1906790 (Refugee)

1906790 (Refugee) [2024] AATA 1584 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906790
COUNTRY OF REFERENCE:                   Fiji
MEMBER:R Guemy
DATE:14 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 March 2024 at 5:39pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – race – indigenous Fijians – land dispute – mental health – did not experience any past harm from authorities or community members – would not suffer significant economic hardship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant, a [age]-year old male and citizen of Fiji born in [a] province, last entered Australia on [date] July 2018. He applied for a protection visa on 27 August 2018.
CLAIMS AND EVIDENCE
Evidence given to the Department
In an undated written statement that he claimed to have prepared as responses to questions 76 to 83 of the protection visa application form, the applicant claimed that:
i.he did not feel free to discuss matters about Fiji without fearing that someone will report on him to the police or the military;
ii.he is a strong advocate for human rights and traditional Fijian values;
iii.he had been under a lot of pressure and depressed because of the situation in Fiji, including the coups that took place there in 1987 and 2006, leading to him being very aggressive and violent back at home;
iv.there are many coups in Fiji and he does not want to be a victim of the political upheavals in Fiji which have harmed him psychologically and mentally;
v.his basic human rights will be deprived if he returned to Fiji;
vi.he will be reprimanded and mistreated by the government if he returned to Fiji, which would lead to him committing suicide and ending his life;
vii.the current government is taking land rights away from the indigenous Fijian population which would lead to the applicant getting angry, depressed and becoming aggressive;
viii.he does not want his children to be deprived of their rights to traditional and true identity;
ix.he has become aggressive due to his depression, resulting in his children suffering and taking the brunt of his anger towards the Fijian government;
x.his rights as an indigenous person have been take away from him and his right as a person to freely express himself have also been taken away;
xi.if he returned to Fiji his trauma will continue because the indigenous people and traditional leadership systems are being suppressed and indigenous people are having their rights taken away from them;
xii.if he returned to Fiji the problems he has faced will continue and become worse because there are restrictions on the people in Fiji, the people there live in fear and cannot trust one another for fear of being reported by even close friends;
xiii.if he returned to Fiji his life span will shorten because of his fear and psychological stress and this would lead to him becoming angry, depressed and becoming aggressive;
xiv.if he returned to Fiji the trauma will continue, he will feel isolated and will want to end his life because of the suppression of traditional leadership systems and the taking away of indigenous rights;
xv.the Fijian authorities and government will not be able to protect him because they are the ones causing problems and they are the ones that the applicant is trying to move away from;
xvi.he can only turn to friends and relatives for advice;
xvii.he could not relocate to any other part of the country because the problems in Fiji are nationwide and if he stays in his village then his whole village will be implicated because he will be seen as a trouble-maker.
The delegate considered country information about the position of indigenous Fijians and found that there was no official discrimination against indigenous Fijians in Fiji, that they were engaged in all aspects of the economy and predominate in non-sugar agriculture, primary industries, fishing and fish-processing as well as in government. Given the treatment and standing of ethnic Fijians in Fiji, the delegate found that the applicant did not face a real chance of being persecuted on account of his indigenous Fijian ethnicity.
The delegate found that the applicant did not appear to be a high-profile political figure or vocal critic of the Fijian government or that any of his views disapproving of the government had caught the attention of Fijian authorities or would do so in the future such that he would face persecution on return to Fiji for his disagreement with Fijian government policies.
The delegate accepted as plausible that the situation in Fiji might have had an adverse effect on the applicant’s mental health, however he found that as this was not intentionally inflicted on the applicant it could not be considered persecution.
The delegate was not satisfied that the applicant would face a real risk of significant harm as defined in s 36(2A) of the Act as a result of the restrictions placed on freedom of expression in Fiji and for the psychological effects of the series of coups in Fiji on the applicant.
The delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there was a real risk the applicant will suffer significant harm as outlined in s 36(2)(aa) of the Act.
The delegate decided to refuse to grant the application a protection visa on 6 March 2019.
Evidence given to the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 22 March 2019.
