1916631 (Refugee)

1916631 (Refugee) [2024] AATA 3961 (27 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1916631
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Phillippa Wearne
DATE:27 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 27 August 2024 at 12:36pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – religion – Christian (Catholic) – claimed fear of harm was from non-state agents – drug traffickers and violent gangs in Fiji – grandchild being poisoned – youths’ bad behaviour and being under the influence of drug and alcohol affected everyone in the area – applicant had returned to Fiji 3 times – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is a [age]-year-old national of Fiji. He most recently arrived in Australia on [date] September 2014 as the holder of a Tourist (Subclass FA-600) visa. He lodged an application for a protection visa on 5 July 2016. The second named applicant is his wife (the ‘partner applicant’). She is a [age]-year-old national of Fiji. She also arrived in Australia on [date] September 2014 as the holder of a Tourist (Subclass FA-600) visa. The applicants lodged applications for protection on 5 July 2016.
On 5 July 2016 a delegate for the Minister of Home Affairs refused to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to his protection visa application, the applicant was born in [a village], [an island]. The partner applicant was born in [a village].
The applicants speak, write and read Fijian and English. They give their religion as Christian (Catholic). They completed primary education. He is a farmer.
The applicants resided [at Address 1] until 2006 when they moved to [Address 2].
The applicants have 9 adult children: 6 daughters and 3 sons.
The applicant left Fiji to visit his son in Australia and because he and the partner applicant faced a life-threatening situation where they were.
The applicants currently reside with their son, [Mr A], and his family in southern NSW.
The applicant’s written claims for protection are summarised below. The partner applicant did not make separate claims for protection:
·     The applicant started farming in 1974 and in within 15 years was a successful farmer. His extended family became jealous and made threats and accusations.
·     In 1989, he experienced 2 incidents when confronted with drunken men on the roads. In the first, stones were thrown at his vehicle, but he was not hurt. In the second, he and his family were threatened with knives. They drove away and were not hurt. Although reported to the police, the culprits weren’t found. The applicant faced verbal threats and one night the house was stoned and windows were broken.
·     In 2005[1] their drinking water was poisoned. The applicant had noticed a group of men near their drinking water tank. So after they left, he checked the nearby grass. Noticing it was dead, he and his son, [Mr B],[2] quickly emptied the tank and scrubbed it thoroughly.
·     In 2006, they moved a few kilometres away to [Address 2].[3] This house was also stoned. They faced discrimination, verbal abuse and threats.
·     Their drinking water tank was damaged in 2010. Their house was also damaged.
·     In 2014 a group of people uprooted his crops and damaged his farm.
·     In 2016, their house was stoned and ransacked causing damage. His daughter who is living there ran from the house.
·     After the 2016 cyclone in Fiji,[4] their drinking water tank was cut. These experiences have caused him depression, emotional trauma, and he is afraid this psychological burden could eventually kill him.
·     The authorities have never considered and helped them in the past and they never will.
·     Relocation is impossible in Fiji. People remain in their village/province.
Documentation submitted by the applicant
[1] The applicant’s written statement states ‘2000’s’. However, he has consistently otherwise claimed this event took place in 2005.
[2] [Mr B].
[3] Identified as [Address 2] in other evidence from the applicant.
[4] Cyclone Winston, 7 February 2016 – 3 March 2016 – Wikipedia – accessed 15 August 2024.
The applicant provided the following copies of documents:

An undated letter of support from the applicants’ son, [Mr B].[5] He states that their family home was [Address 1]. The applicant started to do well with farming and bought a truck. Drunk men threw stones at it. Then someone put poison in their water tank. Drunk men have caused a lot of problems. The applicant bought [Address 2] in 2006 hoping that they could all live peacefully there, but the same thing happened. Also, sometimes their crops were stolen. He is glad that his parents have the opportunity to live peacefully in Australia. [Address 2] has been transferred into [Mr B]’s name.
[5] ‘[Mr B]’.
A letter of support from another son, [Mr A], dated 26 October 2016. He was adopted out from the family and moved to [Country 1]. He assisted his parents financially when he was working there. He now lives in NSW. He sponsored the applicants to visit him in Australia. Because of their age, he doesn’t want them to return to Fiji and face the same fear that they went through there.
An undated letter of support from [name], the third son of the applicants. He states that the applicants’ water tank was poisoned, crops had been cut or stolen, drunkards have thrown stones at the house, and broken into and stolen from the house. He lives in [City 1] and has 4 children. He is employed as a [occupation].
A letter of support from [name], a priest at [a parish] dated 29 July 2016. He states that the applicants have told him that they grew kava, and ‘whilst the money earned sustained them financially, they sought a better way of life by coming to Australia in 2014’. The applicants’ relatives have taken over the house and farm as if it was their own property and warned them not to return. Crops have been stolen and uprooted.
A letter of support dated 29 October 2016 from [name], a coordinator at the [Organisation 1], NSW. From what she understands the applicants’ home was taken over by ‘opportunistic relatives and their personal safety has been threatened should they be forced to return to Fiji’. Rocks were thrown at their property and their tank water was poisoned. Young people take drugs and use alcohol leading to violent incidents.
A letter of support from the applicants’ daughter, [name], dated 8 June 2016.
There are several articles held on the Department file which the applicant confirmed during the hearing that he had submitted to the Department. Rights and Dreams[6] is an article about lack of guidance for children in Fiji, addiction and jealousy. Another is about drug cultivation by gangs in Fiji and a crime prevention committee being threatened.[7] A Crime and Safety Report[8] notes that most crime in Fiji occurs in urban areas and most are property crimes, usually involving intoxicated perpetrators or victims. Poorer rural settlements also have a high rate of burglaries. There is also an article called Developing Insecurity: Sorcery, Witchcraft and Melanesian Economic Development, noting that successful business people may be fearful of the jealous attacks of sorcerers.[9]
Departmental interview
[6] The Fiji Time, 31 August 2015.
