup leaders and so anything could happen at any time. Asked whether there was anything he now did in Australia which he felt he might not be able to do in Fiji because he would come to harm, the applicant considered this and responded that here in Australia he had a good job, and in Fiji they did not have the same employment, and in Fiji he would have to go back into job hunting, and it is very hard to get employment these days in Fiji, and the cost of living was now very high. Asked if this was the situation for everyone or whether this would be the case for him in particular, the applicant said that it was difficult for everyone but would be particularly difficult for him too. Asked to explain, he said that it would be difficult for him to re-start his [business] because other people in his village would feel envious toward him for returning after getting good employment in Australia. I asked the applicant whether instead of re-starting his [business] he could work in Fiji in construction as he had been working in this area while here in Australia. The applicant said that he supposed he could.
I note, with regard to the above, that In May 2022 DFAT reported that 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.[43] Nevertheless, I accept that it is not implausible that persons in the applicant’s village might be resentful toward the applicant on his return because he has been earning higher wages in Australia than are available in Fiji; and that such persons might prove uncooperative in assisting the applicant were he to attempt to re-start his [business] after he returned to Fiji . Even so, I am not satisfied that there is a real chance that the applicant would face problems of this kind more broadly in Fijian society, or that he would face a real chance of being unable to find employment and earn a livelihood given that it is reported that there is high demand in Fiji for construction workers (including with respect to the vicinity of [Town]) owing to an ongoing labour shortage created by large numbers of Fijians going abroad to earn higher wages (the unemployment rate in Fiji has been consistently below five percent over recent years).[44] Given this, and given that the applicant gave no indication that he considered the treatment he might receive from other villages to be problem for him other than in terms of re-starting his [service], I am not satisfied that the applicant would face a real chance serious harm in this regard, let alone serious harm.
[43] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336.
[44] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336; Krishant, N & A. Narawa, ‘$200 million worth of construction about to commence in the Nadi to Lautoka corridor and there are not enough construction workers – AG’, Fiji Village, 24 June 2022; ; Nasiko, R. ‘2023-2024 National Budget | Plans for labour shortage’, Fiji Times, 7 June 2023, ; Fiji Ministry of Finance, ‘Employment & the Labour Market’, February 2024,
In recent years the US Department of State has reported of Fiji (including of Fiji in 2023) that the minimum wage did not typically provide a decent standard of living for a worker and family.[45] I note, however, that the situation has been improving. The minimum wage in Fiji was formerly FJD2.68 (about AUD1.75) per hour and had been raised progressively such that it became FJD$4 per hour in January 2023.[46] In September 2023 the Fiji Trades Union Congress called on the government to raise the minimum wage to FJD6 or FJD7 per hour to ensure that workers can earn enough to live a respectable life and be able to meet their commitments in Fiji;[47] and the Fijian government has undertaken to increase Fiji’s minimum wage to FJD$5 per hour by 2025, and to also increase 10 sectoral wages.[48] In announcing these measures the Fijian government explained that the effect of this will be that, for example, a cashier who is currently earning $4.44 an hour will have his or her minimum wage increase to $4.94 from August 2024 and to $5.44 from April 2025, while a foreman in the construction industry on $6.54 an hour in 2024 will have his or her minimum wage increase to $7.54.[49]
[45] USDOS, '2023 Country Reports on Human Rights Practices - Fiji', 22 April 2024, 20240423115757.
[46] Krishant, N. ‘Minimum wage to increase to $4 an hour in four tranches’, Fiji Village, 25 March 2022,
[47] Naivalurua, N. ‘We are looking at anywhere between $6 to $7/hr for minimum wage – Felix Anthony’, Fiji Village, 23 September 2023,
[48] Narayan, V. ‘Increments announced for civil servants, wage earners and MPs, and minimum wage rate to go up to $5 an hour’, Fiji Village, 28 June 2024,
[49] Narayan, V. ‘Increments announced for civil servants, wage earners and MPs, and minimum wage rate to go up to $5 an hour’, Fiji Village, 28 June 2024,
I note also that DFAT has observed that ethnic Fijians (iTaukei) generally have large kinship networks with extended family often providing support when a family member is in need; and even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities.[50] But even allowing for the possibility that the applicant would not receive any additional support from his kinship network, and even factoring in his need to support his children (three of whom are still of high-school age) given the increasing wages and high demand for and shortage of construction workers in Fiji I am not satisfied that there is a real chance that the applicant would face economic hardship that threatens his capacity to subsist, or indeed that he would face a real chance of serious harm of any kind because of his being envied by other villagers, or because of broader matters such as wage levels and/or cost of living challenges (and I note that these latter broader matters would be the determinative matters, and these broader matters would not involve systematic and discriminatory conduct as is required to amount to persecution).