The applicant provided a copy of the delegate’s decision record with his application for review. He also provided the following documents:
i.his NSW photo card;
ii.Workplace Health and Safety Queensland [card] issued in his name [in] July 2017;
iii.photo page of his Fijian passport;
iv.Certificate of Conditional Dissolution of Marriage issued in the Family Division of the Magistrates Court of Fiji in [Town 1], dated [May] 2022;
v.Certificate of Final Dissolution of Marriage issued in the Family Division of the Magistrates Court of Fiji at [Town 1], dated [June] 2022;
vi.Statement of Attainment – [a certificate], issued by [a training institute] , dated 30 May 2020;
vii.character reference letter from [a] Manager – [Company 1], dated 19/02/2024; and
viii.letter from the applicant dated 20/02/2024 indicating, among other things, that if he goes back to Fiji he won’t be able to get a job since work is scarce there;
ix.payslip from [Company 2] for pay period 10/01/2024 to 16/01/2024, payment date 26/01/2024;
x.letter of confirmation of employment from [Company 2] dated 29 January 2024;
xi.Employee of Special Recognition certificate signed by [name], Managing Director of [Company 2].
Tribunal hearing – 21 February 2024
The applicant appeared before the Tribunal on 21 February 2024 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The hearing was conducted with the help of an interpreter in the Fijian and English languages, however the applicant participated in the hearing speaking English and occasionally relied on the interpreter to seek clarification when he considered it necessary. The Tribunal considered that the applicant was able to understand and clearly communicate with the Tribunal in English. The applicant otherwise confirmed that he was feeling well and able to participate in the hearing. The Tribunal did not identify any issues or impediments that would affect the applicant’s ability to meaningfully participate in the hearing.
At the beginning of the hearing, the applicant confirmed to the Tribunal that a friend had helped him lodge his protection visa application but that he had prepared his written statement, referred to above at paragraph 3, himself. He told the Tribunal that he broadly recalled the content of his statement and when the Tribunal showed him a hard copy of the statement, he recognised it as his. The applicant indicated that he did not wish to add or change anything to his written protection visa application.
The applicant gave evidence about the composition of his family. He confirmed that he and his wife divorced in June 2022 after five years of marriage. This happened because she started a relationship with someone else given that the applicant had been living and working in Australia since 2018. His wife has been living and working as a [occupation] for the past two years, however he was no longer in contact with her. The applicant gave evidence that his [age]-year old daughter, his two sisters and his mother live together in [Village 1] Village in the Greater Suva region. His daughter is currently studying a [degree] at [University 1], one of his sisters works as a [occupation] and the other is a small business [owner], and their husbands work in the [specified] industry. The applicant told the Tribunal that if he returned to Fiji, he would resume living in [Village 1] Village with his family.
The applicant gave evidence that he had completed primary, secondary and tertiary education in Fiji. He obtained a [qualification] at [an] Institute [and] had undertaken some [courses] at [University 1] but did not complete them.
The applicant gave evidence about his employment history in Fiji that was consistent with information contained in his protection visa application form. He confirmed that he had worked primarily as a [Occupation 1] for various Fijian Public Service agencies, including [deleted]. He also worked as a [Occupation 1] at [a workplace]. Since living in Australia he has undertaken [work] in the [specified] industry and has worked six years in his current position with the same employer. He sends approximately $300 a week of his income to his family in Fiji.
The applicant gave evidence that he had only ever travelled to Australia. On his previous visits throughout 2016, 2017 and 2018 he had come to visit family and friends. When the Tribunal asked the applicant why he decided to come to Australia on the most recent occasion he indicated that it was to look for job and study opportunities. When the Tribunal asked the applicant what he thought would happen if he returned to Fiji, he said that he wouldn’t have work to support his daughter and family and that opportunities in Fiji are limited. He stated that he had no fear of harm if he went back to Fiji and that he would not experience problems with authorities or members of the community if he returned there. He also confirmed that he had not experienced any problems either from authorities or members of the community when he previously lived in Fiji before coming to Australia.
