1905624 (Refugee)

1905624 (Refugee) [2024] AATA 2464 (3 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905624
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Damien Power
DATE:3 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 03 April 2024 at 10:38am
CATCHWORDS
REFUGEE – protection visa – Fiji – small business operator – interference by army, police and government office – questioned, threatened and forced to pay money, and product and equipment confiscated – business licenced cancelled while applicant in Australia – further, more serious incidents of detention, abused and assault raised at hearing – investigation for fraud – political opinion – criticism of government while in Australia – no evidence provided – multiple departures and returns – country information – peaceful and credible elections and change of government – member of family unit wife – wife’s and son’s work formal sectors until departure – no official approach to daughter in home country – 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 11 February 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 20 February 2017. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations.
The applicants appeared before the Tribunal on 7 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
CLAIMS AND EVIDENCE
Background
The primary applicant is a male aged [Age] years of age from Fiji. He was born in [Province 1] but resided in [Town] before departing Fiji. The second applicant is a female aged [Age] years, also originally from [Province 1].
The applicants are married with two children, a son and a daughter.
The primary applicant speaks, reads and writes English and Fijian. He completed high school and worked as [an Occupation 1] in Fiji, before starting his own business. The second applicant worked as [an Occupation 2] in Fiji.
Evidence before the Department
Migration History
The applicant has arrived in and departed from Australia a number of times. The applicants last arrived in Australia [in] November 2016 on a visitor visa.
On 20 February 2017, the applicants lodged a valid application for a (subclass XA-866) protection visa.
On 11 February 2019, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The applicant’s protection visa application provides the following information.
The applicant grew up in [Province 1] and was a keen [Occupation 1 skill]. As he got older, he attended courses and workshops in [Occupation 1 skill]. He became a qualified [Occupation 1] and worked in that profession before starting his own [Occupation 1] business in 2011.
The applicant’s [business] focused on commercial [Activity] in the [Province 1] area. They [did an Activity] for [Product]. The business quickly became successful. News of the business’s success spread quickly. Some people supported his business, but others became jealous.
[In] August 2012, around 11:30 am, the applicant was fast asleep with his family. They were awoken by the arrival of four army officers. They kept on calling out until the applicant opened the door. The soldiers questioned the applicant about his business and eventually became abusive. They threatened to confiscate the applicant’s latest [batch] of [Product] and sell it.
The nest day, the applicant was called into [Government office 1]. Members of the [office’s] investigation team were there and told the applicant that complaints had been received about his operation. He was directed to pay a sum of $50,000. After that he was allowed his cargo of [Product] from the [Vehicle]. The $50,000 he was forced to pay was a significant loss to his company and affected its operations.
His business continued face problems from people jealous of his success. Sometime in August 2012, he was shopping at the marketplace when six police officers surrounded him. He was taken to CID headquarters for questioning. He was eventually questioned by the Director of the CID, who told him that they would begin an investigation related to a dispute over some [Activity] equipment that the applicant had used in his business.
On 26 September, the applicant was called into the [office] again, and told that he would need to register his business so that he could pay tax to the government of Fiji, or his business would be closed.
The applicant registered his business [in] October 2012 as [Company]. When the applicant sold his third shipment of [Product], he gave money to the province of [Province 2] with which they were able to purchase solar lights for houses in the village. However, when the applicant arrived in [Town] with the [batch] from his fourth shipment, the [office]’s investigation team showed up and attempted to confiscate some of the [batch]. The applicant was forced to pay them money to get them to leave.
The applicant carried out further [Activity] operations in 2013 and was subject to further interference from the military. At one point his [Vehicle] was temporarily impounded. He also had issues with the [Government office 2] who withdrew necessary exemptions for his business.
In 2015, the applicant explored the possibility of carrying out [Activity] operations in [Country 1] and had discussions with the government there. The applicant visited [Country 1] again in May 2016 and submitted paperwork to [Country 1] [Government office 2]. The applicant then returned to Fiji and consulted with village chiefs about carrying out some [Activity] in their area.