[50] DFAT, ‘DFAT Country Information Report: Fiji’, 20 May 2022, 20220520095336, 2.18-2.23.
Asked if he had any other reasons to fear returning to Fiji, the applicant said that the Tribunal could refer to his written claims. I put it to the applicant that in his written claims he had indicated that he feared being limited in his freedom of expression in Fiji. I asked the applicant if this was true. He said it was. Asked to explain what he meant by this, the applicant said that in Fiji you were unable to express your rights because of the power that the village elders have with matters like business and documentation. Asked to explain, he said that in 2017 he had problems obtaining a permit he needed to operate his [service], and that to get this he had first to obtain a letter from the village trustee or committee member, but because these people had bad hearts and envied you they would demand money, and in this case asked him to pay FJD5,000 for the letter. I asked if he had had any avenue of complaint. He said he did write a letter of complaint to the government, but nothing happened because they gave up. Asked what was meant by this, the applicant said the matter was resolved because he was given the letter by the village elders without having to pay the FJD5,000, and that he thought what had occurred was that the village committee was in fear because they knew he had complained to someone higher up. He said he had spoken to his old colleague back in Fiji and the same problems were still occurring.
I put it to the applicant that from what he had told me I might conclude that he had in fact been able to express himself in Fiji and that he had done so without being harmed. I explained that given this I might also not be satisfied that he was at risk of any harm in Fiji with respect to concerns about expressing himself. I asked the applicant whether there was anything further he would like to say about this. He said he did not, and that it was all good. I asked if there was anything else he wanted to speak his mind about in Fiji but felt he could not. The applicant said: I probably think that is it. Given this, and while I accept that the applicant may engage in writing complaints to the government about more workaday issues relating to the behaviour of his village elders, I am not satisfied that the applicant has any interest in engaging in any kind of public criticism of the government in such a fashion.
I then asked the applicant if he would explain what was meant in his written submission where it was stated: I have been a staunch supporter of human rights and our traditional Fijian values, which the government had persistently refused to acknowledge. Increased stress, psychological damage, and an insistent sense of discomfort have affected my cultural identity as well as the dangers and threats associated with speaking out against the former government. The applicant responded that this was referring to how when Bainimarama came into power he suppressed most or nearly all Fijian rights and made them give these up to other ethnic groups in Fiji. Asked what rights he was referring to specifically, the applicant said that he was referring to indigenous and cultural rights as indigenous Fijians. He said he was referring to their traditional rights, and numerous rights were suppressed, and the ones he was referring to specifically was their right to sell and lease their land whenever they wished. The applicant was no more specific than this. Asked if he was referring to his own clan’s land, or to the government management of land more broadly, he said: a bit of both. I asked if he was able to provide any evidence to establish what was happening with respect to his own clan’s land, or about the matter more broadly. He said he would see if he could. I asked if there had been any protests about this which he was aware of. He said that there had been protests last year and that the government just ignored these. Asked if anything happened to the protestors, he said that nothing happened to them. I asked if he had ever been involved in protesting about such matters either here in Australia or in Fiji. He said he had not. Asked if there was anything else he wanted to say about this, he answered no, and that it was all good.
