1908452 (Refugee)

1908452 (Refugee) [2023] AATA 2435 (17 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908452

COUNTRY OF REFERENCE: Fiji
MEMBER:David James
DATE:17 May 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2023 at 12:33pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to the military government – loss of government employment – whistle-blower – mental health issues – change of government in Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962
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 9 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 18 September 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 6 April 2019. The applicant on 19 April 2019 provided a copy of the delegate’s decision to the Tribunal.
As noted above, the applicant provided a copy of the delegate’s decision with his 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 15 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
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.
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
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 he 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.
Claims
The applicant in his visa application referred to his ‘Statement of claims of Protection’ which was titled ‘Personal Statement’ as outlining his claims. This document was received by the Department on 19 September 2018 and in part and as relevant stated that:
… I was born in [Town 1 in] Australia when my father came to study back in [specified year]. We were fortunate enough that we weren’t in Fiji when the first military coup occurred in May 1987. Many of my relatives and family friend suffered tremendously from that first two, leaving many unemployed, distraught and an impending struggle over the following years after the coup. As, also well-known, Fiji had undergone another two coup since then, in 2000 and the latest in 2006 taking Fiji back decades in its economy and development.
Following the 2006 military takeover, my life and future plans had taken a downturn in life, beginning with my studies where I had to pull out from tertiary studies as I was a recipient of a government scholarship at the time which became dissolved following the takeover including certain government departments that underwent drastic changes to its system. Following my release from university, it took me two years before I could find another opportunity in life as Fiji was facing hard times with international sanctions under an undemocratic government in which the economy was being greatly affected and obvious with little to no opportunities for personal development, especially to the younger generation. Following the 2006 military takeover, I had personal differences against the military government because of the struggles I had to face emanating from that coup and those views I have carried on with me till this day which is a struggle under this government as persecution of individuals that speak out against the government is a common occurrence even at the Parliament level, with opposition members facing disciplinary measures, penalties and taken to task by government forces.
Over the past 10 years, I have been emotionally drained from the struggles I have been facing over the years. I was forced to resign from my government job as I saw little to no opportunity for development and promotion, even due to the fact that I accumulated nearly 10 years of experience but any difference of view against the current government would force anyone to be a victim of mistreatment especially under the government administration which I believe played a big role in my stagnant nature of employment. It came to a point where I just couldn’t find the energy to attend work as I was constantly depressed and frustrated and this would be evident at home where my parents would witness, on a daily basis, the state of emotion that I would be in. I couldn’t continue to put myself in such a situation which was taking a toll on me as I felt discriminated and treated as an outcast in my work environment and especially being young, it wasn’t worth putting myself through such situations…
… Of all the concerns expressed on the current government leadership, one stands out above everything else and that is the presence of China in the Fiji Islands, let alone, in the Pacific. With the current government’s “Looking North” policy, Australia and New Zealand have been left out and the strong presence of China has stepped in, aggressively taking over development projects and infrastructural developments all over the country including loaning financial assistance to the Fiji government… I don’t see a safe and steady future for me in Fiji as I have undergone emotional stress and depression following the effects the 2006 military coup had on me and my family over the following years, I have felt threatened to keep my views on the government to myself including the Chinese influence that is occurring throughout Fiji. My work involved me working with communities around Fiji and I have been treated as an outcast in many communities and work environment, hence, the reason why I had to resign and find a safe and stable environment here in Australia and also considering that I also already have family here.
I have no intentions of returning or setting up my life in Fiji as I have faced discrimination from my views and beliefs and been through too many emotional stress and depression modes where I struggled a lot, especially feeling threatened from communities and personnel’s that shared contrary views and I would not be able to find employment in Fiji any more to be able to survive. Personal contradictions to the government is harmful to my livelihood and this filters down to community levels where government sympathisers will outcast, discriminate or worse, in many cases, being physical and emotional harm to you and this is happened and will continue to happen to me under this current government system if I decide to return to Fiji and I do not want to face that risk…
… Seeking help in an environment that is concurrently excuse exuding an atmosphere or condition of discrimination against me and my family is oppressively challenging and emotionally exhausting hence seeking help outside of the environment of Fiji is the only logical option that would warrant a free, open and safe environment to be able to acquire the needed help and assistance and would allow a much relaxing and healing process for me. There have been several cases of people being criminally charged for voicing their concerns and opinions on their contrary political beliefs and views with individuals being targeted in and outside of the political arena, so I feel it is much safer for me to get out of the country especially during this election is where tensions are flaring, and cautiousness needs to be adhered to so as not to be victimised.