While back in Fiji, the applicant learned that he and his wife had been invited to a church conference in Australia. The applicants were approved for 3-year multiple entry visa and came to Australia on 22 November 2016, planning to return in February 2017.
However, in January 2017, the applicant’s son called and informed him the Fijian [Government office 2] had closed the applicant’s business.
The applicant was heartbroken on hearing this news and did not have the courage to return to Fiji. He feared the army officers who were still in power there. He remembered the cruel and unkind acts they had suffered, and he feared what would happen if he and his wife returned to Fiji.
He cannot return to Fiji because of the cancellation of his company and business licence and because he fears the motivations that underlie those decisions.
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.
Nationality
The applicants provided copies of the bio-data pages of their Fijian passports. The delegate was satisfied as to the applicant’s identity and nationality. The applicants have provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicants’ identities and that their receiving country for the purposes of assessing their claims for protection is Fiji. There is no evidence that the applicants are nationals of or have a right to enter and reside in any country other than Fiji.
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
The issue in this case is whether the applicants meet the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As set out in the applicant’s original written statement and summarised above, the applicant stated at the hearing that he ran a commercial [Activity] business in Fiji. He claimed that the success of that business caused him to fall under the scrutiny of the army, the police and others. The applicant was asked about his business ventures in Fiji and the issues he had experienced.
The applicant described at hearing a number of events that appear in the written claims accompanying his protection visa application. However, at hearing, the applicant also described other, more serious incidents that are not in his initial written statements.
The applicant says that his first [Activity trip] was to [Province 2]. This trip was very successful. It was as a result of this trip that the applicant said he first came to the attention of authorities. He described an incident in August 2012, when a group of army officers came to his house and abused him verbally in front of his family. They had heard about the success of his [Province 2] [Activity trip] and demanded to know the details.
In his written statement, he says that the day after the army officers visited him in August 2012, he went to see members of a group he called the [Government office 1] investigation team. He says that he was asked to pay $50,000. After he paid this sum, he was allowed to unload his [batch] of [Product] from his [Vehicle]. However, at hearing, he claimed that he was roughed up and punched at this meeting, and that threats were made against him.
The applicant says that his next [Activity trip] was to [Island 1] in 2013. In his written claims, he says that prior to the [Island 1 trip] leaving, he got a call from an army major asking him to report to the army camp in [Location]. Five senior army officers were waiting for him. They grilled him about his business and warned him to be careful because they were watching him. He was then allowed continue his preparations and depart for [Island 1].
At hearing, he also recounted going to the army camp in [Location] with his son in 2013. However, he claimed that at one point, his son was ordered out of the room. He claims that once his son left, the army officers threatened him, and he was kicked and punched. The applicant said that the [Activity] project in [Island 1] had been started by the former Prime Minister of Fiji (prior to Bainimarama) and that the applicant had carried it on. The officers wanted to know what the applicant had paid to be allowed to [do Activity] in [Island 1]. He claims that they also told him that when he came back from the [Activity] trip, they would want to know how many [items he had] and how much he had spent on the trip. He said that he was detained overnight and then released.
He stated at hearing that he undertook another trip to [Island 2] in June 2013. The applicant said that on the way to [Island 2], they stayed in [Town]. He said that two vehicles carrying ten soldiers in all had arrived without warning. They proceeded to confiscate all the applicant’s equipment. As a result, the trip had to be abandoned. The applicant claims that he had to forfeit the $64,000 allocated to setting up the [Activity trip].
The applicant says that all through this period, he was visited by the military every time he applied for a renewal of his [Activity] licence. He says that they suspected he was using the [Activity] trips and the money he earned to further the aims of SODELPA and the opposition.
