1920844 (Refugee)

1920844 (Refugee) [2023] AATA 1024 (12 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1920844

COUNTRY OF REFERENCE: Fiji
MEMBER:David James
DATE:12 January 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2023 at 1:53pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – failed asylum seeker – education – employment – expected denial of pension – financial support for family – return visits to Fiji – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
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 Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
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 Guo (1997) 191 CLR 559
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
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 July 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 January 2019. 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 30 July 2019. The applicant provided a copy of the delegate’s decision with the application for review.
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 10 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Sister A] the applicant’s sister and [Partner A], the applicant’s defacto. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade 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.
Applicant’s claims for protection
The applicant, when applying for the visa outlined his claims for protection as being:
·Due to the economic situation in Fiji and inability of the government to help people develop, he has been deprived with the ultimate opportunity to secure worthwhile employment.
·He understands that to deprive a person of education and employment is persecution in itself.
·Employment at the rate of $2.68 per hour for extended hours is slave labour.
·If he returns to Fiji, he will not get any employment and he will be deprived of a living.
·He has not suffered any physical harm, but he has suffered psychological harm by way of deep depression as he knows there is no future him and his children in Fiji.
·He tried to get meaningful work in other towns, but the cost associated with moving away from home and to live on a meaningless wage of $2.68 per hour would leave him in desperate poverty.
·Now that he had left Fiji and applied for protection, he certainly will never get any chance of meaningful employment as despite the assurance of the Australian government, he can assure that the information on those seeking protection is fed back to the Fijian government who will then deprive him of any pension.
·The Fijian authorities cannot help as all positions of high authority, such as government departments and private sector are controlled by two people.
·He cannot relocate within Fiji as the same circumstances will apply everywhere.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 15 July 2019 to refuse the protection visa was made on the information before the delegate. The delegate was not satisfied that the applicant would face a real chance of persecution if he returned to Fiji, on account of being a failed asylum seeker from Australia and economic conditions he might have endured or would face upon his return on account of his suffering from mental health issues. After considering all of the applicant’s claims both individually and cumulatively the delegate found that if the applicant was to return to Fiji, he would not face a real chance of persecution now or in the reasonably foreseeable future as required by s 5J(1)(b) of the Act. 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 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 13 December 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Tuesday 10 January 2023. 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.
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 at 2.7 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’.
‘Employment and welfare’ at 2.18 to 2.23 where at 2.18 to 2.22 the report states that:
Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.
The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.
The tourism sector was significantly disrupted by the COVID-19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre-pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.
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.
The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. The amounts paid under various schemes (not including food vouchers and bus subsidies) is typically about FJD35-90 (AUD20-60) per month.
As to the ‘Political System’ the report at 2.28 to 2.29 states:
Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.
There are 14 provinces and one dependency (Rotuma, a group of islands about 500 kilometres north of the main Fiji islands, about halfway between Fiji and Tuvalu) as well as 13 municipal councils. Provincial councils for iTaukei residents also exist in some places, sometimes with the input of traditional village headmen. Provincial and local governments are appointed, not elected.
‘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 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.
At 3.32 under the sub-heading of ‘Opposition parties’ 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:
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.
Review hearing – 10 January 2023
The Tribunal hearing was conducted at the Brisbane Registry initially in the English language as the applicant had not requested an interpreter and indicated to the Tribunal at the commencement of the hearing that he understood English.
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 criterion explained that he had come to Australia to be with his wife who was studying in Australia and that he had sold his property in Fiji so that his wife could continue with her studies as he could not afford the mortgage payments on his own. He stated he came to Australia so he could be with his wife and wished to settle here in Australia. The applicant continued telling the Tribunal that his wife was now going to marry another man and he had been asked to sign divorce papers which he has done and sent same to Fiji. He continued saying as he had no kids and no property in Fiji he wanted to stay in Australia so he could earn a living and support his mother in Fiji.
After the Tribunal again questioned the applicant as to his understanding of the refugee and complementary criterion, he replied saying he was not sure he understood those issues. The Tribunal then provided an outline of the refugee and complementary criterion to the applicant who acknowledged that he understood the criterion but thought it best that he now had the assistance of an interpreter, as he was worried that he may get confused during the hearing.
The Tribunal adjourned the hearing and re-convened shortly thereafter when the hearing was re-commenced with the assistance of an interpreter in both the Fijian and English languages. The Tribunal again explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh and provided an explanation of the relevant statutory framework and concepts as to the refugee and complementary protection criterion.
The Tribunal put to the applicant that he had earlier replied to the Tribunal in English explaining that he had come to Australia to be with his wife who was studying in Australia and that he had sold his property in Fiji so that his wife could continue with her studies as he could not afford the mortgage payments on his own. Further that he had earlier stated he came to Australia so he could be with his wife an wished to settle here in Australia and that his wife was now going to marry another man and that as he had no kids and no property in Fiji he wanted to stay in Australia so he could earn a living and support his mother in Fiji. The applicant agreed that he had made these statement to the Tribunal and that they were truthful statements as to his claims.

The applicant informed the Tribunal that although he signed his application it had been completed by [Mr A] and that some of his claims had been put in his application by [Mr A] and that they did not represent his own views and fears. The applicant’s evidence as relevant (in summary) was that:
·He is a married man [age] years of age from [City 2] in Fiji. He is the eldest of [specified siblings] ranging in age from [age range]. His mother and siblings reside in Fiji and he provides financial support to his family by way of regular payments of $500.00 per week from his wage of about $950.00 a week from [Employer 1] where he has been working for the past 3 years [in specified roles]. He resides at [his workplace] with his new partner, [Partner A] who is an Australian resident who arrived in Australia on a partner visa. [Partner A] [an occupation 1] has since separated from her former partner and is now in a relationship with the applicant.
·He had completed his schooling at [a named] College and left school after finishing year [number]. [Between specified years] he had worked as a small crop farmer at [a named] Village and from 1999 through to 2018 he had worked as [an occupation 2] at a [business 1].
·His wife after loosing her job obtained a student visa and travelled to Australia to study in Melbourne. To assist with funding his wife’s studies they sold their house in Fiji and he had travelled to Australia from Fiji as a tourist in July, September and December 2018 to visit his wife in Melbourne.
·Prior to his last trip to Australia (December 2018) he resigned from his employment of 19 years at the [business 1] so he could travel to and remain in Australia with his wife.
·After he had arrived in Australia [in] December 2018 with the intention of living with his wife and remaining in Australia his wife told him that she was divorcing him as she was now living with her new partner in Melbourne. He has at his wife’s request completed divorce papers and has forwarded them to Fiji for processing. He remained in Victoria after receiving this news and while [doing occupation 3 work] in Victoria met [Mr A] who he said was a sort of lay migration agent who offered to assist him with his plans to remain in Australia.
·[Mr A] helped the applicant complete his visa application which was lodged on 18 January 2019 and is the subject of this review. He said that [Mr A] had advised him to claim that it was difficult to live in Fiji and to obtain employment due to the policies of the then Attorney-General and Prime Minister. In reply to the Tribunal questioning whether this claim was truthful he said that now that the government has changed it is different as those two people are no longer ruling.
·In reply to the Tribunal asking him to explain his claims and fears. He said he had no fears as to returning to Fiji. However, he would prefer to stay here (Australia) for his wellbeing. He further explained that he has nothing to return to, as he had sold his house, he has no children, he is no cohabitating with another woman ([Partner A]) and working here allows him to support his mother and siblings in Fiji.
·The applicant was asked to comment on and explain his claims as outlined in his application:
oIn relation to his claim that ‘due to the economic situation in Fiji and inability of the government to help people develop, he has been deprived with the ultimate opportunity to secure worthwhile employment’. He replied that he had resigned from his employment of 18 years as his wife had been dismissed from her work and had moved to Australia to study. He had sold his house as he could not afford the mortgage and pay for his wife’s studies and wished to come to Australia to be with his wife.
oAs to his claim that ‘he understands that to deprive a person of education and employment is persecution in itself’. He commented that he did not understand this claim and he had not completed his application form. He stated he did not make this claim.
oIn relation to ‘employment at the rate of $2.68 per hour for extended hours is slave labour’. He explained that is what we were facing at that time, maybe now the wages have gone up with the new government.
o‘If he returns to Fiji, he will not get any employment and he will be deprived of a living’. His reply was that he has nothing to return to and that he cannot go and live with his mother and siblings as they are struggling. He agreed he was not the subject of any persecution from the Fijian government and that he had resigned his employment and that he had come to Australia to be with his wife after he had sold his house and that he now wants to stay in Australia as he has a job and a new partner. He further stated that as to returning to Fiji that he did not fear any harm but that due to the economic situation he would be hard to get work.
oAs to his claim that ‘he has not suffered any physical harm, but he has suffered psychological harm by way of deep depression as he knows there is no future him and his children in Fiji’. He said he had no children and had not suffered any deep depression and that this claim was probably put in [Mr A].
oAs to ‘he tried to get meaningful work in other towns, but the cost associated with moving away from home and to live on a meaningless wage of $2.68 per hour would leave him in desperate poverty’. His reply was that this claim was incorrect and probably put in by [Mr A]. He further stated that he did not look for any other jobs after he had resigned from his employment at the [business 1].
oIn relation to his claim that ‘now that he had left Fiji and applied for protection, he certainly will never get any chance of meaningful employment as despite the assurance of the Australian government, he can assure that the information on those seeking protection is fed back to the Fijian government who will then deprive him of any pension’. He replied that that may have been the case under the old government but was not the case now.
oAs to ‘the Fijian authorities cannot help as all positions of high authority, such as government departments and private sector are controlled by two people’. He stated that was put in by [Mr A] who had explained to him that this should be claimed. He agreed this was not his claim and he was not making that claim now.
oAs to his claim that ‘he cannot relocate within Fiji as the same circumstances will apply everywhere’. In response he provided no reply to the Tribunal.
·In reply to the Tribunal discussing the country information as outlined above at paragraph 18, the applicant said that employment was difficult to find in Fiji, but it was a safe and secure place, and he did not believe there were any adverse issues for returning asylum seekers in Fiji.
·In conclusion the applicant agreed that he has no fears as to persecution or significant harm in Fiji but that rather he believes his employment prospects are better in Australia. He stated that he feels better living in Australia as he has a good job, earns good money and has a new relationship. He agreed he wished to remain in Australia as he has better opportunities here in Australia.
[Sister A], the applicant’s sister gave oral evidence at the hearing and explained that she is [age] years of age and a citizen of Australia. She explained she had herself arrived in Australia in 2014 on a partner visa. She had since divorced her partner and was in a new relationship and working as [an occupation 1]. She was unable to provide any information as to the applicant’s claims but to say that he was of good character and should be allowed to stay in Australia as he had a good job and was in a new relationship.
The Tribunal also heard from the applicant’s partner, [Partner A] who told the Tribunal that she was a Fijian and an Australian resident. Her evidence was that she was in a relationship with the applicant and lived with him at the [place] where he works. She told the Tribunal that the applicant was a good man.
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 passport, 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.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal; required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
Fear of harm by being deprived of employment – Economic hardship
The applicant’s evidence was that he had voluntarily resigned from his [occupation 2] job at the Fijian [business 1] where he had worked for 18 years so he could travel to Australia to be with his wife who was residing and studying in Melbourne, Australia. His evidence was that he had not sought out any other job opportunities in Fiji at the time he resigned from his long-term employment and has since his arrival in Australia [in] December 2018 not made any enquiries as to employment opportunities in Fiji.
The Tribunal finds that given the applicant’s voluntary resignation of his long-term Fijian employment so as he could join his wife in Australia that he has not and would not in the reasonably foreseeable future be deprived of the opportunity to obtain employment in Fiji if he was to return to Fiji. Notwithstanding the better wages that the applicant has been able to command here in Australia the applicant having been educated in Fiji and having a positive work history including his employment at a [business 1] as [an occupation 2] for 18 years has not and will not be arbitrarily and systematically deprived of the opportunity to work. With reference to the relevant country information as outlined above and notwithstanding high unemployment rates in Fiji given the Fijian economy is an upper-middle income country the Tribunal is not satisfied that the applicant would in the reasonably foreseeable future be deprived of the opportunity to obtain employment. The Tribunal finds that the applicant has not been and will not be deprived of the opportunity of education and employment in Fiji and would given his education and employment skills together with his work history have good prospects of employment if he was to return to Fiji.
The Tribunal finds that the applicant’s fears of being deprived of an opportunity of employment and education are not well-founded.
Fear of harm – Psychological harm
The applicant’s evidence as to his claim of not suffering psychological harm by way of deep depression as to his knowledge that there is no future for him and his children in Fiji was acknowledged at the hearing by the applicant as being false and without basis. He told the Tribunal he did not have any children and that he had not suffered any depression and that this claim had been made by [Mr A] who had filled out his visa application form.
Given the applicant’s overall evidence at the hearing and his concession that this claim was not meritorious and had not been made on his instructions the Tribunal finds that the applicant has not and does not hold or claim this fear and as such the applicant does not have a well-founded fear as to psychological harm.
Failed Asylum seeker
The Tribunal has also considered the applicant’s claims and position as a failed asylum seeker. The Tribunal notes that the applicant did not experience any difficulties in departing Fiji on his own passport on the three occasions he travelled to Australia in 2018. Further the applicant’s evidence was that as to any formal and/or informal reporting of failed asylum seekers to the Fijian government it was his evidence that such reporting may have happened under the former Fijian government but that would no longer be the case under the new Fijian government. Further given the relevant country information as outlined above the Tribunal is not satisfied that the applicant would face any adverse attention from the Fijian authorities when returning to Fiji on account of being a failed asylum seeker.
The Tribunal finds that the applicant does not face a real chance in the reasonably foreseeable future of being persecuted as a failed asylum seeker. The applicant’s fear in this regard is not well-founded.
Refugee criterion
The Tribunal having considered all of the applicant’s claims both individually and cumulatively does not accept any of the applicant’s claims. The Tribunal is not satisfied on the evidence before it that there is a real chance in the reasonably foreseeable future of the applicant suffering serious harm amounting to persecution for any of the reasons outlined in s 5J(1) of the Act if the applicant was to return to Fiji. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act. 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 complementary protection criterions 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 1024

12 January 2023

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