[7] The Fiji Times, 2 March 2015.
[8] Fiji 2015 Crime and Safety Report.
[9] Australian National University, SSGM Discussion paper 2015/7, Richard Eves and Miranda Forsyth

The applicant attended an interview with a Departmental officer on 1 November 2016. A recording of the interview is held on the Department file. I have listened to it.
At the interview the applicant provided the following information:[10]
[10] Decision record pp 3-4.

Three of the applicant’s 9 children live in [City 1], 4 in [City 2], 1 in [Country 1] and 1 in Australia. All children except the youngest son are married.
The family’s drinking water was poisoned by a group of youths in 2005, while they were living at [Address 1] in Fiji. Because of these problems with the youths, he sold [Address 1] and bought [Address 2], where the family relocated in mid-2006.
He obtained his passport in 2007 but did not travel until 2009 because his son, living in Australia, hadn’t been successful in sponsoring him and his wife on tourist visitor visas to Australia. The delegate asked why their son had been trying to get the applicants to Australia. The applicant replied that way he would be able to help his family. When asked what type of help the applicant would be able to provide, he replied that he wanted to help get his children away from the ‘current situation’ in Fiji. He said the current situation was the life of depression and persecution they had been experiencing, including blatant attempts made on their lives. He stated that he had experienced a lot of fear and sleepless nights as rocks were being thrown at the house. The situation had been deteriorating and he thought of coming to Australia and getting his children over to Australia one by one. When asked for the applicant’s purpose in coming to Australia, the applicant said he wanted to see his son get away from the life of persecution and trouble he was facing at home.
The applicant stated that he could not return to Fiji because he and his wife were older now and would have to live with one of their children, who were not established enough. Without qualifications it would be difficult for them to obtain employment in Fiji. He said that another reason that he could not return to Fiji was because he would experience problems. He stated that he and his wife would definitely be killed by the out-of-control youths living in the same settlement area.
When asked about when he first felt the need to seek protection, the applicant replied that he decided to come to Australia in 2009, because he realised that there had been some changes in his health. He felt like he was getting weaker and lethargic. Because he was getting older, he was concerned that he would be less capable of handling the troubles that he had been facing in Fiji. When asked how he found out about applying for protection in Australia, he said ever since they had arrived, they had been seeking information about what visa could provide them with protection. He was glad that his wife was willing to come to Australia.
The applicant stated that sometimes it was possible for ordinary citizens to get protection from the police in Fiji, but this was not his situation. He had tried to deal with problems in the community, in a traditional, common sense way, by discussing with the children’s parents that their children could have killed someone. However, he also gave evidence that he had sought police assistance on occasions and adequate assistance had been provided.

The delegate suggested that rather than having a genuine fear of returning to Fiji it could appear that the applicant applied for a protection visa because he wished to remain here and bring his children to join them. The applicant replied that they were genuine in their claims, and they sought protection for their son too. The delegate discussed several other concerns about the applicant’s claims, which are discussed below (see Analysis, reasons and findings).
The delegate noted that after the interview the applicant submitted the following:
·A police report dated 7 November 2016 stating that the applicant’s daughter, [Ms D], reported that someone had thrown stones at her residence on [Address 2].
·A letter of support from [Ms D] dated 4 November 2016 which stated that their water tank was damaged with an axe or a knife, and 2 photos of a damaged water tank.
·An email from [name], a nurse from [a] Health Center, stating that she had treated [Ms D] and her children on the evening of 14 October 2016 for acute gastroenteritis.
Delegate’s decision
The delegate found the applicant’s claims for protection not credible, and that the applicant had exaggerated claims of past harm, including that it continued on a weekly or fortnightly basis. The delegate was also not satisfied that the applicant genuinely feared returning to Fiji for the reasons he claimed. The delegate additionally found that the applicant’s claimed fear of harm was from non-state agents and was not related to reasons of race, religion, nationality, political opinion or membership of a particular social group.[11] The delegate was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Fiji there was a real risk that the applicant would suffer significant harm.
The review application
[11] As provided in s 5J(1)(a) of the Act.
On 25 June 2019 the applicants applied to the Tribunal for a review of the delegate’s decision.
The applicant submitted the following documents to the Tribunal:

A letter of support from [Mr A] dated 29 April 2021. The applicants are staying with him in NSW and help look after his children.
An undated letter from [name], Divisional Traffic Officer, [City 1], Fiji (not on official letterhead). It describes the applicant as a ‘businessman’. It notes that the applicant was also a member of the Police Crime Prevention Committee, a partnership between Fiji Police Force and the community to curb criminal activities in the area. The applicant always assisted the police whenever the need arose.
A letter of support from [Mr B], the youngest son of the applicant dated 15 July 2019. He states that he resides at [Address 2], land given to him by the applicant. The applicant was once a big businessman who farmed taro and kava. The applicant is hard-working, and business-minded and acted as a middleman buying crops to sell from other farmers on Taveuni. As the applicant became more successful, people’s attitude changed. The roof of their house was stoned, and crops were stolen. [Mr B] stated that he was in Fiji looking after their land. He sees no reason why his parents should not be granted their permanent residence in Australia. He sets out the incidents occurring as 2005, chemical added to water tank; 2006, water tank damaged by cutting; 2014 and 2019, theft of kava and taro; and stoning of house.
A copy of a letter on Fiji Police Force [letterhead] dated 17 July 2019 signed by [name]. It states that the applicant has lived in [the area] for about 40 years. The writer then lists word-for-word the same events set out in the letter of support from [Mr B] dated 15 July 2019 (above).
A letter of support from a daughter of the applicants, [Ms C], dated 17 June 2024. She is a single mother of 4 children. She moved back to [Address 2] in 2021 after separating from her husband. While back in the [settlement] she has seen robbery, property damage, crops stolen, and a drunk person smashed her car. Her sister, [Ms D], visited her in 2023 and was almost assaulted by someone who broke into the house. There has been an increase in crime in the area.