I cannot find solitude in Fiji as a discriminative environment is a driving factor of the suffering and depression my family and I had to endure over the years. I cannot go to my village as that is where my whole family unit is and originates and I cannot put them in a risky position of being targeted or harmed, hence, the only option I see as safe is to flee the country and Australia plays a big part in my life as this is where I was born and lived the first five years of my life and also having family here helps a lot in terms of support. I do not see any other country I could go to. Since the 2006 military takeover, government officials that were removed had also family and relations that got affected also, discriminated and suffered tremendously and even till now, any opposition against the government would have families also targeted.
… I don’t see a possible safe future for myself after every explanation I have just stated in this document. I’m not seeking for much but just a chance to build a free, healthy, safe and new life in Australia.
From a review of the applicant’s ‘Statement’ the Tribunal has summarised the applicant’s claims as being that:
·That there was a ‘downturn’ in his life following the 2006 military coup which resulted in the termination of his government scholarship for his tertiary studies, and a downturn in the economy resulting in a lack of employment opportunities which resulted in him taking two years to find another (economic and educational) opportunity.
·He has ‘personal differences’ with the military government including opposing the Government’s ‘Looking North’ policy and financial engagement with China.
·He believes that individuals who speak out against the Government are commonly persecuted.
·He has found the past [time period] emotionally draining due to the struggles he has faced. He was forced to resign from his government job as he saw little to no opportunity for development and promotion despite his almost ten-years-experience and believes that his views against the Government hindered his career.
·He could not find the energy to attend work and was constantly depressed and frustrated, and he could no longer put himself in that position and it was taking a toll on him.
·He believes it is risky to voice his concerns on the state of his country as he has experienced discrimination and been treated as an outcast and could not undergo such emotional stress at his age.
·He has no intention of returning to Fiji as he believes he will be unable to find employment or survive and could even be physically or emotionally harmed by government supporters.
·He finds seeking help in Fiji depressingly challenging and emotionally exhausting and there have been instances where those in opposition to the government have been charged so he believes it is safer for him not to be in Fiji.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 9 March 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant holds views against the current Government (now former) of Fiji. However, the delegate noted that there was no information before the Department that identified the applicant as a high-profile opposition supporter or that the applicant had any profile in Fiji or was of interest to the Fijian authorities as a result of his views or for any other reason. The delegate found that the applicant did not have a profile that would bring him to the attention of the Fijian authorities. As to the issue of employment the delegate found that the applicant felt he had no choice but to resign his government job but that there was no information before the delegate that his employment had been terminated for his political views. Given the applicant had been unemployed since 2017 and been supported by his family, the delegate found that there was no information to suggest that the applicant would be unable to support himself in Fiji as he had previously done so for a significant period time. As to the applicant’s claim of being under significant stress the delegate found with reference to the relevant country information that there was no information to suggest that the applicant would be denied access to appropriate healthcare upon his return to Fiji. 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 21 April 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 18 May 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.
On 22 April 2023 in response to the Invitation the applicant requested a change of hearing date due to his scheduled work roster for the week of the hearing date. The Tribunal in reply on 4 May 2023 granted the applicant’s request for a re-scheduling of the hearing and invited the applicant to attend a hearing on 15 May 2023 at 9:30 am at the Brisbane Registry of the Tribunal.
Pre-hearing submission
On 6 April 2019 and 15 April 2019, the Tribunal received a series of copies of media reports, letters, email correspondence and complaints as to Chinese investment in Fiji and the operations of [Employer 1] (the applicant’s former Government employer) including reports of corruption charges against a former [Manager 1] of [Employer 1]. This material was accompanied by a document under the applicant’s (unsigned) hand titled ‘Appeal Statement’. In the applicant’s statement he discussed and repeated his claims and provided further information as to his alleged targeting arising from his complaints of corruption as to his superiors at the [Employer 1]. The applicant’s statement contained the following headings:
·Complaints I Carried Out During My Employment In The Government Sector;
·House Fire; and
·Final Remarks.

