1905440 (Refugee)

1905440 (Refugee) [2024] AATA 3446 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905440
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Stefanie Memmott
DATE:6 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2024 at 8:51am

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – freedom of speech and indigenous rights – mental health – marriage and child in Australia – honest and credible oral evidence – no political or indigenous rights activity – multiple entries and returns – country information – recent change of government and improvement in conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Fiji, applied for the visa on 30 October 2018.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant’s protection visa application form included, among other things, the following information:
·He is a male, was born in [Year] in [Town], Fiji and is a citizen of Fiji.
·He arrived in Sydney [in] August 2018 as a visitor, travelling on a Fijian passport issued in 2010 by the Immigration Department in Suva.
·Prior to that arrival, he had travelled to Australia 6 times visiting relatives: once in 2013, 3 times in 2017 and 2 times in 2018.
His visa application form was accompanied by a written statement, in English, which outlined his claims for protection. These claims related to freedom of speech and the possibility of arrest or prosecution for criticizing the (then) government; the taking away of indigenous rights; unstable government in Fiji; and mental health problems (depression and aggression) which resulted from these issues.
Supporting documentation
The Departmental file contains a copy of each page of the applicant’s passport.
Departmental delegate’s interview
There is no evidence before the Tribunal which indicates the applicant was interviewed by the Department as part of the assessment of his protection visa application.
Departmental delegate’s decision
The applicant’s visa application was refused on 9 February 2019. The delegate considered a range of country information sources and found that they were specifically inconsistent with the applicant’s claims he faces suppression of indigenous rights in Fiji. The delegate was not satisfied the applicant had restricted or modified his opinions or activities in support of political, human and civil rights. The delegate found the applicant would have access to satisfactory mental health care.
Claims and evidence before the Tribunal
Application for review
The applicant applied to the Tribunal for a review of the Department delegate’s decision on 7 March 2019. The application was accompanied by a copy of the Departmental delegate’s decision record and notification letter.
The hearing – oral and documentary evidence
The applicant appeared before the Tribunal on 5 March 2024 to give evidence and present arguments.
At hearing, the applicant gave evidence that he does not have any fear of harm should he return to Fiji. He gave evidence that, since the change of government in Fiji in 2022, things have improved there and changed a lot. The Tribunal found the applicant to be forthright, credible and honest in giving evidence to the Tribunal. The Tribunal accepts the applicant’s oral evidence given at hearing, which is discussed further below, as relevant.
No documents were submitted at hearing and no witnesses gave evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
A copy of the applicant’s Fijian passport was included in the Departmental file, and the applicant gave evidence at hearing that he is a citizen of Fiji and no other country. On the evidence before it, the Tribunal is satisfied that the applicant is a national of Fiji and that Fiji is the receiving country for the purposes of assessing his claims.
Freedom of speech / unstable government
The applicant gave evidence at hearing that, in 2018, he didn’t really want to go back to Fiji and considered that applying for a protection visa was a way to try to further his stay in Australia. He conceded his claims for protection were not as severe as the reasons some others have.
In relation to the claims concerning freedom of speech and the lack of stability (military coups) and democracy set out in his application, the applicant clarified that he wasn’t politically active in Fiji. Rather, he observed that under the former Bainimarama government, his father – as [an Occupation] – could not speak up if something was wrong. He was aware that many [Occupation]s lost their jobs for speaking out. He was the eldest child, so he didn’t want to speak out for his father’s sake. Also, in his neighbourhood, under the previous government there were boys who were beaten by soldiers, taken to camps. There was a rise in drugs at the time, and kids in his neighbourhood were targeted because of this. That caused fear, kids stayed home after 9pm and felt shelled up.
However, the applicant gave evidence that he no longer feared speaking out or criticising the government. He gave evidence that things have changed a lot in Fiji. He thinks that the situation in Fiji now is better due to the change of government, that now you can speak out and have freedom of speech. He also gave evidence his father has retired.
The country information before the Tribunal about conditions in Fiji is consistent with the applicant’s evidence. It indicates that politics in are no longer characterised by the unrest of the past,[1] and there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022.[2] Those elections were assessed as being free and fair overall, with a peaceful transition of power.[3] While under the Bainimarama government, high profile figures seen to challenge the government’s authority were at risk of negative attention, including arrest, detention and re-entry bans,[4] the Rabuka government has taken steps to facilitate the return of several critics of the Bainimarama government to Fiji and has discontinued legal proceedings against critics of the former government which commenced prior to December 2022.[5]
[1] DFAT Country Information Report – Fiji, May 2022 (para 3.32).
[2] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023.
[3] Freedom House, 31 August 2023, 20230831112859; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.11; ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023.
[4] DFAT Country Information Report – Fiji, September 2017 (para 3.41); 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.164; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.10.
[5] ‘Cautious Optimism for Fiji’s Coalition Government’, Australian Institute of International Affairs, 8 March 2023 ( accessed 8 February 2024); 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023; 'Fiji: Repeal Of Restrictive Media Law, Reverse Of Travel Bans And Other Reform Commitments A Positive Signal For Civic Freedoms', CIVICUS Monitor, 31 May 2023; ‘Dr. Padma Lal arrives into the country with late Professor Brij Lal's ashes after 14 years’, Fiji Village, 22 February 2023; 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023; ‘Richard Naidu's conviction not to be recorded and charge of contempt
The applicant has not claimed he was politically active in the past, an outspoken or a publicly known critic of the government, nor has he claimed he would be in the future. The Tribunal accepts that, on return to Fiji, it is possible may hold critical views of the government and express them to family and friends but based on the applicant’s own evidence and the country information before it, the Tribunal is not satisfied he faces a real chance of arrest, protection or any other adverse treatment as a result of such expression of those views.
At hearing, the applicant did not put forward any claims to fear harm from coups, unstable government or a lack of democracy. Rather, he gave evidence that the political situation had improved in Fiji. The Tribunal is not satisfied he faces any real chance of serious harm associated with unstable government or a lack of democracy.
Based on the applicant’s own evidence he no longer fears the kind of beatings which occurred in his neighbourhood and the country information outlined above about a more stable political situation existing in Fiji, the Tribunal is not satisfied he faces a real chance of serious harm in the form of beatings by soldiers in his neighbourhood.
Indigenous rights
In relation to indigenous rights, the applicant gave evidence that he had never been an advocate for or spoken up about indigenous rights in the past. He gave evidence that the previous government had set up a copper mine on the traditional land owned by his uncles, but his uncles they put a stop to this. The previous government sent soldiers in to try to take back the copper mine but they failed because his barricaded the site. The applicant stated he had been following this situation, but that there had been no activity at the mine since the change of government.
The applicant clarified at hearing that he was not an advocate for indigenous rights in the past and he did not claim he would be in the future. At hearing he put forward no claims that issues associated with indigenous rights may cause him harm in the future, and instead gave evidence he did not have any fear of harm on return to Fiji. Based on the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of harm associated with indigenous rights issues.
Mental health
In relation to concerns about mental health, the applicant gave evidence that he had not been formally diagnosed with depression. The situation in Fiji made him depressed, but everything has changed now, his focus is on his family here and at home in Fiji. He gave evidence he has married in Australia and has had a [child], and that life has improved for him. The applicant gave evidence he has not had any treatment for mental health issues in Australia.
While the Tribunal notes his protection visa application refers to a fear that if he returns to Fiji his aggressive behaviour, feelings of being isolated and suicidal thoughts will return, at hearing the applicant did not put forward any claims to fear harm in relation to mental health on return to Fiji. Rather, he gave evidence he has no fear of future harm and that the situation in Fiji is better due to the change of government.
Based on the evidence before it, the Tribunal is not satisfied the applicant faces a real chance of serious harm related to mental health issues in Fiji.
The Tribunal has also considered issues raised in this matter cumulatively, but is not satisfied the applicant faces a real chance of serious harm in Fiji in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the same reasons as outlined above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm in relation to expression of views critical to the government, in relation to unstable government or lack of democracy, in the form of beatings by soldiers in his neighbourhood, in relation to indigenous rights issues or in relation to mental health issues. The Tribunal is not satisfied that, having regard to these issues cumulatively, the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of him being removed from Australia to Fiji.
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.
Stefanie Memmott
Member

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

dismissed’, Fiji Village, 18 July 2023; ‘Tabuya and Lobendahn discharged after FICAC withdraws its case’, Fiji Village, 31 July 2023.

[2024] AATA 3446

6 March 2024

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