After the [Island 2] trip fell through, the applicant took a final trip to [Island 3] to do further [Activity]. The applicant and his wife then supported themselves through a combination of farming and his wife’s salary from her [Occupation 2] job at a [Workplace. The applicant also explored the possibility of doing some commercial [Activity] in [Country 1]. He travelled to [Country 1] and had some discussions with the [Government office 2] in [Country 1]. However, the applicant and his wife were invited to a church conference around this time and departed Fiji in December 2016. They have not returned to Fiji since.
I asked if the applicant had any other contacts with the authorities in Fiji between the between the [Island 2] trip falling through in June 2013 and his departure in 2017. The applicant said that in 2015, the CID had apprehended him at a market and taken him to the CID office in [Town]. There was a directive from [Government office 1] to pay a certain amount of money to the investigation team. I asked how much money they had wanted. The applicant said they asked for $30,000 and had showed him the written directive. I asked if they had given him a copy of the directive. The applicant said he did not have a copy. But the applicant claimed that a Captain [A] had signed the letter. I asked why they had wanted $30,000. The applicant said that a religious organisation, the [Church], claimed that the applicant owed them money and that part of the sum was also to pay for the Investigation Team’s expenses.
I asked if he had ended up paying the $30,000. The applicant said that he showed the CID evidence that he had already paid the appropriate sum to the [Church]. Later on, the applicant claimed that a minister from the [Church] came to Fiji and again demanded payment. However, the applicant confirmed that the matter had been cleared and the police had let the matter drop without the applicant having to pay any money.
The applicant has provided paperwork, purportedly from the police in Fiji, which suggested he may be wanted on charges of fraud. I asked the applicant about the significance of the documents. He said that the criminal investigation division of the police had blamed him for fraud. When asked what sort of fraud, the applicant that the police accused him of taking money from a company with whom he was involved. I asked what company he was referring to and the applicant said that the issue related to a [Country 2] company to whom he had sold his [Product batches].
I asked the applicant whether he had taken money out of this company. The applicant said that this company had financed his [Activity] operations. When he had set up the [Island 2] [Activity trip], he had lost a lot of money for the reasons described earlier. This was money the company had given him. The applicant and the company had signed an agreement saying that the money set aside for [Island 2] [Activity trip] had been lost so that the company could submit it to the tax office.
The applicant had confirmed that it was the $64,000 he had been forced to forfeit on the [Island 2] trip. I asked him when he had taken that money out of the company. He said that it had been prior to the [Island 2] trip, back in 2013. The applicant stated that a friend, who also ran [an Activity] business, had obtained the documents. I asked how someone who ran [an Activity] company could obtain police documents. The applicant said that he did not know.
I asked the applicant whether he had ever been contacted by the Fijian police or by the Australian authorities acting on their behalf since he had arrived in Australia. The applicant said he had not. I asked if the Fijian authorities had approached his son when he was still in Fiji or whether they had contacted his daughter (who still resides in Fiji). The applicant confirmed that they had not been contacted. I noted that all the documents claiming to be from the police dated back to August 2017 and asked the applicant if his friend had sent him any other documents since he had been in Australia. The applicant said no.
I asked the applicant if anything had happened since he departed Fiji. The applicant claimed that his son was visited by two men in suits. The applicant could not recall the date or the year this had occurred. I asked if the men had identified themselves and the applicant said they had not. The men had asked about the applicants whereabouts. The applicant’s son told them that the applicant was in Australia. The men had then left. The applicant did not indicate that these men had ever made a subsequent visit to his son.
I acknowledge that the applicant was the focus of attention from various Fijian authorities up until 2015 for reasons relating primarily to his business ventures. However, I do not accept that he was of any interest to the authorities at the time he departed Fiji or that the applicant would face any harm on return there now.
The applicant’s evidence at hearing differed in some important respects from the claims laid out in the detailed written statements that accompanied his protection application. At hearing, the applicant mentioned being visited by military officers at his home in 2012 and being verbally abused in front of his family. This is also set out in his written claims. However, later claims that he was detained and physically assaulted by the military and others do not appear in his earlier written statements. When this was put to him the applicant, he claimed that he had put forward these other more serious claims of being detained and assaulted to his lawyer but that she had failed to include them in his statements.