Under the heading of ‘Complaints I carried Out During My Employment In The Government Sector’ the applicant stated in part and as relevant that:
I was forced through degrading job with [Employer 1] as I didn’t feel like I wasn’t valued considering the fact that I had been with the institution for over [number]-years-experience. My views against government may not be sufficient enough for your office to understand why I left the [Employer 1] but my actions whilst at [Employer 1] spoke volumes on why I felt I was a target. Back in 2014, I cannot recall specific date but I had secretly lodged a complaint to [Authority 1] on the long serving civil servant and [Manager 1] of the [Employer 1] then – [named]. The [Manager 1] then… Had been serving as [Manager 1] of [Employer 1] for about [period] being appointed by the [agency’s directors] consisting of senior government officials, obviously after review of performance and duties, the [Manager 1] was continuously being extended [their] position. Following my complaint, I had a meeting with [Authority 1] officials and lawyers who kept my identity and complaint confidential. I was able to convince [their] officials to undertake an investigation on the [Manager 1] as I believed as Fiji was still under an undemocratic government at the time, corruption was being played out throughout the government system and I believe many have benefited during this time. Due to my complaints, the [Manager 1] – [named] had been investigated upon for several months until February 2015 [and] was eventually charged with corruption practices…
… Through an anonymous email, I also emailed the [leader] of [Employer 1’s directors] appointed by the [Official 1] – [named], including a board member who was, at that time, [a senior manager] for [a section within Agency 1] – [named] (currently the [Manager 1] of [another section] under the [Agency 1]), to highlight their lack of responsibility towards their duties…
[In] December, 2015, I had emailed the then [Official 1] to express my concern and complain on the newly appointed [Manager 1] of the [Employer 1] on unprofessional and subpar performance on the overall running of [Employer 1]. My complaint was acknowledged by the [Official 1] in which he assured it would be kept confidential, however, during a brief evaluation by the officials from the [official’s] office to [Employer 1], my email correspondence with my name attached to it was shown to the [Manager 1] and senior staff at [Employer 1] and I found out about this through a colleague of mine who had read the complaint document from the [Official 1] with my name highlighted on it… From that point onwards, I had a mark on my back and was a target. The investigation did not last and eventually nothing expired from the investigation so I was left at [Employer 1] exposed with the [Manager 1] and senior staff knowing for a fact that I was the complainant and possibly the same complainant that had the previous [Manager 1] removed… It was at this point I had a hard time at [Employer 1] knowing now that the [directors] and [Agency 1] were now aware of a possible individual responsible for the negative limelight [Employer 1] was facing, especially being presented in the media. After knowing that the [Manager 1] was not gonna be thoroughly investigated upon and eventually the investigation closed by the [Official 1], I felt I had also a bigger target with the [Agency 1] and the [Official 1] himself, considering the fact that he assured me through email that my complaint was gonna be confidential but later took back his assurance and revealed my email correspondence of complaint to the [Manager 1] and senior staff at [Employer 1]. My pay was very low for a guy who has valuable experience in years in my work and I knew nothing was gonna be done to change that after more than [number] years at [Employer 1]. After this situation I continued working with [Employer 1] for another year or so of little to no opportunities for me as I felt they were being closed against me for what I had done… After the [Manager 1] had finished [tenure] as [was] going to [retire], another [Manager 1] was appointed in 2017 who was a senior staff of the [Agency 1], appointed by the [Official 1]. It was after this that I knew I had to leave [Employer 1] and there was nothing positive for my future there as I was now a target of mistreatment for what I had done, especially to senior government officials with the knowledge of [the Official 1]… Even to this day, the former [Manager 1] [named] has still managed to evade conviction after several years now has [the] case is continuously pending in the second former [Manager 1] has been able to continue employment with the [section within] the [Agency 1] and is heavily involved within the [relevant] sector government and private around Fiji and the Pacific region…
…These 3 accounts of my actions against senior government officials had ruffled a few feathers within the government sector as I was active and not afraid to act out my right to justice, streaming down to my employment status at [Employer 1] denying me rights to a fair wage in correlation with my workload and position as [an occupation 1 officer] and Fiji nationwide. I had emailed the [Manager 1] [named] requesting for a review of on my salary back in 2015 before the complaint saga and two years later, I was still being mistreated unfairly paid especially within the government sector, it was obvious I was being targeted and forced to quit…
Taking into account that the only experience I have a accumulated over the years was at [Employer 1], without any qualifications, limits my opportunities to other sectors of work. There is only one in the Fiji Islands and without any formal qualifications that would branch out to other sectors, I will not be able to find employment…
As to the heading of ‘House Fire’ the applicant stated in part and as relevant that:
… I had to undergo a dramatic experience not only for me but also for my family. [In] August, 2016, our family home had been burned down. Not only did we lose everything in the fire, we also lost [a young relative] who perished in the fire…
Returning to Fiji will deftly put me in a situation where I would not be able to afford supporting my parents and myself and finding work in my situation will be as difficult as I feel my past actions of consecutively causing chaos among senior officials has tainted my name and chances. I feel I will be deprived to survive the basic needs of at least providing shelter for me and my parents. My brother and his [small family] are also occupying the small apartment with my parents as he is still trying to establish his job and family so my family as a whole is relied heavily on my support especially trying to pick up the pieces after the tragic fire and losing everything.