The Tribunal explored the applicant’s written claim given as part of his letter to the Tribunal dated 20 February 2024 and referred to in paragraph 9.viii above about job opportunities in Fiji. The applicant indicated that his principal concern in returning to Fiji would be that the economy there was inferior to that in Australia and that there would not be as many opportunities there for him as there are in Australia. The Tribunal asked the applicant whether he would intentionally be prevented from working by anyone for any particular reason and he said that he would not be. The applicant confirmed to the Tribunal that he did not think he would be the victim of any employment-related discrimination that would affect his ability to find work if he returned to Fiji. However, he indicated that his capacity to resume work in the Fijian public service may be limited because he had previously breached his work contract at [an agency] when he took two weeks of unauthorised leave to attend to a family issue, which led to his employer terminating his employment on the grounds that his absence was considered a deemed resignation from his position. In spite of this, the applicant was able to return to work in the Fijian public service when he later took up a position with [another agency].
The Tribunal raised with the applicant the existence of country information that Fiji is one of the most developed and connected economies in the Pacific Islands region and that this may lead it to find that the applicant would be able to find work if he returned to Fiji. The applicant responded by indicating that the pay in Fiji is not as competitive as it is in Australia. The Tribunal also raised with the applicant its concern that any economic difficulties that he might experience in Fiji did not appear to be systematic and discriminatory conduct and that the challenges posed by the state of the Fijian economy appeared to be a risk faced by the general population of Fiji and that this may lead the Tribunal to find that Australia did not owe him protection obligations. The Tribunal indicated that it had not formed a concrete view on the matter and invited the applicant to respond, to which he indicated that he agreed with the Tribunal’s preliminary views.
In exploring the applicant’s written claims to fear political harm if he returned to Fiji, the Tribunal asked the applicant whether he was politically active and he indicated that he was not. The Tribunal also asked the applicant whether he had any concerns or worries about the political landscape in Fiji or whether there were any political issues in Fiji that mattered to him and he said that there were not. The applicant confirmed that he was not a member or a supporter of any of the major political parties in Fiji, namely the FijiFirst Party, the People’s Alliance, Social Democratic Liberal Party or the National Federation Party. The applicant also told the Tribunal that he had no intention to become politically active if he returned to Fiji.
In exploring the applicant’s written claims to fear harm based on his mental health, the Tribunal asked the applicant whether he was suffering any problems with his health, including mental health conditions such depression or suicidal ideation, and the applicant said that he was not. The applicant also confirmed that he was not currently suffering from any health conditions or taking any medication. He told the Tribunal that he had suffered a minor workplace injury where [details deleted] but that he had received appropriate treatment for this injury and did not require any ongoing medical attention for it.
The Tribunal explored with the applicant his written claims about fearing harm on the basis of having his land rights as an indigenous person taken away and asked whether he had any concerns about government policies or laws about indigenous land rights and he said that he did not. The applicant told the Tribunal that he had not engaged in any previous or recent activism for indigenous rights either in Fiji or in Australia. He indicated that he had previously been concerned about the approach of the former Fijian government (led by Frank Bainimarama) to land rights and land law policies but was of the view that the current government under Sitiveni Rabuka was looking to change some of the laws and policies that existed under the Bainimarama government. He indicated that he was happy with the Rabuka government’s re-establishment of the Great Council of Chiefs but he expressed some doubt whether traditional leadership systems would continue to flourish as it was unclear whether the Rabuka government would remain in power.
The applicant expanded on his concerns about land rights issues and indicated that because there is a limited amount of land and the size of his family and population of his village were growing, this may lead mean that there wouldn’t be enough farmland to generate income, and this may lead to economic problems. The Tribunal indicated to the applicant that he may be able to rely on his skills, qualifications, and past work experience to work and earn income in other industries such that any economic problems he or his family would face may not amount to serious or significant harm. The Tribunal stressed that it had not formed a final view on the matter and invited the applicant to respond to its concerns, but the applicant did not give any further evidence or present any further arguments in response to them.