I do not accept that this is the case. The written statements accompanying his protection visa application are extremely thorough and include details such as the size of his [batch] during his [Activity] trips and the financial outcomes of those trips. They also include details of his interactions with authorities, including an incident in 2012 where he was verbally abused at his home by military personnel. I do not accept that his representative would have captured all that detail only to somehow omit the very serious accusations of detention and assault that the applicant raised at hearing. The applicant was also reminded that he had personally signed and attested to the accuracy of the statements submitted on his behalf. In response, the applicant simply repeated that he had told everything to his lawyer. I find that the applicant has embellished his accounts of his adverse interactions with authorities to strengthen his claims for protection.
As set out above, I do not accept the more serious accusations of detention and assault that the applicant raised at hearing. However, even by his own evidence at hearing, the applicant had no interactions with the authorities after his interview with the CID in 2015. Even that final interaction appears to have been resolved relatively amicably with the CID accepting that the applicant did not owe any outstanding amount to the church that had originally leased him some [Activity] equipment.
The applicant also confirmed earlier in the hearing that his wife had worked for some time in a [Workplace], including for a period after the applicant had discontinued his [Activity trips]. He also confirmed that his son had worked for the [Employer] in Fiji for a time after he had finished helping with the applicant’s [Activity] enterprise. The son had not left Fiji until May 2018. The applicant’s daughter is married and still resides in Fiji. The applicant did not report that any of his family had been targeted by the authorities. Both his wife and son were able to work in the [Work] sector, in [an Occupation 2] role and at [Employer] respectively, even after the period the applicant claims to have received adverse attention from the authorities due to his [Activity] business and his imputed support for SODELPA and the previous government.
The applicant made claims in his written statement and at hearing that he feared being arrested and detained if he returned to Fiji. At the hearing, he said he even feared the possibility of death on return to Fiji. However, the applicant confirmed that he had never been arrested or even charged during his time in Fiji. I note also that the applicant was able to depart and return to Fiji in 2014, before departing the country for the final time in November 2016. He did not claim that he come to the adverse attention of the authorities in Fiji or that he had experienced any issues leaving and re-entering the country on either occasion. His departure and return in 2014 was significant because it occurred during the period he reported being under close scrutiny and pressure by the military and others connected to the Bainimarama government. However, when asked why he had not applied for protection in Australia during his visit in 2014, the applicant said only that he had not thought about it.
I have considered the paperwork provided by the applicant that is purportedly from the police in Fiji, and which suggested he may be wanted on charges of fraud. However, the friend who obtained the documents was [an Occupation 1] and not a member of the police or security forces. The applicant was unable to say how his friend had obtained the documents.
Further, all the police documents are dated August 2017. However, the trip where the applicant was forced to outlay $64,000 was in June 2013. When I asked why the police had waited so long to investigate this payment, the applicant said he was not aware until he saw the documents that he was part of a fraud enquiry. The applicant was not able to explain why the police had waited until 2017 to begin investigating an issue that allegedly occurred in 2013.
The applicant said he was not able to provide the original police documents, only photocopies. Further, the applicant confirmed that neither the police in Fiji nor the police in Australia had been in contact since he had been in Australia. I put it to the applicant that the police documents were all dated August 2017 and it was now 2024. I asked if he had received any further documents from his friend. The applicant said he had not. I asked if his daughter in Fiji had been approached by the police and the applicant confirmed she had not.
I have considered the documents. However, given the lack of details around how they were able to be obtained and the fact that the applicant could not provide the original documents, I have some doubts about their reliability. I note also that the payment that the applicant claims was at the heart of the investigation occurred in 2013, but the claimed police documents are dated August 2017. It is not clear why the police took no action to further the investigation (such as at least interviewing the applicant about the payment) in the three years between the payment in 2013 and the applicants departing Fiji in November 2016. Further, by the applicant’s own account, there has been no official contact with the Fijian authorities in the past seven years (or by Australian law enforcement on their behalf), nor have the Fijian authorities approached his children.
