1907310 (Refugee)

[2024] AATA 2179

1907310 (Refugee) [2024] AATA 2179 (19 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Diana Xidan Tong (MARN: 9359088)

CASE NUMBER:  1907310

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Paul White

DATE:19 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 March 2024 at 4:30pm

CATCHWORDS

REFUGEE – protection visa – Fiji – fear of crime rate – witness to a mutiny – fear of military interrogation – return visits to Fiji with employment opportunities – mental health issues – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, 10 March 1998
BBK15 v MIBP (2016) 241 FCR 150
CPE15 v Minister for Immigration [2017] FCA 591
Makouei v MIMA, unreported, Federal Court of Australia, 6 February 1998
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MZAAJ v MIBP [2015] FCA 47
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998
SZQXE v MIAC [2012] FCA 1292
SZSPT v MIBP [2014] FCA 1245

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who is citizen of Fiji, applied for the visa on 17 October 2018. The delegate refused to grant the visa on the basis that the applicant’s fear of harm has no link to any of the reasons provided in s 5J(1)(a) of the Act. The applicant’s claimed fear of harm relates to a personal matter that falls outside the scope provided in s 5J(1)(a). The delegate was also satisfied that if the applicant had serious concerns regarding his safety upon return to Fiji, he would have sought to apply for protection soon after his arrival in Australia in 2002 or 2003 or on any one of his previous trips to Australia, and that Fijian authorities met the standard of state protection required and the applicant could reasonably expect to obtain protection from the Fijian authorities such that there would not be a real risk of suffering significant harm.

3. The applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The applicant was represented in relation to the review. The applicant gave evidence about his background, his migration history and his claims for protection.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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–5LA, which are extracted in the attachment to this decision.

8. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the state is unable to provide adequate protection against the harm. Where the state is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the state is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the state is willing but not able to provide protection, the fact that the authorities, including the police and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the state is withheld or denied for a Convention reason.

9. 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.

10. Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2B)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

12. The applicant was born on [date] in Suva, Fiji. He is [age] years of age. He is an indigenous Fijian. He is married and has [number] children with his wife: [genders and ages]. [Number] children from his wife’s previous relationship are part of the family: [genders, occupations and ages]. The applicant’s wife and the [children] live in Suva. His wife, who is not currently employed, cares for the children. Previously she was a supervisor at a [business 1]. Neither his wife nor any of the [children] have ever left Fiji. The applicant told the Department in response to the question ‘give details of all residential addresses where you have lived in the last 20 years’ that from [specified year] until October 2018, he lived at [Address 1 in] Fiji, which is about [distance] from Suva. He also claims to have spent time in [Village 1], which is about 2.5 hours by car ([distance]) from Suva.

13. The applicant served in the Republic of Fiji Military Forces (RFMF) Naval Division (Fiji Navy) between [specified dates]. He successfully completed a [specified] course between [specified dates] just prior to his discharge. The applicant worked with the [Country 1] Army as [specified role] from [2003] and was contracted until [specified year]. In January 2012 he went through a personal voluntary release and was released with good conduct. As part of his service in the [Country 1] Army he spent time in [specified countries]. Following his discharge in 2012 [Organisation 1] organised for him to work in Fiji as [an occupation 1] for three months. Between 2012 and 2017 he worked in [Country 2] as [an occupation 2] with [Employer 1], [role specified]. In Australia he is working with a [business 2] doing [specified role] for different companies.

14. The applicant provided various documents relating to his military service, his qualifications, his time with [International Agency 1], confirmation of status from the [Country 1] [Embassy], an oath of allegiance, proof of employment and his access to a preserved pension from the Armed Forces Pension Scheme in Fiji. He also provided a character reference dated 14 March 2019 from [Agency 1] in Sydney. On the day before the hearing, the applicant provided a document from his cousin with whom he resided for two years in Australia in 2018. She is aware that the applicant is seeking protection to remain in Australia and ‘strongly support[s] his application due to the lack of support and resources that currently exist in Fiji for ex-service men like [the applicant]’. Another character reference from a [manager] at [Agency 1] was provided on the day before the hearing.

15. The applicant undertook medical exams prior to obtaining his jobs. He faced no difficulty in passing them. He did not seek medical assistance in Fiji. He has not encountered health issues in Australia. He receives some counselling from [Agency 1] in Sydney.