The Tribunal asked the applicant whether he had experienced any conflict with his family members, namely his wife, children or sisters, when he lived in Fiji and he said that he had not. The applicant explained, however, that because physical land boundaries in his village were sometimes unclear, one family might use another family’s land for farming purposes, and this would lead to disputes and conflict in the village. According to the applicant, this happens approximately twice a year in his village and disputes were generally settled by the village chief. He told the Tribunal that he had experienced some conflict with other villagers over similar issues of land use and land boundaries in the past but that the last time this happened was approximately seven years ago. The Tribunal told the applicant that based on this it may find that there is no real chance or real risk that this would happen again in the reasonably foreseeable future but that it had not yet formed a view on the matter. The applicant did not give further evidence or present further arguments in response to this concern held by the Tribunal.
The Tribunal explored the applicant’s claim to be a strong advocate of human rights and he indicated that he was a private supporter of human rights and had not engaged in any activism on this issue either in Australia or Fiji.
COUNTRY INFORMATION
Mental health
The ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022 provides the following on the provision of and access to mental health services in Fiji:
2.13     The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
2.14     Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
2.15     Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.
Economy and employment in Fiji

The ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022 provides the following on the economy and employment in Fiji:
2.7      The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
2.8      Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
2.9      About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
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2.18     Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.
2.19     The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.
2.20     The tourism sector was significantly disrupted by the COVID-19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre-pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.
2.21     Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
2.22     The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. The amounts paid under various schemes (not including food vouchers and bus subsidies) is typically about FJD35-90 (AUD20-60) per month.
2.23     iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. 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. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support. While family and kinship ties are less pronounced in Indo-Fijian families (iTaukei families have formed these networks over a much longer time) they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families. Remittances are an important part of the Fijian economy and may have been a source of support for some Indo-Fijians following recent high levels of outward migration.
Land rights
The ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, provides the following on land rights and property law in Fiji:
2.24     Land rights are controversial in Fiji as they are in Australia. The colonial government allocated ancestral land to traditional owners who now own the vast majority of land in Fiji. Indo-Fijian indentured workers were not given access to land by the colonial government and iTaukei were prevented from working on the sugar cane plantations.
2.25     About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years but land is usually leased for 30 years. Residential leases are longer and leases can be bought and sold.
2.26     Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. A tenant can be removed from land if it is not maintained or used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time). This involves a breach of lease and a court process that can lead to eviction.
2.27     Informal land use (‘squatting’) is common. Most squatting is done with the permission of the land owner; for example, extended family using the land without a formal lease agreement. Informal land users have few legal rights and may be asked to leave at any time. Internal migration from rural areas to cities has increased the number and size of informal settlements in recent years.
Human rights
The ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, provides the following on the human rights framework in Fiji:
2.30 Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court.
National human rights institutions
2.31     The Constitution sets out the mandate and functions of the Fiji Human Rights and Anti-Discrimination Commission (FHRADC). The FHRADC has a chairperson and four other members. It conducts education campaigns about human rights and can hear complaints, monitor and report on human rights, and make recommendations to the Government. It can conduct investigations on its own initiative or based on a complaint, and can make applications to a court to enforce laws.
2.32     According to a 2020 article by The Guardian, the majority of the complaints received relate to violence in prisons or at the hands of police, but the Commission does investigate other human rights complaints. Critics claim that the FHRADC is underfunded and chooses complaints to investigate based on its budget and political considerations. Some NGOs may be reluctant to work with the FHRADC because they believe it is not independent or credible. The situation differs between different NGOs; some operate in a partisan manner and this influences their choice of affiliation with government bodies.
2.33     Fijians with a disability are protected by the Rights of Persons with Disabilities Act 2018. That Act creates the National Council for Persons with Disabilities. The Council advises the Government on disability issues, works with aid partners, develops policy and advocates for people with disability. The Act also bans discrimination based on disability.
Race and nationality
The ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, provides the following on race and nationality in Fiji:
3.1      The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei. Statistics on ethnicity were not released by the Fiji Bureau of Statistics for the 2017 census due to problems when collecting the data.