Given all of the above, I am not satisfied that the claimed police documents are genuine. I do not accept that the applicant is or ever was facing charges of fraud in Fiji. I am not satisfied that he is of active interest to the police (or anyone else) in Fiji in regard to the financial operations of his business, possible fraud allegations, or for any other reason.
I note that the applicant raised a claim that his son had been visited in Fiji by two men in suits, sometime after the applicants had arrived in Australia. However, the applicant could not recall the date or even the year this had allegedly occurred and claimed that the men did not identify themselves. The men did not do anything but ask where the applicant was. There was a notable lack of detail in the applicant’s account of this incident. He had not mentioned the incident prior to being asked at hearing whether anything had happened since he had been in Australia. In any case, even on its face, the incident does not appear to have been significant. The applicant did not claim that any threats were made, that the men had behaved adversely in any way, or that they had ever subsequently approached his son.
The applicant also made claims related to his opposition to the Bainimarama regime. He is a supporter of Social Democratic Labour Party (SODELPA) and claimed that he took a significant role in assisting SODELPA in his area of Fiji. At hearing, he confirmed that he was a SODELPA supporter but said that he did not have a formal role in the organisation. He was asked to describe his involvement with SODELPA. He said that his wife and the wife of [a former Public figure] were related. He said that SODELPA had made introductions for him in the islands of Fiji and helped him extend his business. The applicant also claimed that his [Activity] business was targeted because he was suspected of furthering SODELPA’s cause and because he had refused to give financial support to the Fiji First Party of then Prime Minister Bainimarama.
The applicant also claimed that he would face issues on return to Fiji because he had criticised the Bainimarama government since he had been in Australia. He said that he had told people what had happened to him in Fiji and had exposed the Bainimarama government to the Fijian community here in Australia. I asked the applicant how he had exposed the former government. The applicant said that he had raised the issue with friends and church members. He also came into contact with the Fijian community whenever he attended birthday ceremonies and weddings as a [Church leader] and had discussed issues with the former government on those occasions. He had also raised it in phone discussions when people had asked about it.
However, the applicant did not provide any evidence that he had a wider public profile as a critic of the former Bainimarama government or claim that he had made his criticism known outside of the interactions with the Fijian community noted above. Although he claims SODELPA assisted him with his business and that he and his wife were SODELPA voters, he did not provide any specific examples of his work with SODELPA or claim that he had a high profile within the organisation.
In any event, there have been significant changes in Fiji since the applicant’s departure. Country information indicates that Fiji successfully transitioned from military rule after elections held in 2018. DFAT reports that observers generally considered those elections to be credible and to broadly reflect the will of the Fijian people[1]. Elections held in December 2022 saw a peaceful transition of power and were again considered to be generally free and fair[2]. The Bainimarama government lost those elections and was replaced by a government that includes the SODELPA as a coalition partner. The applicant stated in his written claims that the military and police take their orders from Mr Bainimarama, and specifically referred to Police Commissioner Sitiveni Qihilo and the (then) Commissioner of the Fijian Corrections Service, Francis Kean. Country information confirms that Mr Qihilo has been suspended and Mr Kean has resigned his position[3].
[1] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
[2] 'Common Claims Fiji December 2023 - Word', Country of Origin Information Services Section (COISS), 11 December 2023, 20231211152543
[3] “Pacific news in brief for 5 December”, Radio New Zealand, 5 December 2023 ( “Suspended FCS Commissioner resigns”, FBC News, Sainiani Boila, 3 March 2023 (>
DFAT has stated that it could not locate any reports of the former Prime Minister Bainimarama, his supporters, or the military pursuing Fijians who opposed the former Bainimarama government since the Rabuka government was elected[4]. The applicant was a SODELPA supporter. He claimed that he was targeted partly because he was from an area in Fiji known to support the then opposition, and because he refused to financially support the Fiji First party of then Prime Minister Bainimarama. However, the applicant did not claim to have been especially active in politics and did not have a formal role or office in SODELPA. Country information even at the time the former Bainimarama government was in power suggested that any adverse attention from the then Bainimarama government was generally limited to those with a high profile in the opposition and that low profile opposition supporters were much less likely to be affected[5]. In any case, as noted above, the current Fijian government has now changed and includes SODELPA as a coalition partner[6].