Under the heading of ‘Final Remarks’ the applicant in part and as relevant stated that:
I am appealing my case based on what I have been able to provide in this application. I cannot reiterate more on the limited or possibly deprive life set up for me in Fiji by my actions exposing myself through the actions I have done against senior government officials. [Authority 1] had done their best to keep my identity confidential and as a whistleblower against the government and certain senior officials exposing acts of corruption and malpractice within the government sector, however, for [an Official 1] of the government to expose my name to the senior officials in question seemed a deliberate act in ridding me from the system. Following the recent elections, it is obvious the people of Fiji are awakening on the reality of what may be happening in Fiji and the presence of China and influx of Chinese investors relates to possible corruption practices happening within the government sector to the highest level. 53% had voted for the current government as compared to the 64% they earned in the previous election so the support is dwindling as people are being aware of what may really be happening in Fiji. I know, witnessed, heard and experienced such forms of corruption and speaking out on it, right up to the seniority level in government has put me as a target. Being vocal and active as a whistleblower was what I was actively carrying out as highlighted in this appeal case documents and it has been my downfall, not necessarily by me but being a target and being mistreated in my employment conditions leads me to find sanctuary elsewhere, hence, Australia has been the option I have decided to choose and so far, it has been a relief on my situation and has not only made my life a little better but that of my family who I support back in Fiji.
Country information
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including ‘Economic Overview’ at 2.7 to 2.10 where it provides that:
The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
‘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.
‘Employment and welfare’ at 2.18 to 2.27 where at 2.21 the report states that:
Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
‘Security Situation’ which is outlined at 2.34 of the Report and provides that:
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).
‘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).
‘Opposition parties’ at 3.31 to 3.39 at which at 3.32 it is reported that:
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’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.
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 t 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…[1]
And the Centre for Strategis 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.”[2]
[1] ‘Fiji’s New Politics’, Shailendra Bahadur Singh, Lowy Institute, published 17 January 2023 Fiji, - ‘A New Era in Fijian Politics’, Patricia O’Brien, Centre for Strategis and International Studies, published 7 February 2023 - https:/ type="1">
The Tribunal has also considered the [quoted media] article [source deleted] where it was reported that:
[Details deleted.][3]
[3] [Source deleted.]
Review hearing – 15 May 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language.
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 his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria explained that he understood the criteria.
Given the applicant appeared unrepresented at the hearing the Tribunal provided an outline of the refugee and complementary criteria to the applicant, who acknowledged that he understood the criteria.
As to the applicant’s current circumstances, he explained that he resides in [Town 2] and is working at [Employer 2] where he works as [an occupation 2]. He explained that when he had last arrived in Australia (June 2018) having previously travelled to Australian six other times between 2011 and 2018 he had obtained work [in occupation 3] and then later at a [location] doing general maintenance work before securing his current position with the [employer] after he had completed a [specified] course.