3.2      Parallel ethnic communities have a long history in Fiji. The colonial government encouraged the separate development of ethnic communities that lived, worshipped and were educated separately. Today, some separation between the communities continues but it is not officially mandated. For example, Indo-Fijians tend to make up the majority of the business and farming sectors, but iTaukei Fijians tend to make up the majority of the security forces and the public service.
3.3 Since 2009, the Government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. Through mechanisms such as the 2013 Constitution, the Government has reformed or removed racial aspects of the political system, including by abolishing separate ethnic-based voter rolls. Ministers in the current FijiFirst Government are from both major ethnic communities.
3.4      The largest opposition party in Parliament is currently the Social Democratic Liberal Party (SODELPA) which polled well in the 2018 election and largely draws its support from iTaukei. FijiFirst is popular among Indo-Fijians, who support its multi-ethnic platform.
3.5 Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.
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iTaukei
3.8      Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.
3.9      Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
3.10     iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.
Political matters
The ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, provides the following on the political landscape in Fiji:
3.25 The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
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3.28 A former political candidate, Benjamin Padarath, was charged with sedition, among other crimes, for his social media posts that were found to interfere with an investigation by the Fiji Independent Commission Against Corruption (FICAC). Padarath allegedly destroyed evidence and leaked information in a way that was considered prejudicial to the investigation. At the time of writing the matter has not been resolved. DFAT notes that, apart from the application of ‘sedition’ charges, such actions would likely also be illegal in Australia and other liberal democracies.
3.29 According to media reports, in 2019, a 16-year-old boy was taken from his home by men claiming to be from the army. The men questioned the boy for two days after he posted a picture of graffiti critical of Prime Minister Bainimarama on Facebook. The facts of the case are disputed and DFAT is not aware of the outcome of incident. DFAT is aware of other cases where arrests have been made for online criticism that have not led to prosecutions.
3.30 DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there DFAT Country Information Report FIJI May 2022 15 are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act. Media outlets and platform owners may also be subject to consequences, if they are judged to have broken the law.
The ‘2022 Country Reports on Human Rights Practices: Fiji’, U.S. Department of State, provides the following on political expression in Fiji:
Internet Freedom
The government did not restrict or disrupt access to the internet or censor online content; unlike in previous years, there were no reports the government monitored private online communications without legal authority.
The law on online safety penalizes offenders with a substantial maximum fine and a maximum five years’ imprisonment for conviction of posting an electronic communication that causes harm to a person. Four days after the December 14 general election, two candidates for the We Unite Fiji Party, Jone Hawea and Abel Camillo, were arrested, charged with one count each of malicious actions, and arraigned. The two allegedly conducted separate live Facebook videos calling on viewers to gather at the Suva Vodafone Arena to protest the election counting process. Before releasing the men on bail, the court ordered them not to reoffend, interfere with witnesses, or post information on the internet likely to cause fear.
All telephone and internet users must register their personal details with telephone and internet providers, including name, birth date, home address, left thumbprint, and photographic identification. The law imposes a moderate maximum fine on providers who continue to provide services to unregistered users and a substantial maximum fine on users who fail to update their registration information as required.
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Freedom of Peaceful Assembly
The constitution allows the government to limit this right in the interests of national security, public safety, public order, public morality, public health, and the orderly conduct of elections. The constitution also allows the government to limit freedom of assembly to protect the rights of others and imposes restrictions on public officials’ rights to freedom of assembly.
The POA allows authorities to use whatever force necessary to prohibit or disperse public and private meetings after “due warning” to preserve public order.
Freedom of Association
The constitution limits this right in the interests of national security, public order, and morality, and to provide for the orderly conduct of elections. The government generally did not restrict membership in NGOs, professional associations, and other private organizations.
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

The Tribunal has considered the copy of the applicant’s passport and his oral evidence given at the Tribunal hearing on 21 February 2024 and finds that he is a Fijian national. The Tribunal finds that Fiji is the applicant’s country for nationality for the purposes of s 5H of the Act and the receiving country for the purposes of s 36(2)(b) of the Act.
