1907711 (Refugee)

1907711 (Refugee) [2023] AATA 2585 (13 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1907711
COUNTRY OF REFERENCE:                   Fiji
MEMBER:David James
DATE:13 July 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 July 2023 at 2:53pm
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and political opinion – ethnic Fijian with anti-government opinions – government’s socially inclusive programs disfavour traditional rights and values – mental and psychological effects of coup – employment history and prospects – late claim of leaving because of deteriorating relationship – no assessment or treatment sought and no harm to applicant or family since coup – evasive and inconsistent but generally truthful responses – two young children born after application made – country information – change of government and policies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 411(1)(c), 423A, 424AA
Migration Regulations 1994 (Cth)
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 28 August 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 1 April 2019. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with her application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 12 July 2023 to give evidence and present arguments. The Tribunal hearing was conducted in the English and with the assistance of an interpreter in the Fijian and English languages
The applicant was not represented in relation to the review.
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.
In this regard, the Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility; and that a person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (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
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Fiji and provided a copy of her Fijian passport to the Department. Based on this material the Tribunal finds that the applicant is who she says she is, and a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Issues
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection which includes (but is not limited to) the following documents which have been considered by the Tribunal:
·The applicant’s protection visa application form submitted on 28 August 2018 and the accompanying typed responses to questions 76 to 83 of the application;
·applicant’s application for review (1 April 2019) and attached protection visa decision record of 6 March 2019;
·the administrative and movement records of the Department relating to the applicant;
·letter of support (undated) under the hand of [Ms A] and provided to the Tribunal at the hearing by the applicant; and
·letter of support of 7 July 2023 under the hand of [Reverend B], resident Minister of [a] Church, [Locations].
Claims for protection
The applicant in her visa application stated that she left Fiji and came to visit friends and relatives, and this was an opportunity for her to be exposed to and see a wider world outside her small country. She explained that this was the fourth time she had visited relatives and it had a great effect on her life. She explained that she was an indigenous Fijian and had lived all her life in Fiji where there had been a lot of coups. She claims that:
·The effect of the last military coup in 2006 has greatly affected her life since childhood. She now fears that if she returns to Fiji, she will be the victim of the political upheavals that have happened in Fiji that have harmed her psychologically and mentally.
·She fears that her basic human rights would be deprived from her if she was to return to Fiji. As she has experienced having her rights respected in Australia this has resulted in her becoming healthier mentally and physically. Should she return to Fiji, she would be unable to discuss her problems as a youth which were due to the Fiji government’s mistreatment.
·She fears that if she returned to Fiji, she would not be able to criticise the government and that she would be reprimanded if she did so. She fears that the absence of free speech might worsen her depression and she might commit suicide.
·She does not feel safe going back to Fiji, because the current government (of 2018) is taking away her right as an indigenous Fijian. She is a strong advocate of human rights and advocates for traditional values to be maintained. As the current government maintains all Fijians are equal, the rights of the indigenous Fijians as custodians of the land, has been taken away and this has resulted in her becoming angry and depressed.
·She sees the situation in Fiji as one that is not safe for her. She has become aggressive and angry towards her children because of her anger at the government. However, when she left Fiji her psychological stress and depression was reduced.
·She fears that if she returns to Fiji things will get worse and her life will be full of fear as there are lot of restrictions in Fiji, and people are living in fear and cannot trust one another for fear of being reported to the government. If she returns to Fiji, her life may be shortened because of her fears.
·She cannot seek help or protection from an authority as the government is the organisation causing her fear.
·She cannot relocate to any other part of the country as she needs to be with her parents for support.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 6 March 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant is a native Fijian and that she may have felt abandoned by the current government’s socially inclusive programs and felt that the traditional values of Fijians was not respected. The delegate also accepted that there have been some restrictions upon the rights of free expression in Fiji. However, the delegate did not accept that the applicant had a high political profile or was a known vocal critic of the government. Additionally, the delegate was not satisfied that the applicant’s mental health problems were an intended result of government policies and that the applicant had been targeted so as she would suffer a psychological illness. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 15 June 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 12 July 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Review hearing – 12 July 2023
The Tribunal hearing was conducted at the Brisbane Registry and in the English language with the applicant appearing as requested by her via video-link.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to her understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that she understood the criteria and that it had earlier been explained to her by a lawyer.