The applicant told the Tribunal that he had arrived in Australia in June 2018 on a tourist visa. He explained the purpose of his trip was to visit his sister as it had been a couple months after he had resigned from his job at [Employer 1]. He told the Tribunal that he had [specified family members] who were Australian citizens and resided in Australia. As to his reasons for his resignation from [Employer 1] he said that he had become aware that there were ‘eyes on him’ and he saw no prospects of advancement or an increase in his remuneration and had decided to resign from his position due to his belief of a lack of recognition of his contributions and that there were no opportunities for promotion for him at [Employer 1].
He said that he was looking for opportunities to remain in Australia as he was trying to get away from Fiji and was sussing out opportunities to stay, and after getting advice about a protection visa, he made his application for the visa (protection) in September 2018, after arriving in Australia three months earlier. In response to the Tribunal the applicant was unable to identify the person who had given him this advice other than saying his first name was ‘[name]’ and that he was originally also from Fiji. He explained that at first, he had been hesitant about making the application as he did not think the visa was for him. However, he explained that after his chat with this gentleman who told him he would stand a chance, he made his application well knowing the implications that could flow if he didn’t get the visa.
He further explained that after believing he had no future at the [Employer 1] he had resigned and although he didn’t fear harm at the time of leaving his employment he had friends, work colleagues and workmates that informed him after he had left his job and was visiting Australia that his name was known at work as the person who had made complaints to the Government about the [Manager 1] of [Employer 1] and the general operations of [Employer 1].
The Tribunal in accordance with the procedure outlined in s 424AA of the Act and after explaining to the applicant that he could have time and an adjournment to consider the matters raised queried the applicant as to his reasons for making application for the visa. The Tribunal explained that on the evidence before it, that the applicant had made application for the visa not out of fears of harm, but rather after having exhausted other possible options that would allow him to remain in Australia. The applicant chose to reply immediately stating that he had come to Australia as he was trying to get away from things in Fiji from the moment he had resigned from [Employer 1], several months prior to his arrival in Australia and some six months prior to his application for the visa.
In response to the Tribunal the applicant explained that he had fears about his position at [Employer 1] from about 2015 but that his fears really took off in 2017 when he had been identified as the source of complaints about the former and current [Manager 1s] of [Employer 1] and the operations of [Employer 1].
When asked as to what he feared and what form of persecution he had been subject to during these periods, he replied that he had managed to get away before any of that came up and that he was pretty sure that if he had stayed, he would have been charged. In response to further questions, he agreed that the Government (Fiji) could have charged him in absentia or pursued him here in Australia for criminal charges. He further agreed that there had not been any attempts made by the Fiji Government and/or [Employer 1] or [Agency 1] officials to interview and/or prosecute him for any matters whilst he was employed or after he had resigned from the [Employer 1]. In response the applicant described himself as being and known as a ‘whistle blower’.
In regard, to the applicant’s complaints about the [Manager 1’s] and the operations of [Employer 1] he agreed with country information as outlined above at paragraph 26 and the material he had provided, that his complaints had not been about the misuse of funds but generally about the operations of [Employer 1] and his lack of opportunities for promotion. He agreed that the two former [Manager 1s] had since left [Employer 1], one having been placed before the Courts in relation to the misuse of funds and the other had retired.
The Tribunal put to the applicant that he may have panicked when he had decided to both leave his employment and later apply for protection in Australia. The applicant agreed with the Tribunal’s suggestion replying to that suggestion; ‘Yes’.
It was further put to the applicant that possibly nothing would have happened to him if he had remained in Fiji. The applicant’s reply was to the effect that the possibility was that something would have happened to him. However, in reply to the Tribunal highlighting that nothing adverse has happened, the applicant’s reply was to the effect that ‘no nothing has happened to me’.
It was then put to the applicant that it was only after arriving in Australia and talking to former workmates that he had formed any fears of victimisation and/or harm arising from his work at [Employer 1] (the employment he had already resigned from) and after getting advice that he had decided to apply for the visa (protection). The applicant agreed with the Tribunal’s proposition but added that when his head of department at [Employer 1] gave him a heads up that he had no future there he had realised he had to leave. The Tribunal noted that this information had not been provided in his earlier statement and/or his submissions to which the applicant explained he had not raised it as he knew it to be hearsay.
As to the applicant’s claims relating to his lack of opportunities at [Employer 1] and being forced to resign because of having no prospects of advancement. The applicant under questioning, explained that the next position above him was the [Manager] of [occupation 1] and the incumbent was a tertiary qualified and experienced [occupation 1]. The applicant conceded he did not have a degree in [occupation 1] or any other tertiary qualifications but claimed that he had [number] years work experience in that department at [Employer 1] and had also completed a two-month [occupation 1 related] course in [Country 1].
In relation to the applicant’s claims of having had ‘personal differences’ with the Fiji government since the 2006 Military coup he explained he had held views that the Government’s relationship with and acceptance of Chinese investment was contrary to the interests of Fiji. However, he conceded he had not publicly expressed his views through social media or any other means nor had he openly discussed his views with other people in Fiji. He further conceded that he did not have an anti-government profile as he had never attended any anti-government demonstrations, meetings or activities.
The applicant also conceded as being correct that his views were somewhat irrelevant now given the recent change of Government in Fiji. Also, that given this change of Government there was unlikely to be any risk to him of any retribution from the Government and/or [Employer 1] of Fiji for either his personally held political views and/or his complaints against the former [Manager 1s] and the management of [Employer 1].
It was then put to the applicant that the only danger or risk he now faced if he was to return to Fiji was the limited employment opportunities and the subsequent loss of income and the ability to support himself and his family in the current manner from his [occupation 2] employment. The applicant replied that, that was one issue he faced and that the other issue was of being chased for what he had done in so far as making complaints about [Employer 1] management.
Under questioning he further explained that if he was still employed at [Employer 1] it would have happened, but luckily he had left before anything did happen to him.
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.
Country of reference
According to the protection visa application, the applicant claims to be citizen of Fiji and provided a copy of his Fiji passport and [Australian] Birth Certificate, based on this material the Tribunal finds that the applicant is who he says he is, and a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
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.[4] 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.[5] This is consistent with the established proposition that it is for the applicant to make his or her own case.[6]
[4] Section 5AAA of the Act.
[5] Ibid (with effect from 14 April 2015).
[6] 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.[7] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[8]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.
[7] Fox v Percy (2003) 214 CLR 118
[8] 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.[9] A similar approach is taken in the Department’s Refugee Law Guidelines[10] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[11] which provides useful guidance for this Tribunal.
[9] SZLVZ v MIAC [2008] FCA 1816 at [25].
[10] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[11] UNHCR, re-issued February 2019 at [203]–[204].
Military coup of 2006 and downturn in the applicant’s life
The applicant claims the change of government in 2006 resulted in his tertiary scholarship being cancelled and this caused him a two year delay for him to find new opportunities. That new opportunity being his [duration] employment with the [Employer 1]. He further claims that he has ‘personal differences’ with the Military Government (now former government) including his opposition to the Government’s ‘Looking North’ policy and that he believes individuals who speak out against the government are commonly persecuted.
The Tribunal notes that notwithstanding the loss of the applicant’s scholarship he did obtain employment with [Employer 1] where he remained in full time employment for over [number] years until he voluntarily resigned and then travelled to Australia where he has since been employed in the [occupation 2 industry].
Although the Tribunal is satisfied that the applicant holds views against the former Fijian government’s relationship with China there is no evidence before the Tribunal that the applicant ever expressed his personal political views publicly and/or participated in any form with any anti-government organisations and movements publicly. As such the Tribunal is not satisfied that the applicant was and/or is of interest to the former and/or present Fijian government and that he holds any negative profile with the past and/or present Fijian Government as a result of his personal views.
The Tribunal after considering the evidence before it and the relevant country information is not satisfied that the applicant would face a real chance of serious harm as a result of his political views if he was to return to Fiji in the reasonably foreseeable future. The Tribunal finds that the applicant’s fears of harm arising from his personal political views are not well-founded.
Additionally, notwithstanding the applicant’s tertiary education scholarship having been cancelled after the 2006 elections in Fiji there was no evidence placed before the Tribunal as to the applicant having been discriminated and/or persecuted because of his lack of tertiary qualifications and he was in fact able to find full time employment with [Employer 1] where he worked for over [number] years prior to his voluntary resignation.