A letter from [the local] Police Station dated [June] 2024 stating that [Ms C] had reported that her vehicle had been damaged.
Colour photos of a pickup truck, with a glass window broken and another window showing a round broken hole. No registration details of the vehicle are shown.
A letter of support from [a priest] dated 17 July 2019. The letter states that the applicant has told him about his situation in Fiji. The applicant supported his family in growing kava. After the applicants arrived in Australia in 2014, relatives took over the family home in Fiji and the farm, ‘which has since fallen into disrepair through negligence, laziness and the common theft of young radicals’ who steal crops to buy and sell drugs. The drug problem is epidemic out of the tourist areas. There have also been occasions when locals have thrown stones on to the roof of the home. The relatives who moved in threatened the applicant that it’s not safe for them to come back as their welfare would be in jeopardy. Local police are unwilling to assist or are apathetic to the applicant’s plight. It is volatile and dangerous for the applicant and his family to return to Fiji, and they have lost an ability to make an income.

The applicant also wrote a letter to the Tribunal dated 6 June 2024, stating that he has been ‘in and out of Australia a few times’ and he finds that Australia is ‘more safe and peaceful than Fiji’. He had encountered a lot of crime in their settlement and the crime rate there has increased. One of his daughters[12] moved back to [Address 2] on Taveuni island 3 years ago and she faced the same difficulties which the applicant experienced. Crops have been stolen, property including their car, was damaged. Their daughter is now trying to move away too. Most of the youths in their settlement have chosen to plant marijuana instead of planting crops. This has led to more crime in the settlement. It has been 10 years since he and his wife left Fiji and they now consider Australia their home. It is safer than living in Fiji.
[12] Identified in the hearing as [Ms C].
The hearing
The applicant appeared before the Tribunal on 8 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian language. The partner applicant, their son, [Mr A] and their granddaughter (child) also attended the hearing as support people. The applicant confirmed that he did not request them to give evidence.
The applicants confirmed that the partner applicant did not make separate claims for protection and relied on the applicant’s claims as a member of the same family unit.
The applicant told me that he and his family had driven from [Town 1] NSW, a drive of about [number] hours. I thanked him for attending the hearing in person.
The applicant submitted several documents at the beginning of the hearing which had not previously been submitted:
·     A letter of support from the applicant’s son, [Mr A], dated 31 July 2024. He stated members of the Catholic faith received threats from the dominant faith group in Fiji, which is Methodism. This has escalated tension and threats that the applicants have been facing in Fiji. The applicant travelled between Australia and Fiji 3 times because he was trying to ascertain if the behaviours of the perpetrators have changed. He was also checking on crops growing on the farm. The Police Department is open only from 8:00am to 4:00pm so most of the reported crimes are not solved. The water tank was poisoned in 2005 and damaged in 2010. The applicants received verbal threats and the house has been stoned. The applicants being Catholic also contributes to the tension. The applicant has been a successful farmer since 1974 and received threats because of competition. He delayed applying for protection because they are connected to their land, and it was a difficult decision to leave it. Although there is freedom of movement throughout Fiji, to relocate would require them to be financially stable as well as having the presence of close kinship in the place to be relocated to. The applicants don’t have the presence of close kinship in other areas of Fiji.
·     A further letter of support dated 31 July 2024 from [Mr A], writing as [occupation]. The applicants assist with care for his and his wife’s child, who has a developmental disability, as well as for their other 2 children. He does not want his children to be separated from his parents.
·     An undated letter of support from [name], [Organisation 1], [Town 1], NSW stating that there is growing unrest from drug traffickers and violent gangs in Fiji is the applicant’s biggest fear. The applicant is an asset to the [Town 1] community.

Where relevant, the applicant’s other oral evidence at the hearing is referred to in the analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection.
Relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
Fiji Police Force
The DFAT Country Information Report Fiji (the DFAT Report) states the following:[13]
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined…
Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.
Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.
Crime in Fiji
[13] DFAT Country Information Report Fiji, 2022 paras 5.6-5.10.
The DFAT Report makes the following comments about crime in Fiji:[14]
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… Accusations of police violence are commonly reported and regularly investigated.
[14] DFAT Report para 2.34.
However, other reports do indicate that drug and alcohol abuse can be a problem within the youth community in Fiji and have been for many years. Drug abuse cases in schools have been rising, with 3,500 cases reported in 2023; students often start with smoking and alcohol before moving to drugs.[15] A Fijian study found that nearly half the children under 14 have used drugs or alcohol.[16] The use of cannabis and glue sniffing is common, and harder drugs like cocaine and methamphetamines are increasingly present.[17] Alcohol consumption is widespread, especially in urban areas, with concerns about binge drinking among youth.[18]
[15] Drug use in schools increasing in Fiji, Xinhua,16 May 2024 – accessed 11 August 2024.
[16] Fiji study finds high drugs and alcohol use among young teenagers, RNZ 25 July 2017 – accessed 11 August 2024.
[17] Reducing drug harm in Fiji Te Puna Whakati Pamamae Kai Whakapiri New Zealand Drug Foundation Jacob Quin, 1 May 2012 – accessed 11 August 2024; ‘I’ve seen terrible, terrible violence’: cocaine and meth fuel crime and chaos in Fiji, The Guardian, 25 June 2019 – accessed 11 August 2024.
[18] Alcohol, Ministry of Health and Medical Services, Fiji – accessed 11 August 2024.