    Migration history

16. In his statutory declaration (11 January 2024) the applicant stated that he first arrived in Australia in May 2002 for [number] days whilst on R&R from his service for [International Agency 1] in [Country 3]. He next arrived in Australia [in] October 2003 in transit. During questioning at the hearing, he said he might have been in Australia ‘a couple of times’ between 2003 and 2018. When I asked about his Department movement record, he later agreed that he came to Australia six times between 2017 and his last arrival in September 2018. He said he came to Australia several times exploring protection and work opportunities and for shopping while staying with his cousin. In 2018 the applicant arrived on a tourist visa that according to records was granted to him in December 2016. In a statutory declaration dated 12 February 2024 he confirmed, ‘I flew from Fiji and returned to Fiji on six occasions’ from Australia.

17. When asked what his primary purpose was in coming to Australia, he said he came to seek protection and look for work. In coming to Australia, he tried six times to find work and stayed with his cousin each time. He said on the first occasion he came seeking protection and looking for work. He could not find work so went back to Fiji as he had financial issues. He said he was trying each time to get more information about how to apply for protection. The applicant said he saw his lawyers on the last occasion and applied for a protection visa. In the statutory declaration (12 February 2024) he claimed he ‘only sought information to obtain work visas’ during visits and he ‘did not know of protection visas pathway until late 2018’.

18. I asked the applicant about what appeared to be an attempt to avoid mentioning several trips to Australia. He said he told his adviser of his movements. His adviser indicated that she was trying to get more information about whether all the trips were to and from Australia or whether they were from other parts of the world. The applicant had returned to Fiji from his employment in other parts of the world over the years. He last arrived in Australia [in] September 2018 and applied for protection on 17 October 2018.

    Claims to Immigration

19. The applicant’s claims to the Department are summarised by the delegate. The applicant was enrolled as a [soldier] in the RFMF in [specified year] and was based at [a location in] Fiji. He was on duty and witnessed the mutiny that happened on 2 November 2000 at the RFMF Headquarters. The Counter Revolutionary Warfare Unit (CRWU) members targeted the Commander Bainimarama of the RFMF, who later became the Prime Minister of Fiji. The CRWU members were arrested and tortured by the soldiers loyal to Bainimarama. The applicant witnessed the torture of [Soldier A]. [Details deleted.]

20. The applicant said he did not return to work for almost three weeks after witnessing the incident. He was warned by his superior not to disclose what he had seen to anyone or else he would be executed. The applicant was depressed and emotionally affected due to the incident. He requested leave from his superior which was approved for three months. He recuperated with the support and love from his family. He went back to work before the three months ended. He had not disclosed the incident to his family.

21. If he is returned to his country, he thinks that he will be questioned by the elite officers of the RFMF, threatened not to disclose the matter to anyone and taken to the camp and mistreated. He could not seek help from a psychologist due to the fear that his superior would find out. He remained in Fiji because of his wife and children. He cannot relocate because Fiji is a relatively small country.

22. The applicant claims to fear future harm from the military if he returns to Fiji because he had witnessed the torture and abuse inflicted upon the arrested CRWU members by the military soldiers during the 2 November 2000 mutiny against Commander Bainimarama.

    In his application to the Department the applicant wrote amongst other things that he ‘will provide later’ a letter from Major General Sitiveni Rabuka as supporting documentation for his application.

    Claims to the Tribunal

23. The applicant enlisted in the Fiji Navy on [date]. He claimed he witnessed the suppression of a mutiny in November 2000. He believes that he will be interrogated by elite officers of the RFMF and pressured not to reveal details about the violence that took place there. He claims he still has mental health issues because of this incident. The applicant described the incident of 2 November 2000 in substantial detail. He said after the incident he was depressed and could not function mentally. He asked to go home for a period of rest. He was better after three months and returned to work as [specified role].

24. In January 2002 the applicant worked as part of the RFMF for [International Agency 1] in [Country 3]. He completed this service [in] July 2002 and returned to Fiji. He undertook and completed a [specified] course between [specified dates]. Soon after completion of the course he was discharged at his own request on [date] and lived in Suva. He claims he was under surveillance from the front of his home, so he went to his village. He claims his wife and children visited him secretly in [Village 1].

25. After his discharge from the RFMF, he joined the [Country 1] Army. He claims he encountered some trauma in [Country 2] and after seven months finished his service [there]. He returned to [Country 1], undertook psychiatric treatment for two years and was diagnosed with PTSD. He resigned and was discharged from the [Country 1] Army in 2012, notwithstanding an opportunity to remain until [until his contract ended].

26. The [Organisation 1] organised work for him in Fiji in 2012. Following that he worked in [Country 2] ([work pattern]) in [occupation 2] between 2012 and 2017 with a possible extension until 2020. He claims the main reason he worked overseas was for him to escape from Fiji. The applicant claims when he did return home, he hid in his village, believing that military groups would be targeting him and he would be tortured and made to disappear.

27. The applicant said his last arrival in Australia was in September 2018 before the Fiji elections. He claims he consulted solicitors and then learned that Australia offered protection and lodged an application.

28. In his response to the question ‘did you experience harm in Fiji?’ the applicant wrote in his written statement that he witnessed the suppression of a mutiny. He was debilitated by depression and trauma. He was threatened with harm. He claims he made every effort to escape Fiji. When asked in his written statement whether he thinks he’ll be harmed or mistreated if he returns to Fiji the applicant said: ‘I will be taken back to the [base] and mistreated because senior officers would be concerned that I would reveal details that I witnessed on 2nd November 2000.’

29. The applicant claims that in October 2018 during political party campaigns some claimed Bainimarama was a ruthless and brutal dictator. The applicant had no doubt Bainimarama will do anything to stop bad information coming to light about himself in his efforts to win the election.

30. The applicant says he notes that Rabuka’s People’s Alliance is now in power. There is a new commander of the RFMF. The applicant claims Bainimarama approached the commander to conduct a coup to keep him in power. The applicant claims that as a witness of the 2000 suppression of a mutiny he will face significant harm as he has knowledge that could incriminate RFMF soldiers and superior officers who obeyed orders, and this could cause Bainimarama problems.

31. The applicant claims he fears the dominant party will be interested in him for political reasons and after him for sensitive information he possesses in connection with the deceased soldier. He claims the political situation in Fiji remains unstable. The applicant claims authorities cannot protect him and relocation is not possible.

    Tribunal hearing

32. The applicant said there is no reason he can’t return to Fiji apart from the fact that he witnessed this incident in the 2000 mutiny. The applicant claimed to fear future harm from the military if he returns to Fiji because he had witnessed the torture and abuse inflicted upon the arrested CRWU members by the soldiers during the 2 November 2000 mutiny against Commander Bainimarama. In particular, he witnessed the torture and death of [Soldier A].

1. The applicant said at hearing he did not get the letter of support from the now Prime Minister Rabuka but had he done so it would indicate that he was a witness to events in 2000.

2. The applicant claims he has sensitive information and could be a strong witness. I put to the applicant that there is little interest in his information from 2000 that appears to be available publicly. The applicant said he has not been in touch with any of those involved, nor has anyone been in touch with him. No one has tried to contact him about what he witnessed. He said no one has taken a statement from him. I put to the applicant that he claims to have information that no one has asked him about in over 20 years.

3. I put to the applicant that Bainimarama would not be a threat as he is no longer in power and nothing happened to the applicant over the many years Bainimarama was in power. The applicant’s claim is that even though he is not in power he will still have a problem. He has information and he can be a government witness. He said he had heard rumours that they will take the perpetrators to court.

4. I put to him parts of the DFAT information provided in August 2023 that indicated the political situation in Fiji remains stable and that there were no reports of former PM Bainimarama’s supporters pursuing nationals. The applicant said he had not been home for six years. He said things could change at the next general election.

5. I asked the applicant about the claimed surveillance and the applicant said he had seen a couple of cars doing surveillance at his house occasionally. He said this occurred the last six times he was in Fiji.  A small group of people were involved, He has strong suspicions it was people from the military. Later he said he had not seen any vehicles. His wife said they parked in front of his house to do surveillance while he was in the village. He claims the people are looking for him, yet they have never contacted him or tried to contact him and even though they know his village they have not been to his village. He had never met them and neither had his wife.

6. The applicant said he could not say when he was under surveillance. He claimed at hearing that military people used a civilian vehicle while doing surveillance. He knew it was a military vehicle because it had tinted glass. I mentioned I had been to Fiji recently and travelled in many vehicles with tinted glass. I asked how he could tell the difference. He could not clearly articulate how a civilian vehicle used by the military differed from a civilian vehicle not used by the military. He first said it was a special colour and later that it depends on the driver and personnel in the car. I suggested that he would not go back to Fiji regularly if he knew he was under surveillance as he may be fearful. He said he went to the village and there was no surveillance in the village. He kept a low profile in the village. He was able to tell by his wifes description that it was the same vehicle he saw in 2002–03.

7. In sum, at hearing the applicant claims he fears a small group of military personnel he has not seen or ever spoken to, who have never tried to speak to him, yet they have had him under random surveillance for perhaps 15 years. He identifies them as military in a civilian car yet could not describe the vehicle clearly except that it had tinted windows – like many other cars in Fiji. He has never sought to find out why this is happening. He claims he was under surveillance at his home each of the six times he returned from Australia, yet was never there, spending time in his village instead. The applicant made no attempt to contact Rabuka or anyone else to complain about the surveillance.

8. Despite much information on the public record about who was involved in the CRWU mutiny and attempt to kill Bainimarama and the response to it, the applicant claims he is at risk because he is a witness.

9. The applicant said he has had no medical assistance in Australia and has received counselling through churches in Australia and Fiji.

   Post-hearing evidence and submission

10. After the hearing the applicant provided a statutory declaration covering aspects of his claim relating to international travel, surveillance and matters related to being a witness to the event in 2000. An additional 15 pages of country information including a ‘Briefing Paper CRW murder investigation’ with papers from various archives and sources including Amnesty International, some of which relate to others from the incident the applicant witnessed.

11. The applicant’s adviser provided submissions. In sum the adviser submits that the applicant holds a well-founded fear of persecution throughout Fiji because of the real chance that he will be executed, physically abused, tortured or made to disappear, threatening his ability to subsist for reasons of his political opinion as he has knowledge of a seriously incriminating series of facts surrounding the torture and murder of the CRWU members; the country will not protect him against these forms of harm; and in addition the applicant fears that there is a real risk that he will suffer ‘significant harm’ if removed to Fiji, and that he will not be able to relocate or seek state protection within Fiji.

    ANALYSIS, REASONS AND FINDINGS

12. On the basis of the applicant’s place of birth and his Fijian passport presented to the Department, and, in the absence of evidence to the contrary, I accept that the applicant is a national of Fiji notwithstanding the applicant has worked in a number of different countries.  I consider Fiji as the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

13. The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in the Act should he return to Fiji and, if not, whether he is entitled to complementary protection under Australian law. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. I accept that on the day of the mutiny on 2 November 2000 the applicant witnessed some of the violence directed at [Soldier A], a member of CRWU who [died] from injuries received during the mutiny which included an attempt to kill Bainimarama. I accept that following this incident the applicant was traumatised. He was given three weeks off before he returned to his work with the RFMF. The applicant was warned by a superior not to talk about the incident and he has not done so.

15. About a year after the incident, the applicant went on a [mission] to [Country 3] with [International Agency 1] as a member of the RFMF. He returned to Fiji, completed a [specified] course, obtained a good reference from his superior and a discharge before he joined the [Country 1] Army. During his [time] with the [Country 1] Army he served in [specified countries] before he undertook a voluntary discharge. He found employment with the [Organisation 1] in Fiji for three months before returning to international work in [Country 2] in a private enterprise. He worked for five years until 2017. During this period, prior to obtaining a visa for Australia in December 2016, the applicant was nearly always in employment. Over these years he travelled to and from Fiji for his employment, began a relationship in Fiji with his now wife, had [number] children, registered their births and his marriage, renewed his passport and generally carried on normal relations in full view of authorities in his home country. Nearly two months after he obtained his visa for Australia the applicant started travelling to and from Australia. He did so on [number] occasions, going through Fijian authorities each time in a normal manner without apparent interest, interference or questioning. He claims he was hiding in his village on all occasions, yet the military knew of his village, which is accessible from Suva.

16. I find that the applicant’s return to Fiji on so many occasions over the years is not consistent with a well-founded fear of persecution in Fiji arising out of fears from an event in 2000.

17. The period that elapsed between the applicant’s first opportunity to claim protection in Australia and the time he claimed protection may be considered when assessing the genuineness or extent of an applicant’s subjective fear of persecution or significant harm.[1] A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible.[2] The significance of delay will depend upon the circumstances surrounding the delay and the reasons given for the delay. I accept that between February 2017 and September 2018 the applicant travelled from Fiji to Australia on [number] occasions and went back to Fiji on [number] occasions prior to lodging his claim for protection in 2018. On each occasion while in Australia he looked for work, discussed details of his protection claims and sometimes did shopping to take back to Fiji. I do not accept the statement made in his statutory declaration after the hearing that during his six visits he only sought information about work visas and was not aware of the protection visa pathway until 2018. This is contrary to his statements at hearing where he said he investigated protection visas on each visit. In addition, the applicant returned to Fiji on many other occasions since first leaving to work with [International Agency 1] in [Country 3] in January 2002.

    [1] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346 per Heerey J at 349.

    [2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346; Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998; Makouei v MIMA, unreported, Federal Court of Australia, Wilcox J, 6 February 1998, at 6.