In making its decision, the Tribunal has taken into account the applicant’s written claims summarised at paragraph 3 above, supporting evidence that he has provided to the Tribunal summarised at paragraph 9 above, his oral evidence given at hearing on 21 January 2024 and relevant country information outlined above and footnoted in this decision record.
The Tribunal found the applicant to be a credible witness at hearing. The applicant’s oral evidence given at hearing was different in certain respects to what he had outlined in his written statement summarised at paragraph 3 above, namely that he did not experience any past harm from authorities or community members in Fiji; that he did not fear harm from authorities or community members if he returned to Fiji; that he had not been politically active either in Fiji or Australia and had no concerns about the political landscape in Fiji; that he did not suffer from any health concerns, including mental health conditions or suicidal ideation; and that he had not experienced any conflict with his family members when he lived in Fiji.
The Tribunal has considered the applicant’s written claims in comparison to his oral evidence given at the Tribunal hearing held on 21 February 2024. Where the applicant’s written claims have differed to his oral evidence given at hearing, the Tribunal has preferred the applicant’s oral evidence as it was given in the context of a Tribunal hearing which allowed the Tribunal to explore the applicant’s overall claims for protection, test his evidence and to evaluate the overall credibility of his claims and his reliability as a witness. In addition to this, the Tribunal found the applicant’s oral evidence given at hearing to be direct, frank, transparent and honest. He did not embellish or exaggerate his claims and his responses were directed towards the Tribunal’s questions about his personal circumstances and claims for protection.
The Tribunal finds that the applicant has not experienced any past harm in Fiji either from Fijian authorities or from anyone in the community there. The Tribunal also finds that the applicant does not presently fear harm from Fijian authorities or anyone in the community if he returned to Fiji. The Tribunal bases these findings on the applicant’s oral evidence given at hearing on 21 February 2024.
Economic and employment claims
Based on the applicant’s oral evidence given at hearing on 21 February 2024, the Tribunal finds that the applicant would resume living in [Village 1] Village with his family and that he would have appropriate accommodation there if he returned to Fiji. While the Tribunal accepts that the state of the Fijian economy might be inferior to that in Australia and that he would earn a lower wage there than he currently does working in Australia, the Tribunal finds that the applicant would be able to find suitable employment in Fiji based on his educational qualifications, his past work experience and his professional skills. In light of this, the Tribunal finds that the applicant would be able to support himself and his family and would not suffer significant economic hardship that would threaten his capacity to subsist or anything that would otherwise amount to serious harm or significant harm. In addition to this, the Tribunal finds that any difficulties that the applicant will experience from the general economic conditions in Fiji, including looking for suitable work, do not amount to systematic and discriminatory conduct for the purposes of s 5J(4)(c), and also that any such difficulties are a risk faced by the population of Fiji generally and is not faced by the applicant personally for the purposes of s 36(2B)(c).
Political opinion and human rights claims
The Tribunal finds that the applicant is not politically active in any way. The Tribunal bases this on the applicant’s oral evidence given at the Tribunal hearing on 21 February 2024. Although the applicant privately believes in the importance of human rights and is broadly concerned about indigenous rights and indigenous land rights, the Tribunal finds that he would not seek to express his views on these issues or any other political matter in any public manner that might attract adverse attention from Fijian authorities or any other parties. The Tribunal finds that this is due to his low personal level of political interest and engagement rather than any fear of harm if he were to politically express himself in Fiji. As such, the Tribunal finds that there is no real chance or real risk that the applicant will experience any harm for reasons of his political opinion or political views if he returned to Fiji.
The Tribunal further finds that the applicant otherwise possesses no characteristics that would lead to a real chance or real risk of him being deprived of human rights in any way that might amount to serious harm or significant harm if he returned to Fiji.
The Tribunal has considered the country information set out above about political matters in Fiji contained in the ‘DFAT Country Information Report Fiji’ dated 20 May 2021 as well as more recent country information taking into account the change of government in Fiji following general elections in December 2022. Having regard to this country information, the Tribunal finds that there is no real chance or real risk that there will be political instability in Fiji in the reasonably foreseeable future given that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022,[1] that the transition of power from the previous Bainimarama government to the Rabuka government has been peaceful despite the current Fijian political climate being characterised by a power struggle between the new Prime Minister and former Prime Minister,[2] and that the head of Fiji’s military, Commander Major General Jone Kalouniwai reiterated in July 2023 that a coup d’état would not occur.[3] It follows, and the Tribunal finds, that there is no real chance or real risk that the applicant will suffer any harm on the basis of future political instability.