There is a specific report of youths being drunk and disorderly on Taveuni and attempts to combat this problem by encouraging their involvement in sport:[19]
Over the past few months, villagers in Taveuni have seen a surge in criminal activity and numerous complaints have been lodged at the local police station as well as the District Officer’s office. ‘Drunk and disorderly’ was also a common issue in the Island, and villagers were weary and concerned about this ongoing issue knowing how it can be an influencing factor to the upcoming youths. In the last two months, Taveuni Community Policing Coordinator Corporal Mikaele Ropate Ramanu wrote a concept paper outlining an awareness program initiative as a response to the rising issues they’re currently facing. In his overview of the initiative, Corporal Ramanu introduced the ‘Duavata Youth Engagement Programme’ and part of the programme, he planned an in-Island 15s rugby competition. For the past seven years, 15s rugby competition hasn’t been played on the Island and the introduction of the Duavata programme has revitalized the game. After consultation with the DO office and other Government stakeholders, the Duavata engagement programme was given the green light and was officially launched on 12 September. Every week teams from all villages in Taveuni come together to play in a weekly club competition, and for the past 6 weeks of competition, people around the island have notice[d] a drop in crime rate.
Environmental problems for farmers on Taveuni
[19] Using Rugby as a tool to eradicate Crime in Taveuni Newsroom, Fiji Rugby (undated but appears to be a 2003 or 2024 news article) – accessed 11 August 2024.
Taveuni, the island where the applicants resided in Fiji, is also referred to as the ‘garden island’ because of its high rainfalls and fertile soil. These attributes brought an influx of farming communities on to the island. Following this influx, ‘overzealous’ clearance of forested areas to plant dalo (taro root) and yaqona (kava root) has led to a reduction in the ecosystem provided by the island’s natural assets. The most noticeable indicator of this is periodic water shortages due to the loss of forest cover in watershed areas. This threatens local businesses and residents, as well as the growth of the small tourism sector. Climate change has added an additional stressor to unsustainable land use practices.[20]
[20] Ecosystem and Socio-Economic Resilience Analysis and Mapping Taveuni Island Fiji, 3 August 2020 – Secretariat of the Pacific Regional Environmental Programme, Forward V – accessed 11 August 2024, Forward V.
Intensive cash-crop dalo and yaqona farming has led to losses in soil fertility and productivity (80% decline per hectare). Extreme climate events including Tropical Cyclone Winston, record rainfall and record maximum temperatures in 2016 caused significant stress to ecosystems. Reserve areas are under threat of degradation. Climate change is expected to increase air and sea temperatures, sea levels and ocean acidification – all forces that exacerbate the effects of human-caused challenges to natural resources.[21]
Religion in Fiji
[21] Ecosystem and Socio-Economic Resilience Analysis and Mapping Taveuni Island Fiji, 3 August 2020 – Secretariat of the Pacific Regional Environmental Programme, page 1 – accessed 11 August 2024.
In regard to religion, the DFAT Report states:
The 2013 Constitution establishes Fiji as a secular state, guarantees freedom of religion and specifically protects against religious discrimination. In practice, freedom of religion is well established in Fiji, and the Government and the people generally respect that freedom. [22]
About 65 per cent of Fijians are Christians, about 25 per cent are Hindu and about 6 to 7 per cent are Muslim. The Methodist Church in Fiji and Rotuma (MCFR) is the largest denomination with over 212,000 members, according to the World Council of Churches. Other Christian denominations include Catholicism, Assemblies of God and Seventh Day Adventist. Religion tends to be divided along ethnic lines; most iTaukei are Methodist and most Indo-Fijians are Hindu or Muslim.[23]
[22] DFAT Report, para 3.11.
[23] DFAT Report para 3.12.
Roman Catholics make up 9.1% of the population of Fiji. Other Christian groups together comprise 10.4%. Religious affiliation runs largely along ethnic lines. According to the 2007 census, most indigenous Fijians, who constitute 57% of the population, are Christian.[24]
Analysis, reasons and findings
[24] US State Department 2022 Report on International Religious Freedom: Fiji - accessed 13 August 2024.
For the following reasons, I have concluded that the decision under review should be affirmed.
The applicant told me that a friend had helped him complete the protection visa application. She is like a daughter to him and his wife. He told her his claims and she wrote them down. I accept that the applicant had this assistance in completing the protection visa application.
The applicant confirmed the names, ages and whereabouts of his 9 children, who are aged between [age] and [age] years. Two of his sons live in Australia ([Mr A] and [Mr B]). The applicants live with [Mr A]’s family in [NSW]. [Mr B] lives in [another state]; his seasonal worker visa has just been extended for several more years. Apart from these 2 sons now in Australia, one daughter, [Ms C], has visited them in Australia from Fiji. His other children live in 4 different places in [Fiji ]. I accept this evidence about the applicant’s family. I also accept evidence from family statements that the family is supportive of the applicants and [Mr A] has financially supported his parents.
The applicant said he grew taro and kava roots and that he was a good farmer, and he also got involved in the business of marketing and selling produce from other [farms] for some time. I accept this evidence.
The applicants have been working since coming to Australia. They have both been [occupation]. The applicant has also been working for the past 3 years at a [workplace]. The partner applicant continues to [work]. I accept this evidence about the applicants’ employment in Australia.
The applicant confirmed that he sold [Address 1] [in] 2006 and moved to [Address 2], which is closer to the main road. [Address 2] consists of a residence and farmland. He gave [Address 2] to his son, [Mr B]. However, it is now held under the name of his daughter, [Ms C]. [Ms C] and her children and another daughter, [Ms D], and her children currently live there. The applicant doesn’t own any other land in Fiji. [Mr B] and later [Ms C] and [Ms D] continued to farm at [Address 2] since the applicants left Fiji. They grow food to eat. They also grow taro and kava to sell. I accept this evidence, consistently given, about [Address 1] and [Address 2] and its occupants.