18. I find that the applicant’s delay in making an application for protection in Australia is not consistent with him having a well-founded fear of persecution upon return to Fiji.

19. The applicant claims he was under surveillance by RFMF personnel on a ‘few occasions’ in 2001. Tensions were still high in Fiji in 2001 with court cases and military and civilian institutions under significant pressure during the turbulent times following the mutiny. It was happenstance that he was on duty when CRWU stormed into the RFMF army camp. The applicant had no ongoing engagement with any of his superiors or authorities or others following this mutiny of which he was not part. I doubt the applicant was under surveillance on a few occasions in 2001 but even if he was, given the circumstances of the mutiny, the political circumstances at the time in Fiji and the fact that the applicant was soon after chosen for a prestigious [agency] assignment, I do not accept that any surveillance indicates the applicant was of particular interest to the military or authorities for any significant reason. After being told by his superior not to discuss the matter he was not spoken to by anyone about what he witnessed. He has never been asked to give a statement or evidence surrounding the events of November 2000 notwithstanding various enquiries by courts and the military into the events he witnessed.

20. The applicant said he had seen a couple of cars doing surveillance and later said he had not seen any vehicles but relied on his wife telling him about people in front of his house doing surveillance while he was in the village. He claimed that this occurred during the last six times he was in Fiji. He claimed a small group of people were involved yet he could not say who they were, other than ‘people from the military’. Even though he claims the people are surveilling him they have never contacted him, or tried to contact him, notwithstanding they know the location of his home and his village. They seem to surveil his home when he is not there. The applicant could not accurately say when he was under surveillance, describe the civilian vehicle allegedly used by the military or explain why he thought only military vehicles had tinted glass. He later said it depends on the driver and personnel in the car rather than the vehicle. The applicant claimed it was surveillance by a small group of military personnel who appear to have kept his house under random surveillance since 2001. Notwithstanding this claim of being under surveillance, he went back to Fiji time and time and time again. He has never taken any action, never sought assistance and never tried to resolve or discuss why he might be under surveillance or to establish what information those doing surveillance are interested in. [Details deleted.]

21. The applicant’s claim that he was under surveillance by a small group of military personnel because he witnessed an incident in 2000 is not plausible. The inconsistencies in his evidence, lack of clarity about this aspect of his claim and his lack of action in response to the claimed surveillance make his claim of surveillance unbelievable. I reject the applicant’s claim that either he or his family are or were under surveillance during his return visits to Fiji after 2003 for reason of his witnessing the events of November 2000. I do not accept the applicant’s evidence that he has been under random surveillance for nearly 18 years because he was a witness to an incident in 2000.

22. The applicant also claims that it was the 2018 election that triggered his fear of return. He stated:

    In October 2018, due to political parties campaigning in the upcoming elections for 14 November 2018, some parties, like Sodelpa, claim that Frank Bainimarama is to be blamed for the murder of CRW soldiers in November 2000, that he gave the orders for the killings. Bainimarama is a ruthless and brutal dictator and I have no doubt he will do anything to stop bad information coming to light about him, in his efforts to win the election.

23. The DFAT Country Information Report Fiji, 20 May 2022, reported:

    3.32      Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’.

24. The government changed following the December 2022 election and the applicant now claims:

    I still believe those loyal to Bainimarama are targeting people who possess critical information and people are still missing, although there are limited public reports, or much news directly linked to people being targeted for political reasons.

    The current government may be stable, suggested on papers. But I fear something happening behind the scenes, such as it is a widely held belief that Bainimarama approached Kalouniwai to conduct the coup to keep him in power. The RFMF soldiers who tortured and killed four rebel soldiers remain unpunished for these acts and when Rabuka starts investigating these events, I am [likely to be targeted].

25. Following the election in 2022, an update to the DFAT’s country information stated:[3]

    2. Following the 2022 general election, the FijiFirst opposition party holds 26 of 55 seats in Fiji's Parliament. FijiFirst’s political influence was diminished by the suspension (and later resignation) of Opposition Leader Frank Bainimarama after he made “seditious” comments in Parliament, contrary to parliamentary Standing Orders. Former defence minister, Inia Seruiratu, was appointed Opposition Leader following Bainimarama’s resignation. The FijiFirst party wields a similar level of political influence/power to that of an Australian parliamentary opposition.

    Are there reports of the former Prime Minister Frank Bainimarama or those loyal to him or his party pursuing for adverse scrutiny or attention nationals who publicly opposed or criticised the former Prime Minister Frank Bainimarama and his party at meetings, rallies, or in the media or social media platforms while in Australia, if these nationals return to Fiji?

    3. DFAT is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022.

    Are there reports of members of the military pursuing for adverse scrutiny or attention nationals who publicly opposed or criticised the former Prime Minister Frank Bainimarama and his party, either at meetings or rallies or in the media or social media platforms while in Australia, if these nationals return to Fiji?

    4. DFAT is not aware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.

    [3] Country Information Request Report No. 20230621135833 DFAT Title: Fiji Country Information – Political update CIR Preparation Date: 03/08/2023.

26. When aspects of this were put to the applicant at hearing, he said ‘anything could happen’. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. Both the 2018 and 2022 elections were calm and orderly and passed without incident that would cause concern to the applicant. The information above indicates Bainimarama or those loyal to him or his party are not pursuing nationals who publicly opposed him in the manner the applicant predicted. Based on the country information I do not accept that the applicant will face a real chance of serious harm if he returns to Fiji or that his fears concerning Bainimarama and his political opponents are well founded.

27. In his statutory declaration the applicant said that the Rabuka People’s Alliance is now in power. There is a new commander of the RFMF. The applicant claims that as a witness of the 2000 suppression of a mutiny he will face significant harm as he has knowledge that could incriminate RFMF soldiers and superior officers who obeyed orders, and because this could cause Bainimarama problems. The applicant claims he fears the dominant party will be interested in him for political reasons and come after him for sensitive information he possesses in connection with the deceased soldier. He maintains the political situation in Fiji remains unstable.

28. The applicant was in Australia when voters went to the polls in general elections in 2018 and 2022. In the last election none of the nine parties that contested the election secured an outright majority; only four parties passed the 5 per cent minimum threshold required to enter parliament.[4] The FijiFirst Party won 42.5 per cent of the vote securing 26 seats and the newly formed People’s Alliance Party garnered 36 percent with 21 seats, while its coalition partner, the National Federation Party, won 9 per cent of the votes to secure five seats. On 24 December, People’s Alliance Party leader Sitiveni Rabuka was sworn in as Prime Minister after parliament gave him 28 votes to 27 for his opponent, former Prime Minister Bainimarama. International observers assessed the electoral process as free and fair overall. The Australian- and Indonesian-led Multinational Observer Group agreed the outcome broadly represented the will of voters.[5]

    [4] US Department of State Country Reports on Human Rights practices for 2022 – Fiji, 20 March 2023.

    [5] US Department of State Country Reports on Human Rights practices for 2022 – Fiji, 20 March 2023.

29. The new Fijian government under Prime Minister Rabuka has committed itself to democratic government and governance including appropriate standards of conduct for Ministers and listening to a wide range of political views. The government has also made a specific commitment to media freedom and the part it plays in Fiji’s democracy.[6] The reinstatement of the Great Council of Chiefs has occurred.[7] Information indicates that the new government is working hard to weed out corruption, increase transparency and ensure political appointees and community leaders are chosen on merit rather than their connections to elected officials.[8] The government is taking action against former officials who may have abused their powers while in office.[9] Specifically, information indicates the Rabuka government has suspended and is investigating several high-profile public office holders who are perceived as having strong links to or were appointed by the former Bainimarama Government, such as the former Police Commissioner, former head of Corrections Services and former head of the Department of Public Prosecutions.[10]

    [6] (accessed 15 February 2023);

    [7] ‘Fiji Parliament approves reinstatement of Great Council of Chiefs’, PINA, 24 November 2023; ‘Banned for almost two decades, Fiji’s Great Council of Chiefs is back and pushing for greater influence’, ABC News, 4 March 2024.

    [8] Nancy Schneider, ‘Cautious Optimism for Fiji’s Coalition Government - Australian Institute of International Affairs - Australian Institute of International Affairs’, 8 March 2023,  [Sources deleted.]

    [10] 193 and 194.

1. In early March 2023, former Prime Minister Bainimarama quit the Fiji parliament. This followed him being suspended from parliament in February 2023 for three years until 2026 for criticising Prime Minister Rabuka and the Fijian President, who is a former president of the FijiFirst party, in a speech.[11] Mr Bainimarama was suspended for sedition and insulting the President.[12] Mr Bainimarama appeared in court on 17 July 2023, facing charges of perverting the course of justice and abuse of office. He pleaded not guilty and was recently found not to be guilty.[13] Other high-ranking members of the former government, such as the Attorney General, have been charged with abuse of office.[14]

   [11] ‘Ex-Fiji PM Bainimarama, suspended police chief found not guilty’, RNZ, 13 October 2023, ‘Former Fijian attorney-general released on bail after abuse of office charge’, Stuff New Zealand, 2 May 2023 >

   Based upon the country information set out above, I raised at hearing that the political landscape in Fiji had changed significantly, particularly since the December 2022 elections without Bainimarama in power.

2. The applicant stated in his recent statutory declaration and at hearing that the current government is not stable, that anything could happen, and that the situation could change at the next general election. The applicant claims that no matter which party is in power, they will dig up the incident of 2000 and he will be a witness. I accept as the applicant claims that there may well be further enquiries and renewed interest in events of November 2000.[15] I do not accept this gives rise to a real chance of serious harm for the applicant. He has never been spoken to about the events. He has never given evidence or had a statement taken. Even if the applicant is asked to give evidence as a witness to any enquiry or legal proceeding, that does not give rise to a real chance of serious harm for the applicant given the commitments of the government.

   [15] Family Demands New Probe Into 2000 Fiji Mutiny Soldier’s Death: Selesitino Kalounivale Sr Case Reopened Family Demands New Probe into 2000 Fiji Mutiny Soldier’s Death: Se… (bnnbreaking.com)

3. The applicant claims that the situation could change at the next general election. The Federal Court has commented that the use of the reasonably foreseeable future concept in this context indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork, and is intended to preclude predictions of the future that are so far removed in time from the life of the person concerned at the time they are returned to their home country as to bear insufficient connection to the reality of what that person may experience.[16]

   [16] CPE15 v Minister for Immigration [2017] FCA 591.

4. The Tribunal does not accept the applicant’s assertions that former Prime Minister Bainimarama and/or the military are planning to orchestrate a return to power and considers this is not based on probative material but on guesswork and is purely speculative. The military has refused to intervene despite calls from those aligned with the opposition to do so. After the election results were announced in December 2022, the head of Fiji’s military, Major General Ro Jone Kalouniwai, refused to support calls from the (now former) Police Commissioner Sitiveni Qihilo to send troops into the streets.[17] Major General Kalouniwai again reiterated his support for the government last year.[18] On 20 July 2023, Major General Kalouniwai rejected speculation circulating on social media that a coup is looming. He is reported as saying that the military will abide by the law and respect the decision of the people who voted for government, that the country’s coup culture needs to be forgotten and that the constitutional process needs to be followed.[19] On 30 July 2023 the commander of the Fiji Navy and the deputy commander of the RFMF also discouraged coups. The article notes the following:

   “The people of Fiji don’t deserve to go through another coup.” This was the view shared by Fiji Navy commander Captain Humphrey Tawake while speaking to The Fiji Times during the Fiji Navy Day celebrations at Stanley Brown Naval Base in Walu Bay, Suva, this week. “Fiji, as a nation doesn’t need another coup,” said Tawake, who is also deputy RFMF commander of the Republic of Fiji Military Forces (RFMF).[20]

   [17] “Can Fiji Keep its democracy in 2023?”, East Asia Forum, 3 February 2023, “The number behind Fiji’s coup culture”, Australian Strategic Policy Institute, 1 February 2023, “No more coups”, Fiji’s navy commander tells nation | Asia Pacific Report 30 July 2023, ‘“No more coups”, Fiji’s navy commander tells nation’ | Asia Pacific Report dated 30 July 2023, >

   I accept that the current government only holds a one-seat majority. I note that if a decision-maker concludes that there is no real chance of harm presently, it may be necessary to consider whether a change in circumstances that may readily be foreseen could result in a real chance of harm arising.[21] Information from DFAT from 3 August 2023 refers to the political situation as stable and states that the next election will not be held until 2026.[22] While it is accepted that Fiji has endured several coups in the past (two in 1987 and one in 2006), country reports indicate that the country has been politically stable in recent years, with the past elections in 2014, 2018 and 2022 being deemed credible, and that the outcome ‘broadly represented the will of Fijian voters’.[23] The election in 2018 was orderly and free from violence.[24] Further, former Prime Minister Bainimarama, when commenting on the outcome of the 2022 elections, stated: ‘This is democracy and this is my legacy’.[25] Of great significance, as outlined above, is that in July 2023, the head of the armed forces, Major General Kalouniwai, and additionally the head of the navy, who is second in command of the armed forces, are quoted in various news articles as saying there is no threat of a military takeover and affirming a commitment to work with the new government. In a statement made after the decision to suspend him occurred, he reportedly described his suspension as ‘unwarranted and most certainly unjustified’, but he went on to say, ‘however, the decision has been made by parliament … and I have complied with the decision’.[26]

   [21] SZQXE v MIAC [2012] FCA 1292 at [7].

   [22] See s 58 of the 2013 Fiji Constitution, being a minimum term of three years and six months.

   [23] DFAT Country Information Report Fiji, 20 May 2022; the information indicates they were judged to be credible by the Multinational Observer Group led by Australia.

   [24] DFAT Country Information Report Fiji, 20 May 2022 at 2.34.

   [25] ‘Sitiveni ‘Rambo’ Rabuka confirmed as Fiji’s new prime minister’, Aljazeera, 24 December 2022.

   [26] ‘Former Fiji PM Frank Bainimarama quits parliament following ‘unjustified’ suspension’, The Guardian, 8 March 2023.

5. The likelihood that the current coalition will dissolve prior to the next election in 2026 is low based on the DFAT information from August 2023. However, even if the current government did lose its majority before the next election in 2026, noting that FijiFirst do not hold a majority of seats in the parliament as well as the comment from the new head of FijiFirst in parliament that Fiji needs to nurture and protect its democracy, the Tribunal views as speculative or guesswork what the new government would look like, who would be in the coalition, to what extent it would lead to FijiFirst regaining power, the power of the military in the new coalition and how the government would treat the applicant. This is particularly so as prior to the December 2022 election, FijiFirst held a majority of seats in parliament, which it does not now.[27] It is therefore guesswork and speculation that if there is a new coalition government and it contains FijiFirst, which in itself has a low likelihood according to DFAT, it would wield power and act in the manner FijiFirst did prior to the December 2022 elections, when it had an outright majority.

   [27] 27 out of 51.

6. The Tribunal therefore does not accept that a change in circumstances as submitted by the applicant may readily be foreseen. Based on the independent information above and my analysis of it, I find that, if the applicant returns to Fiji now or in the reasonably foreseeable future, he would not face interrogation, arrest, detention, harassment, torture, death or harm amounting to serious or significant harm at the hands of the military, new government, members of the former government, police, former Prime Minister Bainimarama or anyone acting on his behalf as a result of any political opinion or as a result of any imputed political opinion arising from events in November 2000 or for any other reason. I find the applicant does not face a real chance of serious harm should he return to Fiji.

7. The applicant has been ambivalent about issues relating to his mental health. He claims to have faced trauma in 2000, and then he recovered sufficiently within weeks to enable him to go back to work and later join [International Agency 1]. He said he still has mental health issues because of this incident in 2000. He said he could not seek help from a psychologist while in the army due to the fear that his superior would find out. He undertook medical exams prior to his international jobs and encountered no difficulty. He claims he encountered trauma in [Country 2] and undertook psychiatric treatment for PTSD whilst in the [Country 1] Army. He has not had medical assistance in Australia or Fiji relating to mental health issues although he has sought pastoral care from religious institutions in both countries.

8. The applicant has not indicated that he requires psychiatric services, although his cousin states in her supporting statement that there are insufficient mental health facilities in Fiji for ex-servicemen. She says:

   I am aware that [the applicant] is seeking protection to remain in Australia and I strongly support his application due to the lack of support and resources that currently exist in Fiji for ex-service men like [the applicant].

9. The DFAT Country Information Report (at 2.13) states that:

   The law in Fiji 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 including the public psychiatric hospital in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health community organisations provide services, and online resources from Australia and New Zealand might be used by Fijians.

10. While mental health services may not be as readily available in Fiji as they are in Australia, the I am satisfied that the government does provide mental health services in Fiji, particularly in Suva. DFAT (at 2.15) indicates:

    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.

11. The information before me does not indicate that the applicant would be precluded from accessing mental health services for any reason should he wish to avail himself of mental health care some support is available. I do not accept the applicant would face a real chance of serious harm or a real risk of significant harm given the availability of mental health care support in Fiji.

12. I do not accept the applicant faces a real chance of serious harm were he to return to Fiji now or in the reasonably foreseeable future, nor a real risk of significant harm. The CRWU incident occurred over 20 years ago. The applicant’s travels to and from Fiji up until his last departure and his delay in applying for protection undermine his claim that he departed in fear for this reason. The Tribunal does not accept that there is any evidence he attracted adverse attention from the authorities or rogue elements of the military should they exist after he resigned from the RFMF. The above country information as to the treatment of those who were in political opposition to the former regime and military and the efforts of the current government identifies a different political landscape.

13. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Fiji in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returned in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

14. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180])].

15. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. 42. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

16. 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). The Tribunal is not satisfied that there are 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 be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act.

17. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

18. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

19. 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 any of the criteria in s 36(2).

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Paul White
    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.

    
    

15 February 2023).