I then informed the applicant that I needed to raise with him some matters which subject to his response might raise questions about the credibility of his claims. I noted that, on the one hand, it was his claim that going back to Fiji would be difficult for him because of mental health problems dating from the time of the coup in 2006, and that going back to Fiji would make these worse. On the other hand, it was apparent from the stamps in his pages of his passport that he had have been back to Fiji six times since 2015 alone, for periods of two to three months, or even 10 months. I asked the applicant to explain why he would have returned to Fiji so often in the past, and why he would have stayed there so long, if really feared that doing so would cause him harm. The applicant responded that he did so because he had four children in Fiji. I asked what his life was like when he returned to Fiji during those visits. The applicant said that he was experiencing mental issues but was able to cope because he was seeing his children, and when he reached the stage when he felt he could no longer cope with these issues he returned to Australia. I asked if his children provided him with support when he was in Fiji, and whether they talked about his mental health problems. He said that they did talk about these things and that his children did help him in that, when he spoke to them, he was at rest and at peace. Asked if he was engaged with a church, he said that he regularly attended a [Church] in Fiji and in Australia. Asked if this helped him with mental health, he said it did a bit. Asked if this would help him if he returned to Fiji he said he supposed it would. I put it to the applicant that given that he had been able to travel back to Fiji so often without coming to any harm, and while being able to manage his mental health, I might not be satisfied that returning to Fiji would put him at risk of harm. Asked if there was anything he wanted to say, the applicant said there was not, and he would provide some written evidence (as noted above, the applicant subsequently provided documents from the counsellor [Mr A] and from the [Service]).
I then put it to the applicant that I had had regard to reporting about the situation in Fiji, and that while this indicated that concerns remained about political stability in Fiji, and while there continued to be incidents of political leaders and prominent persons being arrested for reasons some claimed were politically motivated, and while there were also reports of persons being harmed after being arrested in relation to criminal matters, there was little evidence of persons in Fiji’s broader indigenous community coming to harm for criticising the government, or lodging complaints about local matters like the issuance of letter relating to permits, and that if he had any information to the contrary he should provide this. The applicant indicated that he understood. The applicant was advised that the Tribunal would consider any information which he provided before a decision was made, but that unless he made a request for the Tribunal to delay the decision beyond a specific date that a decision could be made at any time after 15 December 2023.
Aside from the medical evidence (which I have already discussed) the only evidence which the applicant subsequently provided was a copy of a copy of the Fiji’s Bill no 17 of 2021 (this being the bill to amend The Itaukei Land Trust Act 1940, and which is widely referred to as ‘Bill 17’ in news reporting on Fiji). This legislation was introduced by the former Bainimarama led FijiFirst government in 2021 to remove the requirement of obtaining the consent of the iTaukei Land Trust Board for any mortgage, charge, pledge or caveat on a lease or for any such lease to be dealt with by any court of law or under the process of any court of law. At that time its introduction was contested fiercely by opposition parties, public figures, and by individual citizens within the indigenous Fijian land owning community; and it is said to have sparked a debate of controversial proportion on social media, and an online petition which reached over 30,000.[51] This resulted in nine politicians (considered leaders of the opposition parties and indigenous rights advocates) being taken for questioning by police about their criticisms.[52]
[51] Mitchell, J. 'Storm in a teacup', Fiji Times, The, 25 July 2021, 20210727081851; Anthony, M. 'Fiji’s political turmoil: everything you need to know', The Guardian, 04 August 2021, 20210810085140
[52] Rovoi, C. 'Fiji govt urged to scrap plan to amend Land Bill', Radio New Zealand (RNZ), 1 August 2021, 20210806081308; USDOS, ‘Fiji 2021 Human Rights Report’, 2 April 2022, 20220413131329, p.8.
But more broadly, the only evidence of any other individual citizens receiving any adverse attention during the debate and controversy over Bill 17 involved the arrest of a man from Western Fiji for making social media posts which police alleged were “inciting violence"; after he allegedly posted the message calling on members of the i-taukei community to arm themselves and fight members of the Muslim communities and called on those residing in the greater Suva area to detain a senior Government member.[53] I note that the arrest occurred at a time when the northern island of Taveuni had just seen a mosque and a Muslim owned shop set ablaze.[54] Fiji’s police issued a statement that: freedom of speech and expression comes with responsibilities and people need to be cautious about comments that are aimed at inciting civil unrest as it will be investigated; and should not allow their emotions to cloud their judgment when making comments on the proposed Bill.[55]
[53] Anthony, M. 'Fiji’s political turmoil: everything you need to know', The Guardian, 04 August 2021, 20210810085140; Fiji Police Force, "Man Questioned For Allegedly Inciting Civil Unrest", Fiji Sun, 26 July 2021, 20210727084138.
[54] Anthony, M. 'Fiji’s political turmoil: everything you need to know', The Guardian, 4 August 2021, 20210810085140; 'Former Fiji prime minister detained by police over Land Bill comments', Radio New Zealand (RNZ), 27 July 2021, 20210727083024.
[55] Fonua, T. 'Your Land Is Safe: PM', Fiji Sun, 26 July 2021, 20210728084318; 'Former Fiji prime minister detained by police over Land Bill comments', Radio New Zealand (RNZ), 27 July 2021, 20210727083024.
But beyond the examples noted above (the nine politicians, and the man from Western Fiji who had called for violence), it is otherwise not apparent that any individuals were reprimanded for expressing their opinions about the Bainimarama government’s 2021 land reform program; nor has the applicant provided any evidence to indicate that the land belonging to his clan in Fiji was at risk of being sold, or that his clan was experiencing any specific problems in the management of their land as a result of Bill 17 or any other government land management reform. Given this, I do not accept that any such problems have been occurring with respect to the applicant’s clan’s land; and I note that the applicant indicated at the December 2023 hearing that he maintains a family home on his clan’s land and that his children in Fiji are currently residing there.
I accept that the applicant opposes the polices of the former Bainimarama led government with respect to the land management issues, and I accept that the applicant is opposed to the former Bainimarama led government because he (the applicant) considers that this former government was taking away indigenous rights in a more general way (though I do not accept that the applicant actually has any specific concerns in this regard, beyond perhaps suppression of Fiji’s traditional leadership system, and the gagging of the media), and that he may wish to criticise the former Bainimarama led government on such a basis, and that he may also wish to criticise Bainimarama and also Rabuka for having previously perpetrated coups which overturned Fiji’s democratic process. But I do not accept that the applicant has an interest in doing this other than in private conversation. It is, moreover, not apparent that the applicant has engaged in any activism, or that he has ever been a community leader. Indeed, the evidence suggests that he is an ordinary low-profile member of an indigenous Fijian community.
Given this, the current situation since the 2022 election looks broadly favourable for the applicant. For while the applicant may have reservations about the presence in the government or Rabuka, it is nonetheless the case that the Rabuka government is pursuing policies in line with the applicant’s own political outlook in terms of his opposing government control over indigenous land management, and the suppression of Fiji’s traditional leadership system, and the gagging of the media. In April 2023 the Rabuka led coalition government repealed the iTaukei Land Trust (Budget Amendment) Act (known as Bill 17),[56] and in May 2023 the CIVICUS Monitor[57] related that: In a positive step for press freedom, on 6 April 2023, the Parliament of Fiji voted to repeal the Media Industry Development Act (MIDA) which was enacted in 2010 by the government that assumed power through a coup in 2006; and with Prime Minister Sitiveni Rabuka saying that media freedom and freedom of expression are the “oxygen of democracy". It was also reported that the Great Council of Chiefs (regarded as the apex of traditional Fijian leadership) had reconvened for the first time in 16 years.[58] In November 2023 the Fijian Parliament passed the i-Taukei Affairs (Amendment) Act of 2023 to confirm the reinstatement of the Great Council of Chiefs; and Fiji’s Attorney-General stated that it was: the coalition government’s priority to restore the recognition of the Great Council of Chiefs to: ensure that the voice and opinion of our traditional elders are considered when matters concerning i-Taukei people, traditions and culture arises.[59]
[56] ‘Parliament repeals Bill 17’, Fiji Times, 7 April 2023; Waqavakatoga, W. 'Fiji’s tenuous grip on political stability', East Asia Forum, 16 January 2024, 20240131111425.
[57] CIVICUS Monitor, 'Fiji: Repeal of Restrictive Media Law, Reverse of Travel Bans and Other Reform Commitments a Positive Signal for Civic Freedoms', 31 May 2023, 20230619111629.
[58] CIVICUS Monitor, 'Fiji: Repeal of Restrictive Media Law, Reverse of Travel Bans and Other Reform Commitments a Positive Signal for Civic Freedoms', 31 May 2023, 20230619111629.
[59] 'Fiji Parliament approves reinstatement of Great Council of Chiefs', Pacific News Service, 24 November 2023, 20231130101156.
It has been submitted that the applicant’s iTaukei rights are not guaranteed despite the change of government in Fiji in last year’s (2022) election, and I accept that it is foreseeable that a future election, or a realignment of the loyalties within the current coalition government, may return to power government similar to that which governed under Bainimarama and which might re-implement the measures pursued by the Bainimarama government and recently repealed by the Rabuka government.[60] But even if this were to occur, the country information discussed above does not suggest that this would result in a situation where the applicant would face a real chance of harm, let alone of serious harm, and which involved systematic and discriminatory conduct, whether on the basis of how government control over land management might affect the applicant’s clan’s land or the land of some other indigenous community, or on the basis of how the government might seek to reform or abolish a traditional leadership system like the Great Council of Chiefs, or by the manner in which it might seek to restrict media freedom, or in terms of the applicant’s own freedom to criticise the government of the day, or to write letters of complaint to the government about the actions of his village elders, or to give expression to his cultural identity, or to engage in Fiji’s democratic processes, or in some other regard.
[60] RNZ, ‘Fiji's coalition parties at loggerheads after Cabinet minister removed for 'insubordination and disobedience’, 22 January 2024, ; Herr, R. ‘Now an opposition split worsens Fiji’s political instability’, ASPI, 4 June 2024, ; Fraenkel, J. ‘Is the time ripe for constitutional change in Fiji?’, DEVPOLICYBLOG, 9 August 2024, ; Nasiko, R. ‘Political stability’ Fiji Times, 18 September 2024,
It has also been submitted that Fiji’s coups come in cycles, and the applicant has submitted that the very fact that the current prime minister is a former coup leader might lead to a further turmoil or even a further coup. I note, in this regard, that in the immediate aftermath of the formation of the Rabuka led coalition government, there were reportedly concerns within Fiji and overseas about the vulnerability of a coalition government to a coup, owing in particular to Bainimarama's reluctance to concede defeat.[61] The government’s suspension of a number of senior officials and public remarks about constitutional changes prompted the commander of Fiji’s military, Major General Jone Kalouniwai, to express concern refer to the ‘guardian’ role of Fiji’s military (a vague and controversial section of the 2013 constitution that charges the RFMF with responsibility for the ‘well-being’ of Fiji and its people).[62]
[61] Schneider, N. 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244; and see also: O’Brien, P. 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023, 20230605132703.
[62] Waqavakatoga, W. 'Fiji’s tenuous grip on political stability', East Asia Forum, 16 January 2024, 20240131111425; 'Can Fiji keep its democracy in 2023?', East Asia Forum, 03 February 2023, 20230712114936.
But Bainimarama ultimately conceded defeat, and in March 2023 it was reported that Fijian officials, business leaders, citizens, foreign diplomats, and observers were cautiously optimistic that Rabuka's coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji's democratic institutions;[63] this notwithstanding that in February 2023 the parliament’s Privileges Committee had suspended Bainimarama from parliament for three years, after the Deputy Prime Minister alleged that Bainimarama made remarks in parliament that used words denigrating and humiliating to the President (Fiji’s head of state).[64]
[63] Schneider, N. 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244.
[64] O’Brien, P. 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023, 20230605132703.
Given this, and given the absence of any subsequent evidence to suggest otherwise, a further coup in Fiji is currently not part of the reasonably foreseeable future; let alone a coup which would bring into existence circumstances so altered from what they have been in the recent decade in Fiji as to pose a real chance of harm to the applicant for such reasons as a general deterioration in safety and security, and/or his being an indigenous Fijian, and/or his political opinion and his speaking about these and criticising a past or present government in private conversation, and/or his being a collective land owner, and/or his writing complaints about his village elders to the government, or which would cause him harm in some other way involving systematic and discriminatory conduct.
Does the applicant satisfy the refugee criterion for protection?
On the evidence before me I am not satisfied that the applicant would, for the foreseeable face a real chance of experiencing harm of any kind in Fiji (whether physical or mental, and which would involve systematic and discriminatory conduct) on the basis of his being indigenous Fijian (iTaukei), whether for reasons relating to land ownership/management matters, or his freedom to engage in expression of cultural traditions and identity, or in terms of being able to engage in democratic processes such as voting in elections, or seeking employment or accessing health or other services (or for in any other regard). Neither am I satisfied that he would, for the foreseeable future, face a real chance of any harm of any kind in Fiji (whether physical or mental, and which would involve systematic and discriminatory conduct) were he to criticise the government of the day (and/or the previous Bainimarama led government), or that there is a real chance of this occurring for reason of his political opinion and/or his being an indigenous Fijian more broadly, or because he might write letters of complaint to the government about the behaviour of his village elders.
Moreover, even when the above matters are considered cumulatively, along with the applicant’s concerns about his safety in broader terms with respect to the possibility of future coups, and in combination with country information about the broader security situation in Fiji terms of crime and the operations of Fiji’s security forces, and broader social behaviours like racist stereotypes and social stigmas (about which the applicant has expressed no concern), and the applicant’s own concerns about resentment on the part of some of his fellow villagers to persons who have returned to Fiji after earning higher wages in Australia, I am not satisfied that the applicant would, for the foreseeable future, face a real chance of experiencing harm of any kind in Fiji (whether physical or mental, or in terms of limits to his rights and freedoms, or in terms of access to health and other services, in terms of livelihood and subsistence matters) which would involve systematic and discriminatory conduct. I am therefore not satisfied that the applicant has a well-founded fear of persecution.
I accept that it is not impossible that returning to Fiji might nevertheless have a negative impact of some kind upon the applicant’s mental health owing to his concerns about the possibility of a future coup and/or political turmoil, and past matters like the mistreatment of some indigenous Fijians in the immediate aftermath of the 2006 coup, but fear on the part of a claimant does not turn non-persecution into persecution.[65] In any event, and as has been noted above, I am not satisfied that the applicant would be without access to counselling to assist him in managing any such developments (and I note that he would also be returning to reside with his children, and that he would also be able to turn to his church for support with such matters); and in such circumstances (and given that I am not satisfied that the applicant would face a real chance of harm with regard to his safety) I am not satisfied that there is a real chance that such a situation would result in the applicant experiencing serious mental harm, or I his causing himself or anyone else any physical harm.
[65] Prahastono v MIMA (1997) 77 FCR 260; SZALZ v MIMIA [2004] FMCA 275; DJX17 v MICMA [2022] FedCFamC2G 917.
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).
Does the applicant satisfy the complementary protection criterion for 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).
As has been noted above, I accept that upon return to Fiji the applicant will not be able to access medical cannabis owing to a law of general application. But such a situation would not be intended to cause the applicant any harm, and so any harm experienced by the applicant in this respect would not amount to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. Neither am I satisfied on the evidence before me that such a situation would result in the applicant being arbitrarily deprived of his life. It would not result in his suffering the death penalty.
As has been noted above, other forms of legally available medicated pain relief might occasionally be unavailable in Fiji due to the manner in which Fiji is sometimes undersupplied with some medications, but this is a problem resulting from the economic challenges faced by Fiji as a middle-income country in terms of procurement planning and capacity. Were the applicant to experience problems managing his chronic pain (and his associated problems with sleeping) because of this, or because he chose not to make use of such treatments because of his concerns as to possible side effects, such a situation would not be intended to cause the applicant harm, and so would not amount to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. Neither am I satisfied on the evidence before me that such a situation would result in the applicant being arbitrarily deprived of his life. It would not result in his suffering the death penalty.
As has been noted above, I accept that it is not impossible that persons in the applicant’s village might prove uncooperative (owing to envy at his having earned higher wages in Australia) were he to seek their assistance in re-establishing his [business]. In doing so he indicated that this would be an impediment to his re-starting his [business], but he gave no indication that this would cause him the kind of pain or suffering that would amount to either torture, or to cruel or inhuman treatment or punishment. Neither did he indicate that that this would cause him the kind of extreme humiliation that would amount to degrading treatment or punishment. I am not satisfied that it would. Further, and as I am not satisfied that the applicant would face a real risk of being unable to earn a livelihood in this respect, or that his capacity to subsist would be threatened, I am not satisfied that there is a real risk that such a situation would result in the applicant being arbitrarily deprived of his life. Neither would it result in his suffering the death penalty.
I accept that it is not impossible that returning to Fiji might have some level of negative impact upon the applicant. But I am not satisfied that there is a real risk that this would occur in a manner that would be intended to cause the applicant any harm, and so any harm experienced by the applicant in this respect to would not amount to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. Neither am I satisfied on the evidence before me that such a situation would result in the applicant being arbitrarily deprived of his life. It would not result in his suffering the death penalty.
I am otherwise not satisfied that the applicant would face a real risk of harm of any kind for any of the reasons he has raised or for any other reason. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
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)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 1 December 2023
Representative for the applicant: Mr Danny Narayan
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.
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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.
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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.
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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
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(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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