Given the applicant appeared unrepresented at the hearing the Tribunal provided an outline of the refugee and complementary criteria to the applicant, who then acknowledged that she understood the criteria.
As to the applicant’s current circumstances, she explained that after having travelled to Australia on several occasions (5 times between 2016 and 2018) she arrived in Australia most recently [in] July 2018 to visit her sister in [City 1], New South Wales. She stated that she stayed with her sister and her family until the middle of 2019 at which time she was [pregnant] with [Child 1]. She said she left [City 1] and travelled to [City 2] where she stayed with her mother and her mother’s partner. [Child 1] was born in [City 2] on [Date]. She told the Tribunal that [Child 1]’s father [was] a permanent resident in Australia and lived and worked in [City 1], New South Wales.
The applicant told the Tribunal that her mother had come to Australia in 2015 and had made an application for protection because she had been tortured by the Fijian Government.
The applicant told the Tribunal that when [Child 1] was about [Number] months old, she left [City 2] and returned to [City 1] where she again lived with her sister who she said was a permanent resident of Australia. She explained that she stayed at [City 1] until [Child 1] was [Number] years old and then she returned to [City 2] and later gave birth to her second [Child] who was born on [Date]. She explained that [Child 2]’s father was [Mr D] and that he was also an Australian permanent resident who now resided in [City 3], New South Wales. The applicant told the Tribunal that she was still in a relationship with [Mr D], [Child 2]’s father.
The applicant told the Tribunal that she also had a [Age]-year-old [child], who was in Fiji and resided with her sister, who lived with her husband a [Church] Priest and their family in the interior of Fiji.
The applicant told the Tribunal that she had recently completed her training in [Subject 1] and had commenced working at [a Workplace 1] three weeks ago. She explained that she had earlier been employed for a period in [City 1] at a [Workplace 2]. She told the Tribunal that she very much liked her new job, and wanted to remain in Australia so that she could keep working in [Work sector 1], obtain a good wage, that would allow her to financially help her family in Fiji; and in time bring her [child] to Australia so that [he/she] could obtain a good education.
When asked why she had decided to stay in Australia in 2018, she told the Tribunal that she had originally come to Australia to visit her sister. She said that while in Australia on this occasion she became aware of the totally different life she could have in Australia, and she could see that she could start a new and better life here in Australia.
She told the Tribunal that she had been involved in a relationship with a member of the military in Fiji before coming to Australia. She explained that she had become involved in this relationship while she had been at school and that they had been together for six years. She said that her partner had not been able to get work in Fiji and so he had joined the [military] and had then started to distance himself from her.
The applicant raised with the Tribunal that she had left Fiji due to her deteriorating relationship with her then partner. In response to the Tribunal discussing this claim as a ‘new claim’ and explaining the provisions of s 423A of the Act to the applicant and the Tribunal’s obligations to draw an adverse inference as to the credibility of the new claim without the applicant providing a reasonable explanation as to why she had not earlier raised this claim and/or evidence with the original decision maker. The applicant then in reply explained that their relationship had actually broken down before she left Fiji, when she had fallen pregnant to her partner with her now [Age] -year-old [child] who remains in Fiji living with her sister. Under further questioning she clarified her relationship with her [child]’s father indicating that they had separated without incident in 2009 prior to her [child]’s birth in [Year].
The applicant further explained her decision to remain in Australia by explaining that the reasons she remained in Australia and had applied for protection was that she wanted to support her [child] back home and that there were better employment prospects for her in Australia rather than at home in Fiji.
In reply to the Tribunal’s question which was to the effect that, had she remained in Australia because of her belief of there being better employment opportunities for her so as she could earn a living and support her [child] in Fiji and her [children] here in Australia, the applicant replied; Yes.
When asked whether her only fears of harm as to returning to Fiji where that she would not be able to obtain employment and/or earn the same level of wages, the applicant’s reply was; Yes.
Under further questioning the applicant agreed that the poor employment opportunities and lower wages that were on offer in Fiji were her only fears as to her returning to Fiji.
When questioned as to her work history in Fiji the applicant denied that she had ever been employed in Fiji. When the Tribunal highlighted the details of the applicant’s protection visa application in which she had reported that she had held three overlapping jobs at [Workplaces] from 2007 until she had departed for Australia in 2018. The applicant told the Tribunal that those positions had only been training placements for her [studies] and that she had not been actually employed at those [workplace].

The Tribunal in accordance with the procedure provided in s 424AA of the Act, highlighted to the applicant that according to her protection visa application her certificate in [Subject 2] had been completed by her in 2005 and 2006, and it seemed to the Tribunal most unlikely that she was still completing training placements throughout the period of 2007 to 2018. The Tribunal drew the applicant’s attention to her visa application form where she had stated that she had worked at [Workplace 1], from 2007 to 2018, also at [Workplace 2] from 2010 to 2018, and at [Workplace 3] from 2015 to 2018.
After being informed that she could have time and/or an adjournment to consider the concerns of the Tribunal in regard to her stated lack of employment and that her evidence in that regard was contrary to her statements as to employment and education in her application form. The applicant after several lengthy delays and requests for her to reply accepted that she had held three part time overlapping positions of employment in [Work sector] in Fiji in accordance with the information she had provided to the Department in her visa application form.
The applicant after a further lengthy delay and pause in her evidence told the Tribunal that she had completed an orientation with [Workplace 1] after she had completed her studies and then had remained there and had also taken on positions that were part-time at [Workplace 2] and [Workplace 3]. She further explained that she was only a part-time employee at these [workplaces] and had not ever received proper wages.
The applicant when asked why she had evaded this question and falsely stated that she had never worked in Fiji, again paused and ultimately said that it was all a long time ago and that she could not remember these details. When asked again to explain why she could not remember these details now, but she had done so when she applied for the visa, the applicant did not provide any response or reason to the Tribunal as to her differing recollections.
The Tribunal again asked the applicant to explain her fears as to her returning to Fiji. The applicant in reply explained that she didn’t know whether she could find an opportunity to work in Fiji like the opportunity she has here in Australia. She also said she won’t get the same salary that she gets here in Australia. She explained that with the salary that she gets in Australia it allows her to help her family in Fiji especially her [child]. She further stated that if she stays in Australia, she will be able to get her [child] to Australia in the future where [he/she] can get a better education.
The applicant also said that she didn’t know where she could start again in Fiji, and how she would be able to support herself if she returned to Fiji.
In reply to the Tribunal questioning her as to why she could not return to the [Work sector] in Fiji given her previous Fijian work history, she explained that she loves her current work and had recently completed her studies in [Subject 1] and so she did not want to return to [that] work in Fiji.
In response to the Tribunal asking the applicant to explain her claims for protection as she had outlined in her application, the applicant was initially unable to describe those claims and only after the Tribunal provided a summary of those claims, was she able to provide some explanation.
The applicant told the Tribunal as to the effects of the 2006 coup that her mother had been detained and taken to an army base, and that she recalled as a child hearing guns shots in her community during the coup and that had all upset her. The applicant told the Tribunal that since the last coup nothing adverse had happened to her family and that no members of her family had been detained, arrested and/or questioned by the police, the military or any other section of the Fijian government.
When questioned as to whether she had ever sought any counselling and/or any psychiatric or psychological assessments and/or treatment, the applicant stated that she had not sought any such assistance in Fiji or in Australia. The applicant under further questioning told the Tribunal that but for being afraid at the time of the coup she had not since suffered from any medical and/or psychological problems that arose from the coup.
In relation to her claims about a loss of human rights and land rights she explained that in the past under the former government, Fijians had not received land payments for their traditional ownership of land. However, she told the Tribunal that she understood that changes are now underway with the new government. As to her ability to criticise the government she agreed that she had never in the past been involved in any criticism of the government and that again things have changed since the recent change of government.
The Tribunal questioned the applicant as to why she had travelled to and from Fiji and Australia on five previous occasions between 2016 and 2018 before remaining in Australia in 2018 given her alleged fears as claimed. The applicant agreed that she had not been persecuted as she had claimed in her application, that she had not suffered any harm, or held any fears of persecution or of significant harm. She stated that she just wanted to stay in Australia where she could have a better life and earn better money.
In discussions as to the country information as outlined below at paragraphs 57 to 59, the applicant replied that she generally agreed with that information but for noting that the public servants in her community had not yet got their pay rises which the new government had promised nor had education been made free for all members of the community.
When asked whether she wished to make any final statement or submission to the Tribunal the applicant queried whether she could now, at the hearing before the Tribunal, switch or change her visa application to an employment application.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
Country information
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including ‘Health’ at 2.11 to 2.12 in which it is stated that:
Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.
Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
‘Mental Health’ at 2.13 to 2.15 where it states that:
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.
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.
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.
‘Political Opinion (Actual or Imputed)’ at 3.25 to 3.39 where it states at 3.25 and 3.30 that:
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.
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 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 (see Media).
And ‘Conditions for returnees’ at 5.28 where it is reported that:
DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.
The Tribunal has also considered other sources of recent country information since the December 2022 Fijian elections and the subsequent change of government, including the Lowy Institute’s report; ‘Fijis New Politics’ of 17 January 2023, in which in part it is reported that:
Fiji’s 14 December 2022 election will go down as a momentous occasion in the nation’s history – including for potential impacts on Suva’s diplomatic ties with Pacific partners.
Immediate tasks identified by new Prime Minister Sitiveni Rabuka’s tripartite coalition include the revival of the pandemic-scarred economy, the re-examination of foreign relations, and the restoration of democratic institutions, which never quite recovered from the battering of the 2006 coup.
The election ended the 16-year reign of the Fiji First Government headed by Frank Bainimarama, the country’s larger-than-life figure after seizing power in 2006, before winning elections in 2014 and 2018. Bainimarama’s military background coupled with Fiji’s “coup culture” had raised concerns about a smooth transfer of power amid fears about the military being called to assist police. For two weeks after the new government was finally sworn-in on Christmas Eve on a slim, three seat majority in the 55-member house, the country was on edge as tensions between the former and successor governments intensified…[9]
[9] ‘Fiji’s New Politics’, Shailendra Bahadur Singh, Lowy Institute, published 17 January 2023 Fiji, - >
And the Centre for Strategies and International Studies article ‘A New Era in Fijian Politics’ in which it was reported that:
…Rabuka’s government has wasted no time in reversing numerous vestiges of Bainimarama’s long tenure. This includes the release of withheld funding for the University of the South Pacific, which is critical to not only Fiji but the wider Pacific, as well as permitting the return of the institution’s exiled vice chancellor. Monetary payments were also announced for 200,000 low-income Fijian families to assist with schooling costs, as well as an infusion of funds for Fiji’s beleaguered school system. MPs were given another pay cut bringing their earnings down 30 percent from pre-pandemic levels. Rabuka’s government has also signaled its intent to roll back media restrictions that were one of the most egregious features of the Bainimarama era. Alongside these popular measures, Rabuka’s government has exercised its prerogative to overturn appointments made by the previous government to diplomatic missions, government agencies, and institutions…
… China is also very much on the minds of all those watching Fiji’s new government. China’s influence in Fiji and elsewhere in the Pacific surged during the Bainimarama era. Indeed, the international sanctions imposed on Fiji after the 2006 coup presented opportunities for China that were not missed. Rabuka has stressed his openness to work with all partners, including China and at first seemed to “chide” traditional partners (Australia, New Zealand, the United States, and the United Kingdom) for continuing to operate with outdated colonial mindsets. Yet on January 28, Rabuka terminated an MOU with China on joint police training. In good news for Fiji’s traditional partners, Rabuka reasoned that Fiji and China’s “democracy and justice systems are different so we will go back to those that have similar systems with us.”[10]
[10] ‘A New Era in Fijian Politics’, Patricia O’Brien, Centre for Strategies and International Studies, published 7 February 2023 - https:/>
The Tribunal notwithstanding the applicant having been evasive and having initially provided evidence contrary to her application as to her employment history, and not having provided any oral or documentary evidence in support of her claims, did find the applicant to be generally truthful in her responses to the Tribunal’s questions.
The Tribunal on the evidence before it accepts the applicant is an indigenous Fijian and that she may have felt that the previous Fijian government through its anti-discrimination programs had not respected and supported indigenous Fijians through their government policies which had previously provided land recognition, land payments and free education to its indigenous citizens.
However, given both the relevant country information as outlined above at paragraphs 57 to 59 and the oral evidence of the applicant at this hearing the Tribunal does not accept that the applicant has held or does hold any fears of persecution involving serious harm for the reasons outlined in s 5J(1)(a) of the Act.
In this regard it was the applicant’s clear and unambiguous oral evidence which she repeated several times during the hearing that her reasons for making her application for the visa and seeking to remain in Australia was limited to her belief that she can have a better life here. She further explained that she has better employment opportunities and a greater earning capacity available to her here in Australia. It was also her evidence that Australia provides for these reasons provide her with better opportunities for her to support herself, her two [children], and her [child] and other family members in Fiji.
It was also the applicant’s oral evidence during the hearing on several occasions that she had no fears of persecution, of serious harm, and/or significant harm as to her returning to Fiji.
Effects of the military coup of 2006
The applicant claims the change of government in 2006 greatly affected her life and that she fears that if she returned to Fiji, she will be the victim of further political upheavals and she will be harmed psychologically. She further claims that she fears her basic human rights would be deprived if she was to return to Fiji and as she has experienced having her rights respected in Australia, she has become healthier.

As outlined above at paragraphs 63 and 64 the applicant did not provide any oral or documentary evidence to the Tribunal in support of these claims.
It was the applicant’s evidence in response to the Tribunal’s questioning about these claims that the applicant had felt scared as a child during the 2006 coup after hearing gun shots in her community, and when her mother had been detained at an army base for a period of time during the coup. However, the applicant did not provide any further details to the Tribunal as to why her mother had been so detained and/or questioned by the army during the coup. It was though her evidence that her mother and other members of her family were not further pursued by the military and/or the police after the coup and that her family had not been since discriminated against or persecuted in any form since the coup.
As to the applicant’s psychological and mental health it was the applicant’s evidence that but for feeling scared during the 2006 coup, she had not actually suffered any medical, psychiatric or psychological illness or issues since the 2006 coup. She also stated that she had not in Fiji and/or in Australia sought and/or received any such medical and/or psychological assessment, treatment and/or counselling.
But for the applicant’s evidence that indigenous Fijians had not received the same benefits following the 2006 coup, the applicant did not provide any evidence that she had been personally disadvantaged or targeted by the then government’s anti-discrimination policies. Further her evidence was that things have now changed or were changing for the better since the recent change of government in Fiji.
The Tribunal for the reasons outlined above, finds that the applicant’s fears arising from the effects upon her from the 2006 military coup are not well-founded
Actual and/or imputed political opinion
The applicant claims that if she returned to Fiji, she would be unable to criticise the government and would be reprimanded if she did so. She further claims that the current government (former government of 2018) is taking away her indigenous rights and as she is a strong advocate for those rights, she will become depressed and with the absence of free speech she may commit suicide as she has become angry. She further relies upon her having felt that her psychological stress and depression reduced when she left Fiji and came to Australia.
As outlined above at paragraphs 62 and 63 the applicant’s evidence at the hearing was that she had not, nor did, have any fears of harm arising from any form of persecution or any fears of significant harm if she was to return to Fiji. It was the applicant’s clear evidence that she had come to Australia in 2018 to visit her sister and that she then decided to remain in Australia for the lifestyle, economic opportunities and future education opportunities that were available to her children.
The applicant also told the Tribunal during the hearing that but for being scared as a child during the 2006 coup she had not ever suffered any psychiatric, psychological or other medical issues yet alone, any arising from stress and depression because of her treatment in Fiji. Additionally, the applicant informed the Tribunal that she has never sought out any psychiatric or psychological assessment, treatment or counselling in relation to any stress or depression. In fact, there was no evidence before the Tribunal that the applicant had ever suffered from any significant stress or any depression whilst in Fiji or in Australia.
The applicant also did not provide any evidence to the Tribunal of any involvement on her part in actually criticising the former government and/or advocating for any indigenous rights in Fiji or in Australia. The Tribunal in this regard, finds that the applicant has not obtained an anti-government profile with the Fijian authorities.
For the reasons above the Tribunal is not satisfied that the applicant’s claimed fears of persecution because of any political and/or imputed political opinion are well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Fiji.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2023] AATA 2585

13 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Appeal