Evidence about other claims
The applicant said that the water tank at [Address 1] had been poisoned in 2005. He knew it was poisoned because grass around the tank died. Also, they could taste the poison in the water. He added that one of his grandchildren went to hospital as a result. I noted that this was a new claim that hadn’t been raised before the delegate made their decision. Under the Act,[25] I was to draw an inference unfavourable to the credibility of the claim if I was satisfied that the applicant does not have a reasonable explanation as to why it had not been made before the delegate’s decision was made. When asked why he had not previously made the claim of his grandchild being poisoned in 2005, the applicant said that he kept his claims short in the protection visa application; now he could explain his claims in more detail. I also noted that he had not raised this claim in the Departmental interview when discussing the incident. The applicant agreed. He then said that the water had been poisoned.
[25] Section 423A of the Act.
In continuing discussing the poisoning of the water tank in 2005, the applicant confirmed to me that he had seen a group of men near the water tank. He said that he did not know whether or not other water tanks in the settlement had also been poisoned. The applicant said that he called the police and they had come to investigate.
I noted that according to one of his supporting statements, he had joined the Police Crime Prevention Committee. The applicant agreed, saying this had been a long time ago. He joined this Committee in the 1990s, perhaps 1994. He hadn’t been a member of it after the 1990s. The community nominated new members to join the Committee and he did not want to do it anymore.
I asked the applicant what other harm he had experienced apart from the poisoned water tank in 2005. He said that it was the young kids. They got drunk and then threw sticks and stones at the house. The biggest problem was the kids’ alcohol and drug use. There was a lot of marijuana used. The biggest problem was the boys visiting their area from other areas in Fiji. They come to work but they cause trouble for everyone in the area.
I noted that he had claimed that there had been stones thrown at his property and the water tank had been poisoned and asked what else had been damaged. The applicant said that the water was poisoned at [Address 1] in 2005 and at [Address 2] in 2010. The water tank was also cut in 2010. He confirmed that Tropical Cyclone Winston in 2016 had also caused damage to property on the island including damaging the water tank at [Address 2].
I asked the applicant to tell me about the most serious incident that he had experienced in Fiji. Without hesitating, he replied that it was when some drunk boys had come around to their residence. They were swearing. They threw big stones at the house. I asked him when this incident had occurred. He said that the house had been recently built; it had happened at [Address 2]. He said he was pretty sure that it had happened in 2006, because he remembers young grandchildren were in the home and he was concerned about their safety. He had contacted the police. They came around. One perpetrator was jailed.
I raised the claims from the supporting documents submitted about harm done by members of his extended family or relatives, including those who had apparently moved in to [Address 2] after the applicants left for Australia. The applicant said he did not think that there had been any issue with their extended relatives. The applicant said that [Mr B], his son, moved into [Address 2] when the applicants [left] . Later, [Ms D] had moved there. [Ms C] was also there now too.
The applicant had made the written claim of facing depression. I asked him if he had experienced depression. He replied that the biggest problem was the younger generation in Fiji. They use drugs and drink liquor. Then they do whatever they want to do whenever they want to do it.
I noted the (undated but apparently recent) country information article indicating that there had been a surge of drunk and disorderly youth on Taveuni and how this worried all the villagers. There was a problem with alcohol and drugs. A rugby initiative had started with the youth and the crime rate falling and there was hope that this initiative could be extended and maintained. The applicant said that he had not heard of this. Maybe things had improved.
I referred to another article which described unsustainable farming practices over the past decades and climate changes that had led to an 80% per hectare reduction in crop yield on Taveuni.[26] I asked if the applicants had come to Australia because farming was no longer profitable for the farmers on Taveuni. The applicant agreed that there was not as much yield as there had been in the past, but they were more frightened about the stoning of property by the young people who were out of control.
[26] See country information, above; Ecosystem and Socio-Economic Resilience Analysis and Mapping Taveuni Island Fiji, 3 August 2020 – Secretariat of the Pacific Regional Environmental Programme, page 1 – accessed 11 August 2024.
I noted that the youths’ bad behaviour and being under the influence of drug and alcohol affected everyone in the area the youth were not just the applicants. The applicant agreed. The youth being drunk and disorderly had become a problem in Taveuni for everyone.
I asked if there was ever a time that the police refused to help them. He did not provide an incident. He said that they would make a statement at the police station, but the reports were not always followed up on and sometimes the police did not attend to investigate, but on these occasions, it was probably because of the distance they had to travel.
I asked the applicant about his evidence during the interview about a man he’d known, [Mr E], who’d broken into the family home. The applicant had said that [Mr E] was angry and under the influence of something, presumably home brew or marijuana. He’d punched the applicant. The applicant could not recall when this had happened. The applicant described himself as previously being a good farmer. At the time he had been successful marketing and selling produce from Taveuni. Perhaps [Mr E] was jealous of his success at this time.

I referred to the delegate’s concerns outlined in the decision record. One of them was the significant delay in applying for protection, despite the opportunity to do so from February 2009. Further, the applicants had remained in Australia illegally from September 2015 until July 2016, before applying for protection. This delay suggested that the applicants were not in fear of persecution in Fiji. Rather, they applied for protection in Australia for the purpose of legitimising their migration status because they wanted to remain here, and they wanted to bring the rest of the family here. During the hearing, the applicant said that the delay was because of his lack of education. He didn’t know how to go about appllying and it cost money. They delayed applying hoping that sooner or later they would be able to lodge a proper application.
Another concern I noted from the delegate’s decision was that the applicant had returned to Fiji 3 times since 2009. The applicant agreed that he had gone back to Fiji a few times. He said that he was persuading his wife to come so that they could live comfortably and without fear. Australia was a much better place to raise a family. They wanted to live in a country area here, like how it felt to be in Fiji.
Another of the delegate’s concerns from the decision record that I raised with the applicant, was his claim during the interview[27] that his daughter, [Ms D], had been admitted to hospital a couple of days previously because someone had poisoned the water tank at [Address 2] and that she was waiting on a toxicology report from a pathologist. However, the delegate noted that the supporting police report dated 7 November 2016 mentioned only that [Ms D] had reported stones thrown at their house, with no reference made to poisoned water. Further, in [Ms D]’s letter of support dated 4 November 2016, mention was only made of an axe or knife-damaged water tank (consistent with the photo evidence also provided), with no mention made of water poisoning. Further the delegate observed that the email from the nurse[28] indicated that she had treated [Ms D] and her children for severe gastroenteritis on the evening of 14 October 2016, which the delegate found did not support the applicant’s claim that the water poisoning occurred a couple of days before the interview.[29] Considering the inconsistent evidence provided and in the absence of further supporting information, the delegate did not find the applicant’s claim of poisoning of the [Address 2] water tank to be credible. When asked to comment and whether he had obtained the toxicology report regarding his claim of poisoning, the applicant said that there was no toxicology report, and he did not have proof of poison in the water.
[27] Conducted 1 November 2016.
[28] From [a] Health Center.
[29] The Departmental interview was held on 1 November 2016.
Another concern I raised with the applicant was that he had made a claim of living on his farm ‘with terror’. However, from his evidence and supporting statements it was apparent that his adult children and now his grandchildren had lived and farmed [Address 2] since 2009. The applicant agreed. He added that there is still the problem with youth on drugs and drunkenness and damaging property.
I asked the applicant about a new claim raised in the letter of support from [Mr A] dated 31 July 2024, which the applicant had submitted in the beginning of the hearing. That was, that the applicants, as Catholics, had received threats from the Methodists and this ‘escalated the tension and threats that they had been facing in Fiji’ and the ‘perpetrators’ of harm were a different faith to the applicants. [Mr A] had also claimed that the Catholics were discriminated against by the Methodists. I told the applicant that the country information available did not support these claims. The applicant agreed. He said that he did not see friction between the Catholics and the Methodists. He thought the important thing for both was to teach the young people from the pulpit.
I asked the applicant about relocating to another area in Fiji, away from Taveuni. His adult children live in different areas of [Fiji] . The applicant said that it would be difficult for he and his wife to start over again at their age. Their children have their own problems, and he and his wife did not want to be a burden to their children. He said that they enjoy their life in Australia and the community that they have here. Everything and everyone is good here. Having to go back to Fiji would be going back to the drug and alcohol problems of the youth in Fiji. That would be difficult at their age compared to what they now have in Australia.
I asked the applicant why he feared to return to Fiji. He said it was because of the drinking and drug taking by the local youths. He said that the young generation is out of control. They do whatever they want whenever they want. This is what he fears the most. In Australia, in [Town 1] they feel protected. They can come back to their home, and nothing has been stolen.
Findings: claims not pursued by the applicant
The applicant’s oral evidence given at hearing was different to several claims made in supporting documentation:
·One of the applicant’s written claims and some supporting statements have contained claims about harm including threats and accusations from relatives or extended family members.[30] However, the applicant did not pursue or rely on these claims when given an opportunity to do so in the hearing. When specifically questioned about disputes with extended family members moving into the family home in Fiji and threatening him not to return, the applicant indicated that this had not occurred, instead telling me that his son first and then one daughter, followed by another, remained in the home after the applicants left. Given this, I will not consider the claim about harm from extended family members or relatives any further.
·The applicant’s son, [Mr B], made a new written claim that the [Address 2] water tank was damaged in 2006. However, when given the opportunity to discuss the history of claimed damage to [Address 2], the applicant did not raise this incident. Accordingly, I will not consider the claim that the water tank was damaged in 2006 any further.
·During the hearing, the applicant did not pursue or rely on the written claim made by his son, [Mr A], that the applicants are discriminated against and threatened by the Methodists, as perpetrators because they are from a different religious background.[31] Instead, during the hearing the applicant clearly stated that he had not experienced any friction with the Methodists in Fiji. Given the applicant’s evidence on this issue I will not further consider the claim of harm based on religious differences.
·The applicant made the written claim that the police have never considered or helped them in the past and never will help them in the future. The claim is also included in some of the supporting statements submitted e.g. ‘local police appear unwilling or apathetic to’ [the applicant’s predicament].[32] The delegate had also recorded that the applicant had claimed that it’s possible some ordinary citizens can get protection from police but not him. However, to the contrary in the hearing, the applicant told me that the police had attended to investigate when the water tank was poisoned in 2005. He also said that they had attended the most serious incident he experienced in Fiji in 2006 when the house was stoned, and that a perpetrator had been jailed as a result. Further, the applicant confirmed during the hearing that he had been a member of the Police Crime Prevention Committee,[33] appointed to assist the local police, which indicates to me that he had a working relationship with them. He also submitted a letter from [a] Police Station dated 17 July 2019 that set out various incidents of harm claimed by the applicant, indicating that the police continue to provide support to the applicant. Given all the above, I will not further consider the claim that the police have not and will not assist the applicant.
Finding: claims about poisoning the water tanks
[30] See paragraphs 9, 10 and 17.
[31] See paragraph 22.
[32] See paragraph 17.
[33] See also paragraph 17, undated supporting letter from[name], Divisional Traffic Officer/Western, [City 1].
The applicant has made consistent claims about the water tank [being] poisoned in 2005 and I accept that this occurred. However, I do not accept the new claim made at the hearing his grandchild was poisoned as a result and was taken to hospital. I consider that had this very serious incident occurred, the applicant would have included it in the claims that he made when he was turning his mind to presenting his written claims for protection. He did not. Instead, his written claim specifically states that he checked and was able to quickly confirm that the tank had been poisoned and he and his son then emptied and scrubbed the tank. Further, the applicant has not claimed that he told his friend who wrote down his protection claims, but that it was then omitted from his claims for protection which were submitted. During the hearing, when queried about this, the applicant told me that he had wanted to keep his claims short in the protection application so he could discuss them in detail later. However, the applicant’s written claims were not short in the protection application; he completed the questions about his claims on the form and added a 3-page handwritten statement. Furthermore, he did not raise this claim during the interview when he was discussing the water tank poisoning event with the delegate. I am satisfied that the applicant does not have a reasonable explanation as to why this claim was made before the delegate’s decision was made, and I conclude that this claim is not credible. I also consider that the applicant’s evidence on this issue indicates that he is prepared to embellish and be untruthful about his claims for protection. Given this finding, I also do not accept the applicant’s claim made during the hearing that the water tank was poisoned in 2010.
During the interview, the applicant claimed that the [Address 2] water tank was poisoned in 2016, and that his daughter, [Ms D], had been admitted to hospital as a result. However, given my concerns about the applicant’s credibility in regard to claims about the tank being poisoned (set out directly above), the lack of supporting evidence noted by the delegate in the decision (discussed with the applicant during the hearing) and the absence of the toxicology report being produced to date, I do not accept that the [Address 2] water tank was poisoned in 2016.
Findings: claim that relocation is impossible; no kinship in other parts of Fiji
The applicant made the written claim that relocation is impossible in Fiji; people remain in the province or village they come from. However, the applicant told me that while 2 of his adult children remain in Taveuni the others live in [other cities]. At the time of the Departmental interview, the delegate recorded that 4 of his children resided in [City 2]. Accordingly, while I accept that Fijian people maintain a strong connection to their village and land,[34] I do not accept the broader claim that relocation for a Fijian is impossible. The applicants’ son, [Mr A], made the written claim that the applicants do not have kinship in other parts of Fiji.[35] I don’t accept this claim either as the applicant gave evidence (that I accepted) that his 6 adult children reside in other areas of Fiji.
Findings: delay in applying for protection and returning 3 times since 2009
[34] Fijians, Wikipedia - accessed 27 August 2024.
[35] See paragraph 22.
Since arriving in Australia in February 2009, the applicant has returned to Fiji 3 times. He most recently arrived in Australia in September 2014 with the partner applicant, and they then delayed a further 2 years before lodging protection visas, including remaining as unlawful non-citizens for almost 10 months. As pointed out to the applicant, this is not behaviour indicative of having a genuine fear of harm in Fiji. The applicant has variously sought to explain the long delay in applying and the 3 return trips to Fiji, on the basis of taking time with his wife to decide the way forward, persuading her to come, investments in Fiji, his lack of education and the cost of obtaining migration advice. However, none of these reasons convince me as to why the applicant returned to Fiji 3 times and delayed so long for applying for protection, if he really did fear the harm he claims, including being killed. Even if I accept that the partner applicant was reluctant to fly or leave their children, they nonetheless delayed applying for protection for almost 2 years after arriving here in 2014. Further, I have already accepted that the applicant operated a successful business in Taveuni for several years. Given this feat, I don’t accept that his limited education was a reason for their long delay in applying for protection. Further, I have already accepted the evidence that theirs is a very large and supportive family, and specifically that [Mr A] has financially supported them. Given this and the fact that they have been working in Australia since 2014, I do not accept the claim that the applicant did not apply because migration advice is too expensive. Nor do I accept the written claims made by [Mr B][36] that the applicant needed to return to Fiji (and therefore to the claimed harm) to see if the perpetrators were continuing their behaviour or the check the crops, as the applicants’ children living at [Address 2] were in a position to provide that information. I do not accept that the applicants’ connection to their land in Fiji prevented them from applying for protection despite the opportunity of almost 2 years to do so. I find that if the applicant had genuinely feared serious harm in returning to Fiji, he would not have waited over 7 years before applying for protection in Australia and would not have returned there 3 times. I further find that the applicant’s evidence on this issue indicates that he is prepared to embellish and be untruthful about his claims for protection. Specifically, I don’t accept his claim given to the delegate that ever since they had arrived in Australia, they had been seeking information about what visa could provide them with protection.
[36] Statement dated 31 July 2024, submitted at the hearing.
The applicant’s son, [Mr B], also raised the lack of English language capabilities of the applicant in providing oral evidence about the 3 return trips and the delay in applying for protection. However, I do not accept this claim, as I have listened to the Departmental interview and a Fijian language interpreter was used on that occasion as was the case in the Tribunal’s hearing. In neither case did the applicant raise the issue of not understanding the interpreter, and in both cases he was specifically asked if he had any difficulties understanding what the interpreter was saying. I consider that the applicant has been given the opportunity to give evidence about why he returned to Fiji 3 times after first arriving here in 2009 and why he delayed applying for protection until July 2016.
Findings: other claims not accepted
Given all the above findings and my concerns about the applicant’s credibility in his claims for protection, I do not accept the following claims:
·The applicants lived on their farm with terror; they were living lives of persecution on Taveuni including blatant attempts made on their lives and they face a life-threatening situation there on their return.
·Their security situation at [Address 2] deteriorated after the 2006 incident in which large rocks were thrown on to the house.
·The applicants would definitely be killed by the out-of-control youths living in the same settlement area if they return there.
·The applicant faced discrimination on Taveuni; they had the life of depression and persecution.
·On Taveuni harm to property from drunken and drugged youth happened or happens continuously.
·The applicant’s claimed experiences have caused him depression, emotional trauma, and he is afraid this psychological burden could eventually kill him.
Findings of fact
I make the following further findings of fact based on consistent evidence and supporting information including country information:
·The applicant was a successful farmer on [Address 1] and then [Address 2] and by the 1990s he also operated a successful business marketing and selling crops from Taveuni. On a date not recalled, a man called [Mr E] broke into the family home and punched the applicant because he was drunk or on drugs and was possibly also motivated by jealousy of the applicant’s success. However, by 2009 the applicant considered himself as older, weaker and more lethargic. He was no longer actively farming.
·Overzealous clearing of forested areas to plant taro and kava crops has led to a reduction in yields on Taveuni island and periodic water shortages. There are losses of soil fertility and productivity (80% decline per hectare).[37] [Address 2] has become less bountiful and profitable than it was in the past. The [Address 2] residence and farm was also damaged by Tropical Cyclone Winston in 2016.
[37] Ecosystem and Socio-Economic Resilience Analysis and Mapping Taveuni Island Fiji, 3 August 2020 – Secretariat of the Pacific Regional Environmental Programme, page 1 – accessed 11 August 2024.
·In 1989 there were 3 incidents caused by drunken men: the family truck was damaged by stones, the family was threatened but unharmed by men with knives, and the house was stoned.
·The most serious incident of harm was when large rocks were thrown at the [Address 2] residence. This occurred in 2006. The applicants were frightened that one of the young grandchildren could be hurt. The police were called and attended. One of the young perpetrators was jailed.
·The Fiji Police Force is regarded internationally as ‘professional’.[38] Overall it has the capacity to protect individuals from societal harassment, discrimination and violence. Police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[39]
·There is no deliberate withholding of protection of the applicant or his family from police. Although some reported incidents have not been resolved, the police have attended when requested by the applicant, or if they didn’t attend, it was because the incident was too far away, rather than because it was the applicant who reported it.
·Alcohol abuse and drug use is a prevalent problem amongst the youth in Fiji, and specifically on Taveuni island. This problem can result in noise, verbal abuse and threats, disturbed sleep and property damage, including on vehicles and buildings. All villagers and residents on Taveuni are potential targets for property damage caused by drunken or drugged youth.
·From time to time the applicant and later his son and daughters have experienced trouble with drunken or drugged youths throwing stones and sticks at the house, damaging or stealing crops and other property. Specifically, the farm vehicle used by the applicant’s daughters was damaged in 2016 and again in 2024 and the water tank at [Address 2] was damaged by cutting in 2010 and 2016 by unknown perpetrators. Crops were stolen in 2014 and again in 2019.
·The applicant is concerned about the issue of alcohol abuse and drug taking amongst the youth of Fiji and considers that they need more guidance including from the Church.
·The applicant does not wish to return to Taveuni, or Fiji, because he and his wife are settled with their son and his family, and they assist in caring for their grandchildren. They have been employed locally for many years. They are valued members of the local community. The crime rate is lower in [Town 1] than where they lived in Fiji.
·The applicants have not lost their ability to make an income. They continue to be employed in Australia. It could be harder for them to find employment in Fiji. However, they would also have the support of their adult children, including those working in Fiji and Australia.
Future harm to the applicant if returned to Fiji
[38] DFAT Country Information Report Fiji 2022 para 5.6.
[39] DFAT Country Information Report Fiji 2022 para 5.10.

The applicant told me that the harm he fears most if returned to Fiji was harm from out-of-control youth because of their drinking and drug taking and the young generation doing whatever they want whenever they want. I have already found that youth substance abuse is a problem on Taveuni and Fiji generally, and that it can on occasions result in noise, verbal abuse and threats, disturbed sleep and property damage, including on vehicles and buildings. I also accept that there may be times where the crime rate increases, e.g. when young workers come into and stay in the local area. However, given my concerns about the credibility of the applicant’s claims noted above, I find that the applicant has significantly embellished the frequency, degree and extent of harm that he claims results from this youth behaviour. I am supported in this conclusion from his other evidence, which I have accepted, that his children continue to live and farm on [Address 2]. I am also supported by country information available which indicates that the complete lawlessness the applicant describes would not be tolerated on an ongoing basis in Fiji. The DFAT Report states that policing is conducted on a community policing model throughout Fiji and police are generally actively engaged with the communities they serve. It further states that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
Does the applicant meet the refugee criterion?
I have accepted that the most serious incident of harm happened in 2006 when the [Address 2] residence was stoned with heavy rocks. This incident took place some 18 years ago. An incident of this seriousness has not been repeated on the home. While I accept that there may be some incidents from substance abuse-affected youth: noise, verbal abuse and threats, disturbed sleep and property damage, including on vehicles and buildings. However, given the instances set out below, I do not consider that these individually or cumulatively amount to serious harm for the purposes of s 5J(4) of the Act.
Section 5J(5) provides that the following are instances of serious harm: (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.
On the basis of the evidence before me, I do not accept that there is a real chance that the applicant will be seriously harmed on his return to Fiji.
Even if I were to accept, which I do not, that there is a real chance that the applicant will be subjected to serious harm by youth in Fiji upon being removed, I am not satisfied that the applicant’s fear of harm is essentially and significantly for any of the reasons outlined in s 5J(1)(a), namely his race, religion, nationality, political opinion or membership of a particular social group as defined under s 5K of the Act. Indeed, the applicant acknowledged that the criminal activity occurs because the youth are drunk or drugged and that everyone in the local area is at risk from them.
In light of the findings above, I am not satisfied that for the purposes of s 5J(1) the applicant has a well-founded fear of persecution. Consequently, I find that the applicant is not a refugee for the purposes of s 5H. As such, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test is considered to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[40] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[41]
[40] MIAC v SZQRB (2013) 210 FCR 505.
[41] Refer to Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170- 1 at [1169], [1180]).
‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
I find that the harm that the applicant may face on return to Fiji does not amount to significant harm. For the reasons already outlined above, I do not accept that there is a real risk that the applicant will suffer significant harm if returned to Fiji. Even if I were to accept, which I do not, that the applicant faces a real risk of being significantly harmed should he be removed to Fiji, I find the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[42]
[42] Section 36(2B) of the Act.
I am, therefore, not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji as the receiving country, there is a real risk that the applicant will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
The applicant partner makes no separate claims for protection. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Phillippa Wearne
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3961

27 August 2024

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