Mental health claims
[1] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036
[2] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023, 20230712115112; History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023, 20230605132913; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023, 20230619094006; 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023, 20230619094205
[3] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023, 20230712115112; and ‘No coup says RFMF Commander', FBC News, 20 July 2023, 20230720090110.
The Tribunal finds that the applicant does not suffer from mental health conditions or suicidal ideation. The Tribunal bases this finding on the applicant’s oral evidence given at hearing on 21 February 2024 where he stated that does not have any health conditions for which he requires ongoing medical treatment. Since living in Australia, he has suffered a minor workplace injury [but] he has received adequate medical treatment for this. In light of this, the Tribunal finds that there is no real chance or real risk that the applicant will experience any harm on the basis of being unable to access or receive appropriate medical attention for mental health conditions, that he will engage in any self-harm or that his life span will be shortened if he returned to Fiji. The Tribunal also finds that the applicant has not caused or experienced any conflict with his family members in the past due to any purported mental health conditions. Having regard to this, the Tribunal finds that there is no real chance or real risk he will be aggressive towards or harm his family members due to any purported mental health conditions if he returned to Fiji. The Tribunal bases this finding on the applicant’s own evidence given orally at hearing that he does not suffer from any mental health conditions.
Indigenous rights and indigenous land rights claims
The Tribunal finds that although the applicant was unhappy with the approach and policies of the previous Fijian government under former Prime Minister Frank Bainimarama in relation to the role traditional leadership systems, he is now more content with the approach taken by the current Fijian government under the new Prime Minister Sitiveni Rabuka who has revived the Great Council of Chiefs and, according to the applicant’s oral evidence given at hearing, intends to change some of the policies of the previous government in respect of indigenous rights and leadership systems. The Tribunal accepts that while a change of government in Fiji may occur in the reasonably foreseeable future, it does not accept that there is a real chance or a real risk that this would lead to any change in indigenous policies that would amount to serious harm or significant harm affecting the applicant.
The applicant expressed concern at hearing that there is limited land in his village and that this would lead to greater demand for land by villagers for economic purposes. While the Tribunal accepts that the applicant and his family may experience economic pressures as a result of this, it finds that the applicant, if needed, will be able to find appropriate employment based on his education qualifications, work experience and professional skills to complement income he would earn from farming the land to support his family such that he would not suffer significant economic hardship that would threaten his capacity to subsist or anything that would otherwise amount to serious harm or significant harm.
The applicant also claimed that the limited amount of land in his village may lead to conflict and violence between villagers over land use and boundaries. The applicant told the Tribunal that conflicts might occur between villagers twice a year but that they are settled through the intervention of the village chief. The applicant also told the Tribunal that the last time that he had been involved in such a conflict was seven years ago. In light of this evidence, and acknowledging the fact that the applicant has resided in Australia for approximately six years, which would have reduced his chance or risk of being caught up in such villager conflict, the Tribunal finds that there is no real chance or real risk that he would suffer serious harm or significant harm on the basis of land disputes with his co-villagers if he returned to Fiji.
Refugee criterion
In light of the findings above, the Tribunal is not satisfied that for the purposes of s 5J(1) the applicant has a well-founded fear of persecution. Consequently, the Tribunal finds that the applicant is not a refugee for the purposes of s 5H. As such, 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 criterion
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).
In light of the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm upon return to Fiji. In respect of the applicant’s claims of that he will experience economic difficulty if he returned to Fiji, the Tribunal finds that any such difficulties are a risk faced by the population of Fiji generally and is not faced by the applicant personally for the purposes of s 36(2B)(c).
It follows that the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
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.
R Guemy

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 1584

14 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction