1923729 (Refugee)

1923729 (Refugee) [2022] AATA 5088 (18 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Rajendra Pal Chaudhry (MARN: 1571586)
CASE NUMBER:  1923729
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Scott Clarey
DATE:18 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 November 2022 at 2:26pm
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – anti-government – particular social group – family member of somebody involved in a historic coup in Fiji – woman and/or single mother in Fiji – status of women – prevalence of domestic violence – race – indigenous Fijian – iTaukei – vague and speculative evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 a review of a decision made by a delegate of the Minister for Home Affairs on 2 August 2019 to refuse to grant the first named applicant ([applicant name], herein [the first applicant]) and the second named applicant (her [age]-year-old son, [second applicant name]), both citizens of Fiji, protection visas under s 65 of the Migration Act 1958 (the Act). The delegate refused to grant the visas on the basis that they were not satisfied the applicants were owed protection in Australia. [The first applicant] and her son originally applied for the visas on 5 July 2018. On 13 August 2019, [the first applicant] applied to the Tribunal for review of this decision. She provided the Tribunal with a copy of the delegate’s decision record.
[The first applicant] appeared before the Tribunal on 4 October 2022 to give evidence and present arguments. At the Tribunal’s request, [the first applicant] agreed to hold a joint Tribunal hearing with her brother, [named] (the review applicant in Tribunal case 1922374), due to the similarities in their claims for protection. [The first applicant] was not represented at the hearing. The hearing was conducted in English.
At the hearing, [the first applicant] confirmed that she is a [age]-year-old- Fijian national born in [Village 1], Fiji on [date]. She is ethnically indigenous Fijian and of the Christian faith. [The first applicant] speaks, reads and writes Fijian and English. According to her protection visa application, she completed high school in [year] before enrolling in a [Diploma]. [The first applicant] was previously employed in Fiji as a retail worker between 2014 and 2018. She has never been married and has four children. Three of these children, including the second-named [applicant], are with her in Australia; one of her sons lives with [the first applicant]’s mother in Fiji. The Tribunal accepts the above biographical details to be true. [The first applicant] travelled between Fiji and Australia on several occasions between 2014 and 2018. She last arrived in Australia in March 2018 on a visitor visa. She has not left Australia since.
On the basis of the copies of identity documents provided to the Department, the Tribunal accepts that [the first applicant] is a citizen of Fiji, that [the second applicant] is eligible to obtain Fijian citizenship[1], and that their identities are as they claim them to be. The Tribunal accepts that Fiji is their country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
[1] According to country information, see
The issues in this review are whether [the first applicant] and her son [the second applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country of Fiji, there is a real risk they will suffer significant harm.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.
Claims and evidence
Summary of claims
[The first applicant] claims to fear serious harm in Fiji from the Fijian government (and/or agents acting on its behalf) due to her actual (or imputed) political beliefs related to her father’s historic involvement (and subsequent death) in a failed mutiny connected to the political coup that took place in Fiji in the year 2000. [The first applicant] also claims to fear racial discrimination on the basis of a series of recent laws passed in Fiji, including those related to land ownership and valuation. The Tribunal has also assessed these claims in relation to [the first applicant]’s possible membership of a particular social group, that of being a family member of somebody involved in a historic coup in Fiji. [The first applicant] seeks to invoke Australia’s protection obligations for these reasons.
Claims from the protection visa application
[The first applicant] set out her claims for protection in her application as follows (unedited):
Q 76. Why did you leave that country?
A:In the year 2000 my father was one the [soldiers] who was tortured and killed during the coup in Fiji. He [was] killed and tortured with some of his fellow comrades (CRW).
Before he died, everything in our family was good and running smoothly. After his death, everything changed in our family.
My mom started to take in alcohol and smoking, and we were left without a father, a bread winner in the house.
We still had the trauma of what we had to go through everyday.
My brothers were pressured with all that has happened and they too allowed themselves to take in alcohol.
I was at the stage of tertiary, trying to finish up my studies, had to leave it and started looking for jobs, since I’ve still got a younger brother to look after and help in buying of things at home.
It was more pressured, knowing that we were all on out own now.
With the ongoing cases of their death. Soldiers were coming to our house, warning us not to say a word to anyone about how they died.
We were feeling more unsafe and frightened everyday.
We got no support whatsoever from the military and government for my family.
Til my mother’s friend, told her about the Ex-service Men After Care Fund, where she was able to get $124.60 per monthly cheque. And it somehow has helped in paying of bills and food till to date.
With the financial support of my uncle, I was able to come to Australia, in 2013, in assurance with the help of my aunt, for me to come lodge my papers. But, I was not ready and was too young and frightened and always homesick, so I went back to Fiji.
I did returned back, and I somehow got pregnant on my way home. It was never an easy journey since I was being spoken badly off and was criticised by my peers and relatives.
I was then lucky to be given 3 years multiple visa for 42 days stay only in Australia. Whereby I came and did work in the farm just to earn money and bring it home, since I still need to look after my mom who was sick and my son. And also my baby brother, who was still trying to finish his secondary school.
Every money I got from here, I was able to pay our bills, town rates, housing and things for my son.
It was at the time I learned I was pregnant again with my second child, when my mum couldn’t handle the pressure anymore. So she pushed us away. And we went to stay with my aunt in the village.
Even though I was away from my mom and siblings, I still tried my hardest to at least send money to them.
So it was when, I know I had to do something also for my baby and my son and give a living for them.
I made a bold discission leaving my son with my aunt and coming here to do my papers. Because I don’t want what I went through with my family, my children had to went through it.
Because I know, that this is the only country I can give my kids and also my family a new start and a new living.
Q 77. What do you think will happen to you if you return to that country?
A:I am honestly scared of going back home because my brother will still be pressured by my mother, which always led them to take control and drug, which after that always turn in a family conflict every now and then.
Somehow, we know that this case will never be forgotten even today since people still putting it up on social media and families still trying to find justice and finding the murders. We will have to go back to the traumas especially mom have to go through it again.
With myself becoming a single mom to my children it will be hard and I know there is no life for us there, with what’s happening to our family and feeling unsafe too, since the military is taking over the government.
Q 78. Did you experience harm in that country(s)?
A:My family and I were never harmed but was being warned by military personnell’s who used to come home to check on us.
We were told not to speak about my father’s death or the family will suffer.
We didn’t have the strength or the courage to tell anyone, so we kept it to ourselves.
Q 79. Did you seek help within the country(s) after the harm?
A:We were frightened of our lives and didn’t want anyone to suffer by any military personell, since by that time, they were still in control.
There were no freedom of speech and we were feeling unsecure and frightened.
Q 80. Did you move, or try to move, to another part of that country(s) to seek safety?
A: My uncle tried for our family to come here, so he went and met with, the now then, Australian Ambassador [name] to discuss on what to do in order for us to come here.
So, she told us to come first to Australia and then we can do our papers. But with the military knowing everything that’s going, she (the Ambassador) couldn’t help us.
Later on, my mother did two visa lodgements in hope to come to Australia but was unsuccessful.
Which later I did mine but was still unsure for moving right away here since I kept thinking of my family back home and my son, which made me going back home and never lodging my application early.
Q 81. Do you think you will be harmed or mistreated if you return to that country?
A: Definitely I will be harmed. Since the military government, now running the government, they will [unclear] to know about it.
Because going away and settling into another country is my only platform for me and my family to raise our voice out to the people of Fiji and also to the family of the other CRW unit commrades who died.
We can be taken to court and get arrested for what I am doing here.
With the Prime Minister now, Mr Bainimarama, who is also was known to be the one behind the deaths of those soldiers including my father. He will do anything in this power to make us suffer.
Q 82. Do you think the authorities of that country(s) can and will protect you if you go back?
A: Since Mr Bainimarama is still now leading the government and he’s the one behind the deaths of the CRW soldiers.
He wont do anything to help or protect my family/myself.
Q 83. Do you think you would be able to relocate within that country(s)?
A: Since I am not a citizen of any other country but Fiji.
[The first applicant] also submitted to the Tribunal in advance of the hearing a statutory declaration (dated 27 September 2022) that further outlined her claims for protection and the background to her case. The statutory declaration stated (in part):
My claim for a protection visa can be encapsulated as follows:
That my son and I would be subject of harm and cruel and degrading treatment at the hands of the military and the State given my [father] was a soldier who was part of a group of soldiers (rebel soldiers) who tried to take over the Fiji military camp in Nabua, Suva, on 2 November 2000 and to assassinate the then military commander, Frank Bainimarama.
After the mutiny was not successful, Bainimarama had the rebel soldiers rounded up and beaten and executed. My father was one of those who was arrested, detained, taken to the Naval Base outside of Suva, where he was beaten to death by fellow soldiers on 3 November 2000.
I maintain my claim for protection as filed in the Department. My reason for doing so is that the then military commander who is now the Prime Minister has made it clear many times of his hatred for the rebel soldiers.
I have also added a further ground relating to indigenous Fijians being discriminated on account of their race via the 17 decrees that seek to disenfranchise us as a race.
Bainimarama is still in control of the military and in the 2013 Fijian constitution, which he forced on the people, provides for the Fijian military to have overall control of the security and safety of the people of Fiji at s131 (2) of the same constitution, and which reads:
131. (2) It shall be the overall responsibility of the Republic of Fiji Military Forces to ensure at all times the security, defence and well-being of Fiji and all Fijians
This provision is a licence for the military to act as it wants and they will use this to try and justify military officers coming to my home in Fiji and harassing me and my son.
The Fijian military is still very much in control of Fiji despite Fiji having a civilian government under Bainimarama's own 2013 constitution.
Many of the military officers who were with Bainimarama now hold senior positions in the military like the current commander Jone Kalouniwai, Aseri Rokoura and Ben Naliva. In addition to this, the current Police Commissioner, Sitiveni Qiliho, is also a former military officer who was part of Bainimarama's "hit squad", and who was responsible for torching the property where the then President of the Court of Appeal, Gordon Ward, was living.
Despite Fiji returning to elections, the fact remains that Bainimarama and his military officers are still very much in control. The 2013 Constitution, which was forced on the people of Fiji by Bainimarama provides for the military to have overall charge of the security of the nation.
Despite elections, the military has its people gathering intelligence on ordinary citizens. I believe that I will be a target for the military given who I am and what my dad did in being part of the group of soldiers that did the mutiny on 2 November 2000 at the Nabua Military Barracks. I also fear for the safety of my son, [the secondary applicant] if he were to return to Fiji with me.
I was not stopped at the airport when I departed Fiji and I do not know why. However, this should not be seen as my not being a person of interest as it concerns the Bainimarama regime, given that I have been consistently opposed to it and I have also made my views on Bainimarama and his role in the murder of my father known widely since arriving in Australia as I was forbidden to do so in Fiji by the Fijian military. I detest him for what he did and he committed murder, yet is walking free and after committing the 2006 coup has become prime minster. I believe that because of my utterances in Australia at various democracy meetings, I will be a target of the Bainimarama regime and will be subject to cruel and degrading treatment.
The submission received by the Tribunal on 28 September 2022 also attached a number of supporting documents, including:
·a death certificate for [the first applicant’s father] (dated 3 Nov 2000);
·a media article (dated 2 November 2020), ‘20 Years Since the Attempted Mutiny at QEB’;
·a media article (dated 2 November 2020), ‘Let them not die in vain – PM’;
·a media article (dated 1 November 2013), ‘Bloody 2 November 2000’;
·a briefing paper (dated 5 Apr 2006) on CRW Murder Investigation;
·a media article (dated 19 March 2012), [deleted];
·a media article (dated 25 February 2015), ‘Torturer talks on torture’;
·a document titled ‘Preservation of Laws’ (undated);
·a document titled ‘Land Use Decree 2010’ dated 1 July 2010;
·a document titled ‘Elimination of Racial Discrimination: Eighty-first session’;
·a media article (dated 28 September 2020), ‘Over 200,000 people live in poverty in Fiji: UN report’;
·a media article (dated 16 February 2021), ‘No poverty reduction in Fiji over the last six years’;
·a media article (dated 1 October 2021), ‘Survey ‘honest snapshot’ of Fiji’s poverty position, says sacked statistician’;
·a media article (dated 17 April 2020), ‘Fiji’s economic freefall, and the government’s response’.
Evidence from the combined Tribunal hearing on 4 October 2022
At the hearing, [the first applicant]’s brother, [Mr A], told the Tribunal that he was born in a village in Fiji called [Village 1] on [date]. His siblings were also born there. He said the family moved to Suva around 1998. [Mr A] stated that their father was a career soldier in the Fijian army and that the children had been raised with a strong sense of morals and manners. [The first applicant] stated that she went to the same school as her brother and then attended a different secondary school from forms three to six. She said from form three she went to live with one of her aunties. [The first applicant] completed high school and enrolled in a [diploma]. She said that she worked in a [business] owned by her uncle who she was living with at the time. She said that when she turned 21, she gained access to a trust fund set up by her father prior to his death (discussed further below). The Tribunal notes that in her protection visa application, [the first applicant] stated that she previously worked in the retail sector between 2014 and 2018.
[Mr A] told the Tribunal that life for the family had been tough for many years since their father’s death and the circumstances surrounding it. He said their father was a key participant in the failed mutiny connected to the coup d’état attempt in Fiji in the year 2000. Their [father] was part of a small group of rebel soldiers who were involved in a mutiny at a Fijian military camp in the capital Suva on 2 November 2000. [Mr A] said the intention of the mutineers was to assassinate the then military commander, Frank Bainimarama. The Tribunal notes that Mr Bainimarama is now the Prime Minister of Fiji, after first coming to power in 2006 and being elected in 2014 and again in 2018. [Mr A] said he was [age] years old at the time his father was involved in the mutiny, and that up until that point he had only known that his father was a soldier; he nor his family were hitherto aware that he was part of an elite special forces group within the military known as the Counter Revolutionary Warfare Unit (CRWU). He said that immediately after the failed mutiny attempt in November 2000, their father had told their mother that he was part of the CRWU that had instigated the mutiny. He said their mother was shocked at learning this news. She and her children, including [Mr A], took refuge at her neighbour’s house on the day of the mutiny because she was concerned the family may be subject to reprisals from other soldiers and/or people loyal to the government.
[Mr A] told the Tribunal that the mutiny attempt on 2 November 2000 by their father and fellow soldiers was short lived and unsuccessful. The following day, on 3 November 2000, his father was arrested and taken to a naval base outside of the capital for questioning. Although the family was kept in the dark about his father’s status and whereabouts for several days, the historical record showed that [their father] was likely beaten to death by fellow soldiers on the day he was detained. [Mr A] said that when the family finally learned of their father’s passing, they were obviously devastated by the news, not only because of his death, but also because of his involvement in such a high profile and controversial political incident.

[Mr A] said the impact of these events reverberated within the family for years following and continued to be felt today. In the aftermath of their father’s death, [the first applicant] said that their mother took the news particularly hard, and for a time she and her siblings were raised by their extended family in the village in which they were born, while their mother remained in the family home in Suva. [The first applicant] told the Tribunal that their mother struggled to come to terms with these events and her newfound circumstances, and she succumbed to alcoholism during this time. She said that later, her family could not afford for her to finish her studies, like other kids could.
[Mr A] stated that his mother still lived in the family home in Suva with [the first applicant]’s eldest son, and their youngest brother, who he said had just finished studying. [The first applicant] stated that her youngest sister was currently studying at [college] and planned to become a [occupation]. [The first applicant] stated that she has [number] children in [Australia], in addition to her eldest son who lives with her mother in Suva.
The Tribunal asked [Mr A] what contact (if any) the family had with the military in the aftermath of his father’s death. He said that military men had attended the family home very soon after the incident to check if there were any weapons remaining in the house and to question his mother. He said that his mother was threatened by these men. Nonetheless, he stated that the family were able to conduct a private funeral service, however, a military funeral was denied to his father. [Mr A] stated that his father had set up, and contributed money to, an ex-serviceman’s trust fund prior to his death. He said that the government had never denied the family access to these funds following his father’s death, and that the children gained access to the trust when they came of age. [Mr A] said it was these funds that ultimately helped pay for their travel to Australia.
Asked about the ongoing effect of the events surrounding his father’s death on his family, [Mr A] stated that the main impact was psychological. He said their family name is still notorious in some circles because of these historic incidents, and the stigma of his father’s historic involvement in the mutiny still follows the family around today. [Mr A] claimed that this stigma had previously impacted his ability to gain employment. He said that certain industries, such as security, were off-limits to him because it was dominated by former servicemen who recognised his name and still held a grudge against his father. The Tribunal asked [Mr A] what he feared would happen if he were to return to Fiji in the foreseeable future. He responded in relatively vague terms stating words to the effect that he would be intimidated by ‘these people’ and that general police brutality was rising in the country. The Tribunal notes that in his statutory declaration (signed on 27 September 2022), [Mr A] stated that the Fijian military was still very much in control of the country, as demonstrated by the fact that Prime Minister Bainimarama had been the head of government for several years. He stated that various former military officers now held senior positions in the military and across government, including the current police commissioner, who he claimed was also a former military officer.
The Tribunal questioned [the first applicant] about her previous travel to Australia. She stated that she first travelled to Australia in 2014 for a period of three months before returning home to Fiji. She said that her trip to Australia in 2014 was for the purpose of a holiday and she had travelled here on a visitor visa; she had been sponsored by her mum’s cousin who lived in Australia. She said that although she had the intention to apply for asylum when she had previously travelled to Australia, she didn’t have any help to do this and did not want to remain in Australia as an ‘overstayer’ at the time. She said that when she returned to Fiji in 2014, she went back to her village to take care of her grandmother and did not work there. She was back in Fiji for about 12 months before she came back to Australia. She said that her relatives in Australia had told her at this time to stay here as an ‘overstayer’, but she did not want to do that, and returned again to Fiji, this time returning to Suva to stay with her mother. The Tribunal asked if she feared harm when she returned to Fiji at this time. [The first applicant] gave a vague response saying that her mother was stressed by the fact that [the first applicant] could not remain and live in Australia. She referred to her childhood and said that they lived near a military camp in Suva where their father had been stationed, and that when she was growing up some of the other families would refer to them as ‘the rebel’s children’ and were told not to play with them.
The Tribunal notes that [Mr A] also submitted an additional statutory declaration (signed and dated 10 October 2022) to the Tribunal following the hearing, that focussed on the so-called ‘17 decrees’ related to land rights of indigenous Fijians (discussed further below). The Tribunal has had regard to this submission in relation to [the first applicant]’s case, given the overlap between both cases and the issues discussed with the siblings at the combined hearing.
Consideration of claims and evidence
The 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). 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.
Analysis of evidence and findings
The Tribunal has considered [the first applicant]’s claims for protection in light of various sources of country information relating to the situation in Fiji, as summarised below. At the combined hearing, the Tribunal discussed with [the first applicant] and her brother at length various aspects of this country information, including specific information contained in the DFAT country information report on Fiji.[2] The Tribunal gave [the first applicant] an opportunity to comment on this information (discussed further below). As noted above, the Tribunal has also had regard to various country information submissions made to the Tribunal by [the first applicant], including those attached to her statutory declaration submitted to the Tribunal on 28 September 2022.
Issues relating to the historic coup d’état in Fiji in 2000
[2] Department of Foreign Affairs and Trade, Country Information Report – Fiji, May 2022
At the combined hearing, the Tribunal discussed with [the first applicant] and her brother the following country information from the DFAT country information report on Fiji, specifically relating to political opinion and political dissent in Fiji, including treatment of people involved in historic coups d’état:[3]
[3] Department of Foreign Affairs and Trade, Country Information Report – Fiji, May 2022, Sections 3.25, 3.28–3.30 and 3.40–3.41
Political opinion actual or imputed
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.
…
Online protesters
A former political candidate, Benjamin Padarath, was charged with sedition, among other crimes, for his social media posts that were found to interfere with an investigation by the Fiji Independent Commission Against Corruption (FICAC). Padarath allegedly destroyed evidence and leaked information in a way that was considered prejudicial to the investigation. At the time of writing the matter has not been resolved. DFAT notes that, apart from the application of ‘sedition’ charges, such actions would likely also be illegal in Australia and other liberal democracies.
According to media reports, in 2019, a 16-year-old boy was taken from his home by men claiming to be from the army. The men questioned the boy for two days after he posted a picture of graffiti critical of Prime Minister Bainimarama on Facebook. The facts of the case are disputed and DFAT is not aware of the outcome of incident. DFAT is aware of other cases where arrests have been made for online criticism that have not led to prosecutions.
DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act. Media outlets and platform owners may also be subject to consequences, if they are judged to have broken the law.
…
People involved in coups d’état
Fiji has had four coups d’état in recent history. The leader of the 2000 coup, George Speight, is still in prison. Sitiveni Rabuka, who instigated both of the 1987 coups, later served as Prime Minister and Leader of the Opposition. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups.
People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public service is immune from prosecution as set out in the Constitution. DFAT understands from in-country sources that the 2006 coup may be a sensitive topic, but is not aware of a related pattern of violence or discrimination.
When asked at hearing if they would like to comment on this country information, [Mr A] stated that he disagreed with the sentiments outlined in the DFAT report in relation to political dissidents and/or people involved in historic coup attempts in Fiji. He responded in generalised terms with words to the effect that people in Fiji feared discrimination from the current government and that, as a result of the 2013 constitution, Prime Minister Bainimarama was still firmly in control of the country and its security. He said the government still used fear tactics and that people were still fearful. The Tribunal asked [Mr A], why, if the general population was fearful of the government as he stated, had Prime Minister Bainimarama been able to win government on two successive occasions in what, country information suggested, were regarded by the international community as generally free and fair elections.[4] [Mr A] gave a vague response, stating that the reason people were fearful of the Prime Minister and his government was in part due to the rights that were removed in the amendments to the 2013 constitution. He said that many people involved in the coup were now members of parliament.
Conclusion on issues relating to the historic coup attempt in Fiji in 2000
[4] Department of Foreign Affairs and Trade, Country Information Report – Fiji, May 2022, Section 2.4
The Tribunal accepts that [the first applicant] was born in a rural village in Fiji and moved to the capital, Suva, when she was very young. The Tribunal accepts that she is one of four siblings. The Tribunal accepts that [the first applicant]’s father was a soldier in the Fijian army and a member of the CRWU. The Tribunal accepts that [the first applicant]’s father was involved in a failed mutiny attempt on 2 November 2000 connected to a broader coup d’état that occurred earlier that same year. The Tribunal accepts that [the first applicant]’s father was subsequently arrested for his involvement in the failed mutiny attempt, and that he died while in custody in suspicious circumstances on 3 November 2000. The Tribunal accepts that this was a traumatic and devastating event for [her] family, and for [the first applicant] personally who was around [age] years old at the time of these events. The Tribunal accepts that no other member of [her] family, other than [the first applicant]’s father, had any involvement in (or prior knowledge of) the mutiny attempt on 2 November 2000.
The Tribunal has carefully considered [the first applicant]’s claims about returning to Fiji in light of her father’s historic involvement in a mutiny related to the attempted coup d’état in the year 2000, as a family member of a soldier involved in the coup and as somebody who may hold, or may be imputed to hold, anti-government political opinions due to her family history, in light of country information about the Fiji government’s treatment of political dissidents and/or people who were previously involved in historic coups. As noted above, country information related to the treatment of political dissidents and those involved in past coup attempts in Fiji was discussed with [the first applicant] and her brother at the combined hearing and they were given an opportunity to respond to this information. As also noted above, country information, including information contained in the recently published DFAT country information report on Fiji, indicates that people involved in historic coup attempts were often punished at the time these incidents occurred and many have gone on to successful careers within the country subsequently. The weight of country information suggests to the Tribunal that there is generally no significant ongoing impact on the lives of individuals who were directly involved in these events. Country information also suggests that people involved in past coups are unlikely to experience contemporary official or societal discrimination in relation to their involvement in these historic political events.
The Tribunal also considers that there are several aspects of [the first applicant]’s evidence, including in relation to her family’s experience and treatment in Fiji in the two decades since the mutiny incident, that serve to undermine her claims to credibly and genuinely fear persecution for the stated reasons if she were to return to Fiji in the foreseeable future. For example, [the first applicant] and her brother struggled on several occasions to articulate the specific types of harm they feared they would be subjected to if they were to return home to Fiji. [Mr A] had difficulty naming past instances of intimidation or discrimination his family had been subjected to by the Fijian authorities subsequent to his father’s death, aside from visits to the family home by soldiers in the immediate aftermath to search for weapons and question his mother about her knowledge of the events. The Tribunal notes that [the first applicant] explicitly stated in her protection visa application that her family were not harmed by the military during this time but had been warned by them not to talk about the circumstances surrounding her father’s death. The Tribunal notes that [her] family was able to grieve and bury [the first applicant]’s father after his death, including by holding a traditional funeral. Although the Tribunal accepts that [the first applicant]’s mother has had trouble coming to terms with her husband’s death and has suffered various related issues (including alcoholism) since his passing, she remains living in the family home in Suva with her son, daughter and grandchildren. [The first applicant] and her siblings and children have been able to travel freely throughout this time between their ancestral village (and extended family) and the capital Suva where her mother lives, and [the first applicant] has been able to travel freely to Australia on several occasions since 2014. [The first applicant] and her siblings were able to complete their schooling and enrol in higher education courses. [The first applicant], by her own admission, has been able to gain employment as an adult in various jobs in Fiji. [The first applicant] also stated that the family retained access to an ex-serviceman’s trust fund (and the funds within it) that was set up by her late father prior to his death, and that [the first applicant] personally gained access to money from the fund when she turned 21.
Although the Tribunal is aware that an applicant does not have to demonstrate instances of past harm to have a well-founded fear of persecution in the future, the Tribunal is concerned by the fact that [the first applicant] and her brother could not persuasively articulate specific instances of harassment or discrimination inflicted upon them or their family as a result of their father’s involvement in the attempted mutiny (or for any other reason). [The first applicant] has not claimed that she or her family were subjected to harm by the Fijian authorities (or anybody else) in relation to her father’s involvement in the attempted mutiny in the 18 years [the first applicant] lived in Fiji following her father’s death. The Tribunal notes that the reasons [the first applicant] and her brother put forward as to why they believed they would be at risk of suffering serious harm in Fiji if they were to return there in the future were at times vague, speculative and, ultimately, unconvincing.

The Tribunal also notes that [the first applicant]’s frequent travel between Fiji and Australia on several occasions between 2014 and her last arrival in 2018, raise concerns about the genuineness of her claim to fear serious harm in Fiji. When considered in conjunction with the other concerns relating to [the first applicant]’s evidence and claims detailed above and below, the Tribunal finds that her frequent travel to and from Australia, her willingness to return on multiple occasions to Fiji, is not indicative of someone who fears for their physical safety in that country. As discussed above, the Tribunal asked [the first applicant] at the hearing why she had decided to return to Fiji on multiple, frequent occasions and chosen not to apply for protection earlier. She gave a vague response, stating words to the effect that she wasn’t sure how to apply for protection and decided she did not want to stay in Australia unlawfully. The Tribunal has considered [the first applicant]’s response but is unconvinced by it and does not accept it. When this issue is considered in conjunction with its other concerns about [the first applicant]’s claims, the Tribunal finds that it suggests that [the first applicant] did not have a well-founded fear of persecution for the reasons stated.
The Tribunal accepts that [the first applicant]’s father’s historic involvement in the attempted mutiny connected to the coup d’état in Fiji in 2000 has cast a shadow over the [family] since this time given the notoriety of the events. While the Tribunal acknowledges it is possible that [the first applicant] could face a degree of general discrimination in specific circumstances on return to Fiji in the foreseeable future due to her family name, imputations associated with it, and/or her father’s historic involvement in the attempted mutiny, there is little in the evidence (or country information) to indicate or suggest that this would arise to the level of serious or significant harm as envisaged in the Act.
The Tribunal accepts that, on her own evidence, [the first applicant] was in no way involved in the mutiny attempt carried out by her father and that the family had no prior knowledge of her father’s actions in relation to these events. Although there is little evidence before it relating to [the first applicant]’s political associations or activities, the Tribunal is prepared to accept that she has previously attended democracy meetings related to Fijian politics while in Australia. Given the available country information (including information on the government’s treatment of online protesters contained in the DFAT country information report for Fiji outlined above and discussed with [the first applicant] and her brother at the hearing), and having had regard to [the first applicant]’s personal circumstances and narrative as a whole, the Tribunal does not accept that even if the authorities were aware (or became aware) of her political activities in Australia, they would have any interest in, or investigate or harass, [the first applicant] if she were to return to Fiji. On the evidence before it, the Tribunal does not accept that [the first applicant] would have the kind of political profile in Fiji that would attract the attention of the authorities and/or that the authorities would be likely to target her for these reasons if she were to return to Fiji. [The first applicant] has not claimed that she has been threatened by the Fijian government or authorities (or anybody else) in relation to any political views or activity, or for any other reason. The Tribunal notes also that [the first applicant] did not raise any issues related to her political activities in Australia at the combined hearing. The Tribunal does not accept that [the first applicant] would be otherwise imputed with an anti-Fijian government political opinion if she were to return there in the foreseeable future.
Given the country information outlined above, and after considering the evidence before the Tribunal relating to her life history and personal circumstances, the Tribunal finds that [the first applicant] does not face a real chance of suffering persecution involving serious harm on return to Fiji from the Fijian authorities, the Fijian government, agents acting on their behalf, or anyone else, as a consequence of her political opinions (either real or imputed), political activities or associations and/or in relation to her status as a family member of someone involved in a historic coup d’état in Fiji, or for any other reason. The Tribunal finds that [the first applicant]’s fears of persecution on this basis are not well founded.
Issues relating to [the first applicant]’s ethnicity
The Tribunal discussed with [the first applicant] and her brother at the combined hearing general issues relating to their status as ethnic Fijians (or iTaukei) arising from the facts of the case and their specific circumstances. The Tribunal put to [the first applicant] and her brother country information that suggested ethnic Fijians (or iTaukei) face no official discrimination due to their ethnicity. Specifically, the DFAT country information report for Fiji stated:[5]
[5] Department of Foreign Affairs and Trade, Country Information Report – Fiji, May 2022, Sections 3.1–3.5, 3.8-3.10
The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei. Statistics on ethnicity were not released by the Fiji Bureau of Statistics for the 2017 census due to problems when collecting the data.
Parallel ethnic communities have a long history in Fiji. The colonial government encouraged the separate development of ethnic communities that lived, worshipped and were educated separately. Today, some separation between the communities continues but it is not officially mandated. For example, Indo-Fijians tend to make up the majority of the business and farming sectors, but iTaukei Fijians tend to make up the majority of the security forces and the public service.
Since 2009, the Government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. Through mechanisms such as the 2013 Constitution, the Government has reformed or removed racial aspects of the political system, including by abolishing separate ethnic-based voter rolls. Ministers in the current FijiFirst Government are from both major ethnic communities.
The largest opposition party in Parliament is currently the Social Democratic Liberal Party (SODELPA) which polled well in the 2018 election and largely draws its support from iTaukei. FijiFirst is popular among Indo-Fijians, who support its multi-ethnic platform.
Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.
…
Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.
Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.
When asked at the hearing if they would like to comment on this country information relating to indigenous Fijians, [Mr A] said that he disagreed with DFAT’s assessment and that as a result of the 2013 constitution that was forced upon the Fijian people, the rights of indigenous Fijians had been taken away. [Mr A] stated that the ‘17 decrees’ had taken away the rights of indigenous Fijians, including in relation to land ownership, and that this could no longer be challenged in court.
Conclusion on issues relating to ethnicity
The Tribunal accepts that [the first applicant] is a woman of indigenous Fijian (iTaukei) ethnicity who is of the Christian faith. The Tribunal notes that according to country information (as outlined above, and discussed with [the first applicant] at the hearing), indigenous Fijians (iTaukei) form a majority of the Fijian population and dominate various sectors of society. It also notes DFAT’s assessment that indigenous Fijians ‘enjoy significant social, economic and political capital’ and that ‘there is no official discrimination against indigenous Fijians’. The Tribunal has had regard to country information provided by [the first applicant] relating to recent changes to Fijian law, including constitutional amendments in 2013 and the so-called ‘17 decrees’ outlined by the government and its impact on land rights/ownership. The Tribunal has weighed this against country information referred to above. On balance, given the available country information outlined above (and discussed with [the first applicant] and her brother at the hearing), and after considering the evidence before it relating to [the first applicant]’s life history and personal circumstances, the Tribunal does not accept that as a woman of indigenous Fijian (iTaukei) ethnicity, [the first applicant] will suffer harm amounting to serious harm on return to Fiji from society, other ethnic groups, the Fijian authorities or anyone else, for reasons relating to her ethnicity, or for any other reason. It follows that the Tribunal finds that [the first applicant]’s fears of persecution on this basis are not well founded.
Issues relating to [the first applicant]’s status as a woman and/or single mother
Although [the first applicant] had not previously raised any specific issues or concerns related to her status as a woman and/or single mother in Fiji, for thoroughness it has considered [the first applicant]’s circumstances in light of the following country information about the status and treatment of women and/or single mothers in Fiji. This information was discussed with [the first applicant] at the hearing:
Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.
The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur and many women work on land that is owned by their male relatives.
Violence against women and girls
A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence. In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world. The media reported 10 deaths from domestic violence in 2020.
Reported cases of sexual assault are also high. According to media reports, 531 cases of rape were recorded against 240 victims, of whom 165 were minors, in 2020. The Fiji Women’s Rights Movement analysed rape cases in the High Court in 2020 and found a male perpetrator in all 81 cases and an average age of victims of 14 years. Spousal rape is illegal under Fijian law. In April 2021, a man who sexually assaulted his wife when she ‘refused intimacy’ was sentenced to a 6-year and 10-month prison term by the High Court in Lautoka.
Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence (see Police). Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.
A magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection.
An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. This is to prevent victims from being pressured by family to drop the cases. In practice, the Auditor General found (and in-country sources confirmed to DFAT) that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.
NGOs provide some services to women and girls who are subject to violence. For example, the FWCC offers a 24-hour telephone crisis counselling service that can coordinate emergency assistance throughout the country. Lawyers and counsellors might also be available to victims. Women’s domestic violence services reported an uptick in demand during the COVID-19 pandemic. Cyclones, which cause people to shelter together in their homes, have had a similar effect of increased violence.
Women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence. Shelters are unlikely to exist in remote areas and a family member may be relied upon for protection. Conversely, family ties and loyalties and traditional hierarchies can protect perpetrators. Relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks. DFAT assesses that women who experience domestic violence are, by definition, at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.
The Tribunal asked [the first applicant] if she held any fears related to her status as a woman and/or single mother returning to Fiji, including in relation to country information on the treatment and status of women and the prevalence of domestic violence in Fiji. In response, [the first applicant] gave a vague response stating words to the effect that she did not know where her eldest son’s father was, but she had no ongoing relationship with him or his family. She said at one point her ex-partner had tried to take custody of their son, and the end of the relationship had been acrimonious, and they had physically fought while in Fiji. When prompted by the Tribunal, she said that if she were to return to Fiji, her ex-partner would try to contact her and may try to harm her. [The first applicant] then gave a somewhat confused response when questioned about the paternity of her children and when her youngest daughter was conceived, eventually stating when questioned that her ex-partner had since visited her in Australia, and she had become pregnant to him with their youngest child, who was conceived and born in Australia after she had arrived here in 2018. She claimed that she had not spoken to her ex-partner since 2019, after her youngest daughter was born.
The Tribunal has carefully considered [the first applicant]’s issues relating to [the first applicant]’s status as a woman who is also a single mother, in light of country information about the status and treatment of women in Fiji, including in relation to the prevalence of domestic violence there, and with regard to [the first applicant]’s specific circumstances. The Tribunal notes that [the first applicant] had never before made claims related to any fears she held in relation to her status as a woman, and/or single mother and/or in relation to her ex-partner, and it was only under questioning by the Tribunal that any such concerns were raised. Given the available country information, and after considering the personal circumstances of [the first applicant] and her evidence in relation to these issues when they were raised by the Tribunal at the combined hearing, the Tribunal is not satisfied that [the first applicant] would face a real chance of suffering persecution involving serious harm upon her (and her children’s) return to Fiji for reasons relating to her status as a woman who is also a single mother. As such, based on [the first applicant]’s own evidence, the Tribunal finds that here is no real chance she will be seriously harmed as a woman or by reason of domestic violence if she is returned to Fiji.
Issues relating to the Fijian economy and/or [the first applicant]’s ability to subsist in Fiji
The Tribunal notes that according to country information relating to Fiji’s economic situation (discussed with [the first applicant] and her brother at the hearing), Fiji is defined by the World Bank as an ‘upper-middle income country’. According to the DFAT country information report, Fiji is ‘one of the largest economies in the Pacific region’ and its ‘per capita gross domestic product is much higher than most Pacific neighbours’, although there are persistent and high rates of poverty within the country and the pandemic related travel restrictions have negatively impacted the Fijian economy.[6]
[6] Department of Foreign Affairs and Trade, Country Information Report – Fiji, May 2022, Section 2.7
The Tribunal acknowledges and accepts that it may be somewhat difficult for [the first applicant] to find work at least initially on return to Fiji, given she has been out of the country for a few years, but it is not satisfied that such difficulties constitute a well-founded fear of persecution for a refugee reason. Given [the first applicant]’s personal circumstances, including in relation to her education and work history in Fiji and Australia, the Tribunal does not accept that she would to be able to find employment on return to Fiji. The Tribunal does not accept that [the first applicant] faces a real chance of serious harm amounting to persecution including: significant economic hardship that threatens her capacity to subsist; a denial of access to basic services, where the denial threatens her capacity to subsist; or denial of a capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist. For these reasons the Tribunal does not accept that [the first applicant] would be destitute and/or unable to subsist on return to Fiji (as per s 5J(5) of the Act). The Tribunal finds that any fears [the first applicant] may hold in this regard are not well founded.

As [the first applicant] has not claimed to fear harm for any other reason, the Tribunal does not accept that she has a well-founded fear of persecution if she returns to Fiji, now or in the reasonably foreseeable future.
Conclusion – refugee grounds
Having considered [the first applicant]’s claims both individually and cumulatively, all of the available evidence and relevant country information, the Tribunal finds that [the first applicant] does not face a real chance of persecution on return to Fiji in the reasonably foreseeable future due to her race, religion, nationality, political opinion, and/or her membership of a particular social group, or for any other reason, and that her fear of persecution is not well-founded.
For the reasons given above, the Tribunal is not satisfied that [the first applicant] is a person in respect of whom Australia has protection obligations. Therefore, [the first applicant] does not satisfy the criterion set out in s 36(2)(a).
Complementary protection
Having concluded that [the first applicant] does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether there is a real risk that [the first applicant] would suffer significant harm if returned to Fiji, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
[The first applicant] has not advanced any claims indicating that she considers she would face a real risk of significant harm if returned to Fiji other than for the reasons discussed above relating to her claims under the refugee criterion. Given the Tribunal does not accept that [the first applicant] faces a real chance of suffering persecution involving serious harm if she returns to Fiji, the Tribunal also finds, having regard to the findings of fact set out above, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of [the first applicant] being removed from Australia to Fiji, there is a real risk that she would: suffer significant harm in the form of being arbitrarily deprived of her life; have the death penalty carried out on her; or be subjected to torture, cruel and inhuman treatment and punishment and/or degrading treatment or punishment by anybody for any reason.
Consequently, the Tribunal is not satisfied that [the first applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that [the first 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 first applicant] does not satisfy the criteria in s 36(2).
Conclusion in relation to the second named applicant
In light of its above findings regarding the primary applicant ([the first applicant]), the Tribunal has also considered the impact on the second named applicant, [the first applicant’s son], if he were to return to Fiji, having been born in Australia in [year]. The Tribunal notes that [the first applicant] has the support of her Fijian based family members and her eldest son lives in Fiji with her siblings and mother at the family home. While the Tribunal accepts that [the second applicant] may face some difficulties in adjusting to life in a new country, it finds there is nothing in the evidence or the available country information to indicate or suggest that this would rise to the level of serious or significant harm as defined in the Act.
The second named [applicant], has not made any independent claims for protection. As his mother [the first applicant] has not been found to satisfy s 36(2)(a) or (aa), the second named applicant does not meet 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. There is no suggestion that the second named applicant satisfies s.36(2) on the basis of being a member of the same family unit as any other person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.
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 criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion 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.
Scott Clarey
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.
…

[2022] AATA 5088

18 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Standing