Also given there was no evidence before the Tribunal of any attempts by the applicant to obtain the necessary tertiary qualifications for further advancement at the [Employer 1] nor any evidence of him having been denied employment and or advancement in circumstances where he had the relevant and necessary experience and qualifications. The Tribunal is not satisfied that the applicant would face a real chance of serious harm in the reasonably foreseeable future as a result of his tertiary scholarship having been cancelled and therefore that the applicant’s fears of harm arising from his lack of relevant educational qualifications are not well-founded as they would equally apply to the Fijian population at large.
Employment – forced to resign
As to the applicant’s employment with [Employer 1] and his claims that he was forced to resign his position and his later claims of fears (accepted as clarification of his earlier claims and not a new claim) of reprisals because of his confidential complaints against the management and operations of [Employer 1]. The Tribunal is satisfied that the applicant had formed a view that he was not able to further advance within [Employer 1] and being frustrated as to the lack of opportunities for advancement and any increased remuneration he chose to resign. The Tribunal further accepts that in the applicant’s own subjective view he did so, as he was forced to do so, due to this lack of an opportunity for further advancement, notwithstanding that in any objective assessment of his situation, he was not qualified for further advancement due to his lack of relevant tertiary qualifications.
In that regard, the Tribunal notes that it was the applicant’s own evidence that the next higher position that would be available to him was that of the [Manager] of the [named section]. In evidence he conceded, firstly that this position was not vacant, and there was no indication that it would become vacant in the foreseeable future. Secondly, that he did not have the relevant tertiary qualifications for such role. Notwithstanding the evidence before the Tribunal that the applicant had made a series of complaints about his lack of opportunities and the general operations of [Employer 1] to the relevant Minister in the Fiji Government there was no evidence that the applicant had suffered any harm, or was going to suffer harm, or any form of a loss of employment opportunities with [Employer 1] and/or the Government generally as a result of his complaints. In fact, it was the applicant’s evidence that he resigned from [Employer 1] because of his view of not having any opportunities for advancement and being told so by his immediate superior. It was the applicant’s further evidence that only after he had arrived in Australia, to firstly visit his sister, and then to pursue opportunities to remain in Australia that he was purportedly told by former workmates that he had been spoken of and/or identified as the ‘whistle blower’ at [Employer 1].
The applicant was unable to explain what harm he feared if he retuned to Fiji but for suggesting he may be targeted in some way as a result of his complaints at [Employer 1]. Given there was no evidence placed before the Tribunal of any reprisals and/or threats of reprisals made against the applicant during his employment, after his resignation and/or his arrival in Australia together with the recent change of Government in Fiji as outlined above in the country information. The Tribunal is therefore not satisfied that the applicant faces a real chance of serious harm resulting from his complaints at [Employer 1] if he was to return to Fiji. The tribunal finds that the applicant’s fears in this regard are not well-founded.
In that regard, the Tribunal further notes the applicant’s evidence under questioning was to the effect that the risks he faced upon returning to Fiji were the limited employment options due to the economy, and the loss of income to support himself and his family in the manner he currently enjoyed through his work in [occupation 2]. Additionally, he feared that he may in some way be chased because of his complaints at [Employer 1]. However, again he was unable to explain how he would be chased and what would be the harm he would face.

The Tribunal noting that the applicant after resigning from [Employer 1] received support from his family in Fiji, and then initially in Australia, and he has since in Australia been able to obtain employment is satisfied that the applicant would not be discriminated against in Fiji as to employment within the Government and private sector. Therefore, the Tribunmal finds that the applicant would be able to pursue appropriate employment opportunities and most likely secure employment in Fiji if he returned to Fiji.
Given the applicant’s evidence that he had voluntarily resigned from his position with [Employer 1] due to a lack of opportunities for further advancement. That he was not actually relevantly qualified for any such advancement. That he came to Australia as a tourist to see his sister and then sought opportunities to remain in Australia culminating in his application for a protection visa after having been in Australia for around three months. The Tribunal finds that the applicant’s motivation for remaining in Australia is for personal economic reasons and not for protection.
As to the applicant’s delay in making his application for the visa and noting that he did so on the advice of a gentleman who suggested he may have a chance of obtaining such a visa. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa.
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 2435

17 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies