1907711 (Refugee)

The applicant, an ethnic Fijian, sought review of a decision to refuse her a protection visa. She claimed that due to her anti-government opinions and advocacy for traditional Fijian values, she feared persecution if returned to Fiji, particularly in light of past coups and current government policies that she believed diminished the rights of indigenous Fijians. The dispute concerned whether she met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically whether she had a well-founded fear of persecution or a real risk of suffering significant harm upon removal to Fiji. The matter was before the Tribunal for review.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant possessed a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as defined by section 5J(1) of the Act, and if there was a real chance of such persecution upon return to Fiji. Secondly, if the refugee criteria were not met, the Tribunal had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Fiji, the applicant faced a real risk of suffering significant harm as defined in section 36(2A) of the Act.

In its reasoning, the Tribunal considered the applicant's claims in light of the relevant country information and the legal tests for refugee status and complementary protection. The Tribunal noted that the applicant's stated reasons for leaving Fiji were to visit friends and relatives and experience a wider world, rather than an immediate flight from persecution. While acknowledging the applicant's stated psychological and mental distress stemming from past political upheavals and her perception of diminished rights as an indigenous Fijian, the Tribunal found her responses to be evasive and inconsistent on some points, though generally truthful. Crucially, the Tribunal observed that the applicant had not sought any assessment or treatment for her alleged mental and psychological harm since the 2006 coup, nor had she or her family experienced any harm since that time. Furthermore, the Tribunal noted the birth of two children after the application was made, and the existence of country information indicating changes in government and policies in Fiji. The Tribunal applied the established legal standard that a "real risk" of significant harm requires the same threshold as a "real chance" of persecution.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a protection visa. Having found that the applicant did not meet the criteria for refugee status or complementary protection under section 36(2) of the Act, the Tribunal concluded that it was unnecessary to assess whether she had a right to enter and reside in a country other than Fiji.