1906787 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of a family from Fiji. The primary applicant, an indigenous Fijian Christian, claimed to fear harm from the military and government members due to witnessing the death of a friend at the hands of military personnel in 2000. He also cited a lack of trust in the police and judiciary, which he believed were controlled by the current regime. The applicants arrived in Australia on visitor visas in May 2018 and applied for protection visas in October 2018. Their visas were refused by the Department, leading to their application for review by the Tribunal.

The Tribunal was required to determine whether the applicants had a well-founded fear of persecution if returned to Fiji, thereby meeting the refugee provisions of the Migration Act 1958, or alternatively, whether they met the complementary protection criteria. This involved assessing if there were substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia, they faced a real risk of suffering significant harm. The Tribunal also considered relevant country information, departmental guidelines, and the specific evidence presented by the applicants, including the primary applicant's personal account of witnessing violence and his subsequent psychological trauma and medical conditions.

In its reasoning, the Tribunal applied the definitions of "refugee" and "well-founded fear of persecution" as set out in sections 5H and 5J of the Migration Act. It also considered the complementary protection criterion under section 36(2)(aa), which requires a real risk of significant harm. The Tribunal noted that significant harm includes threats to life or liberty, torture, and cruel, inhuman, or degrading treatment or punishment. However, it also acknowledged that a risk of harm would not be considered real if reasonable relocation within the country was possible, or if effective protection could be obtained from the authorities. The Tribunal found that Fiji was the receiving country and that the applicants were outside their country of nationality without the right to reside elsewhere.

Ultimately, the Tribunal was not satisfied that Australia had protection obligations towards any of the applicants under either the refugee or complementary protection criteria. Consequently, the applicants did not satisfy the requirements for the grant of a protection visa. The Tribunal affirmed the decision not to grant the protection visas.