[4] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036
[5] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
[6] 'Common Claims Fiji December 2023 - Word', Country of Origin Information Services Section (COISS), 11 December 2023, 20231211152543
Towards the end of the hearing, I put a number of my concerns with the applicant’s claims directly to him. These included the fact that he had remained in Fiji for several years without incident after his last commercial [Activity] trip to [Island 2], had been able to depart and return to Fiji without incident in 2014 and depart again in November 2016, had not had any interaction with the Fijian authorities since coming to Australia, and that the political complexion of Fiji had changed significantly since the election of the Rabuka government in December 2022. The applicant responded by saying that his previous experiences continued to affect him and his family. He said he was unsure who would protect them on return to Fiji.
I acknowledge that the applicants’ past experiences in Fiji had an impact on them. I also accept that the applicant faced interference in his [Activity] business from the army and others within the Bainimarama government. However, I do not accept that the applicants would be at risk of serious harm on return to Fiji. I based this on a number of factors including:
-the lack of any adverse attention toward the applicant in the period from June 2013 up until his departure in December 2016
-the applicants’ ability to depart Fiji and return without incident in 2014, and subsequently depart again without incident in December 2016
-the absence of any evidence of approaches to the applicant by the Fijian authorities (or approaches by Australian law enforcement on their behalf) in the seven years he has been in Australia
-the fact that the government of Fiji has changed and includes SODELPA as a coalition partner
-COI indicating that even former high‑profile critics have been encouraged to return to Fiji and that legal proceedings against former Bainimarama critics have been dropped or dismissed since the Rabuka government took power in 2022
-COI indicating that there have not been any reports of former critics or opponents of the previous Bainimarama government being targeted on return to Fiji since the 2022 election
The applicants have not expressed concerns that they would be unable to or prevented from making a living and supporting themselves on return to Fiji. However, I note that the applicants resided in Fiji for some years between the effective end of [the applicant]’s [Activity] endeavours in 2013 and the applicants’ departure from Fiji in November 2016. [The applicant] was able to farm a plot of land and his wife continued to work as [an Occupation 2]. At hearing, he gave evidence that he continued to own a house and some land in Fiji. He has previously operated a successful business in Fiji. Since arriving in Australia, he has run his own [business]. The applicant is an adaptable and experienced individual. I am satisfied that he and his wife would be able to support themselves on return to Fiji. Having regard to the information set out above, and particularly the change of government in Fiji, I am also satisfied that he would not be prevented or discriminated against in seeking employment or starting his own business in Fiji.
Given all the above, I am not satisfied that the applicant faces any harm on return to Fiji, either on the basis of the political situation in Fiji, his past business endeavours, his association with SODELPA, or for any other reason. I am not satisfied that he would face any harm related to the current political situation in Fiji.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
I have considered the applicants’ claims under the complementary protection provisions. For the reasons set out above, I am not satisfied that the applicant faces a risk of any harm on return to Fiji either on the basis of the political situation in Fiji, his past business endeavours, his association with SODELPA, or for any other reason.
As noted above, the applicant has experience running his own businesses here and in Fiji. His wife is a qualified [Occupation 2]. They own land and a house in Fiji. I am satisfied that they would be able to support themselves, and that they would not be prevented from working or running their own business.
The applicants have not put forward any other claims that would engage the complementary protection criteria.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Damien Power
Member

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

[2024] AATA 2464

3 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction