1925545 (Refugee)

1925545 (Refugee) [2022] AATA 3730 (30 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1925545
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Haag
DATE:30 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 30 August 2022 at 2:05pm
CATCHWORDS
REFUGEE – protection visa – Fiji – religion and political opinion – supporter of breakaway Christian states – joined political group in Australia – one-time payment and no activity – no previous harm – education, work, church and community activities – member of family unit – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1), 5J, 36(2)(a), (aa), (b), (c), (2A), 65
Migration Regulations 1994 (Cth), r.12, Schedule 2
CASE
MIAC v SZQRB (2013) 201 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 30 August 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 9 February 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or (aa) of the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 12 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [the] second named applicant, and [Mr A], a family friend.
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) of the Act. 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) of the Act, 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-5LA of the Act, 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Section 5AAA of the Migration Act 1958
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s identity and relevant background and employment considerations
In her protection visa application, dated 6 February 2016 and received by the Department on 9 February 2016, the applicant claims to be a Fijian citizen, born [Date 1], in Fiji. She did not state her town or city of birth. She claims to be ethnically Fijian and part of the [Church 1]. She states that she can speak, read and write Fijian and English.[1]
[1] Part C – Application for a protection visa, Department file [Number].
The applicant listed [the second named applicant] as her dependant and he is a dependent applicant in this review.
The applicant stated she was married [in] May 2012 in Fiji.[2] She provided the Department with a certified copy of her marriage certificate.[3] She listed ‘[Child 1] and [Child 2]’ as ‘children’ not included in the application.[4] In Part B of the application form, she referred to a son born in [Year], who was living in [Town].[5]
[2] Part C – Application for a protection visa, Department file [Number].
[3] Department file [Number], folio 11.
[4] Part C – Application for a protection visa, Department file [Number].
[5] Part B – Application for a protection visa, Department file [Number], folio 74.
She stated she was self-employed in Fiji as an [Occupation 1]. She did not provide an employment history in her visa application.[6] While giving evidence in the hearing, the applicant elaborated on her employment history. She was employed in a [workplace 1] where her duties included [Job tasks]. There is no evidence or country information before the Tribunal that establishes to the satisfaction of the Tribunal, that the applicant would be unable to access similar employment, or other employment relevant to her work experience and educational qualifications gained in both Fiji and Australia, if she is returned to Fiji now or the reasonably foreseeable future.
[6] Part C – Application for a protection visa, Department file [Number].
The applicant completed her primary education in Suva and her secondary education in [Town]. In October and November 2010, she undertook a course at [Institution 1]. In 2012 she received [a Qualification] in [Subject 1] from [Institution 2], and [a Qualification] in [Subject 2] from [University], [Town].[7]
[7] Part C – Application for a protection visa, Department file [Number].
From 1986 until arriving in Australia she claimed she lived in [Location 1] in [Town].[8]
[8] Part C – Application for a protection visa, Department file [Number].
The applicant provided the Department with a copy of her passport certified [2016].[9]
[9] Department file [Number], folio 7.
The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that she is a citizen of Fiji, and as such her protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant arrived in Sydney, Australia, [in] October 2015 from Nadi airport on a [Temporary] visa.[10]
[10] Part C – Application for a protection visa, Department file [Number]; Protection Visa Assessment, Tribunal file 1925545, doc ID 6245552.
The applicant stated that she had not travelled to any other country, but that she was a financial member of the ‘Sovereign Christian States of Nadroga – Navaso & Ra in exile’.[11]
[11] Part C – Application for a protection visa, Department file [Number].
She applied for a protection visa on 28 October 2015 which was found to be invalid. She made a valid application for protection on 9 February 2016, which is the application under review. The second named applicant, the applicant’s husband [was] included in the valid application as a dependent applicant.
Secondary applicant
In the protection visa application, the second named applicant claims to be a Fijian citizen, born [Date], in [Island], Fiji. He claims to be ethnically Fijian and part of [Church 2]. He states that he can speak, read and write Fijian and English.[12]
[12] Part C – Application for a protection visa, Department file [Number].
He is married to the applicant. He listed ‘[Child 1 and Child 2]’ as ‘children’ not included in the application.[13]
[13] Part C – Application for a protection visa, Department file [Number].
He stated his occupation to be ‘[Occupation 2]’. He did not provide an employment history. He attended primary school in [Island], and [Institution 3] from 1979 to 1982. He lived in [Island] from 1980 until arriving in Australia.
The second named applicant provided the Department with a copy of his passport certified [2016].[14]
[14] Department file [Number], folio 7.
The documents provided by the second named applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that he has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of Fiji, and as such his protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Secondary applicant’s migration history
The second named applicant arrived in Sydney, Australia, [in] October 2015 from Nadi airport on a [temporary] visa.
He did not provide a travel history but stated that he was a financial member of the ‘Sovereign Christian States of Nadroga – Navaso & Ra in exile’.[15]
[15] Part C – Application for a protection visa, Department file [Number].
Applicant’s evidence
As part of her application for a protection visa she made the following claims:[16]
[16] Part C – Application for a protection visa, Department file [Number].
89 Why did you leave that country(s) [Fiji]?
I am a strong supporter of the 2 Christian breakaway states of Nadroga-Navosa and Ra, and this is being closely monitored by the Bainimarama regime.
Bainimarama warns of severe punishment for sedition.
And also, I associate myself with Ms Oni Kirwin, and all those who are involved in Oni Kirwin have been forewarned by Bainimarama of the harm that awaits us if [w]e go back to Fiji.
90 What do you think will happen to you if you return to that country(s)?
There is military and police brutality happening in Fiji. The torture, rape and brutality continues unabated in Fiji. Death in custody has increased. I fear that this will happen to me if I return to Fiji.
91 Did you experience harm in that country(s)?
No.
…
93 Did you move or try to move, to another part of that country(s) to seek safety?
No.
FIJI IS OVER-MILITIRISED.
We cannot do anything while still in Fiji. Our only option is to get out of Fiji and apply for protection.
94 Do you think you will be harmed or mistreated if you return to that country(s)?
I will be questioned, tortured and Severe punishment by the Miltary People.
95 Do you think the authorities of that country(s) can and will protect you if you go back?
No.
The authorities are ruled by Miltary. They will not protect me in any Circumstances.
96 Do you think you would be able to relocate within that country(s)?
No.
Because I already associate myself with Ms Oni Kirwin and have been forewarned by Bainimarama. All of those who are involved in Oni Kirwin have been forewarned by Bainimarama of the harm that awaits us if we go back to Fiji.
The applicant also provided to the Department the following documents:
a.    A certificate from [Organisation 1], dated February 2012, stating that the applicant had ‘successfully completed both introductory and advanced [Subject 3] schools’;[17]
b.    A Fiji Revenue Receipt, dated [August] 2015, for the amount of $[Amount 1] received from the applicant on account of [Account];[18]
c.     A receipt from [Town] Council, dated [August] 2015 for $[Amount 2], received from the applicant for ‘Business License’, and a [Town] Council Licence, dated [August] 2015, granted to the applicant for a ‘[Business]’;[19]
d.    Letter from [Ms B], [Organisation 2], [Location 2, Island], dated 27 April 2015, in support of the applicant and her husband visiting Australia, stating that the applicant has completed the Introductory and Advanced [Subject 3] Schools, continues to [do a job task]in [Location 1], and will return to Fiji to share her knowledge with local [Occupation 3]s;[20]
e.    Certified copies of various forms of identification including the applicant’s birth certificate, a Fijian voter ID card, bank cards and a Fijian Revenue & Customs Authority card;[21]
f.   Certified copies of various forms of identification in the second applicant’s name, including a birth certificate, a Fijian voter ID card, a Fijian Revenue & Customs Authority card and a ‘Fijian Native Government in Exile’ card, with an expiry date of [December] 2018.[22]
g.    An application for and membership for the applicant to the Sovereign States of Nadroga-Navosa and Ra in Exile, dated [February] 2016, and acceptance of application on the same date and receipt of annual membership fee of $50.[23]
h.    Certificates of completion for [a Qualification] in [Subject 2] and a course in [Computer program] from [University] dated October and November 2012;[24]
i.   Certificates of Participation from [Institution 1] dated December 2010.[25]
j.   An application for membership for the second named applicant to the Sovereign States of Nadroga-Navosa and Ra in Exile, dated [February] 2016, and acceptance of application on the same date and receipt of annual membership fee of $50.[26]
[17] Department file [Number], folio 10.
[18] Department file [Number], folio 9.
[19] Department file [Number], folio 9.
[20] Department file [Number], folio 8.
[21] Department file [Number], folios 4 to 6.
[22] Department file [Number], folios 1 to 2.
[23] Part C – Application for a protection visa, Department file [Number].
[24] Part C – Application for a protection visa, Department file [Number].
[25] Part C – Application for a protection visa, Department file [Number].
[26] Part C – Application for a protection visa, Department file [Number].
On 3 August 2022, the applicant submitted to the Tribunal the following documents:[27]
[27] Tribunal file 1925545, doc ID 10055526.
a.    Screenshot of a photograph of what appears to be the applicants with two adults and four children in a large hall with a stage and seating;
b.    Screenshot of a photograph of people sitting in what appears to be the same space as previous photo;
c.     Letter of support for the applicants, dated 27 July 2022, from [a] teacher at [educational institution] Mildura;
d.    Photograph of what appears to be the applicant with a group of six other individuals around a table with food and drink;
e.    Photograph of the applicants seated in rows with other individuals wearing blue shirts with a logo (indistinguishable);
f.   Letter of support for the applicants, dated 31 July 2022, from the applicant’s sister-in-law (residing in [Country]);
g.    Photograph of a man and a woman standing together in a parking lot;
h.    Letter of support for the applicants, dated 2 August 2022, signed [name deleted], Mother, and [Mr E], Younger Brother, referring to financial support received from the applicants and photographs of the authors’ home, with a second letter from [Mr E] describing how his sister looked after him when he was paralysed;
i.   Group of four photographs of a home, including one with two adults and four children;
j.   Letter of support for the applicants from [Mr A], witnessed 3 August 2022, describing how the applicant cared for him when he had a heart attack;
k.     Australian Citizenship Certificate for [Mr A];
l.   Three photographs of what appears to be the applicant with a man in hospital and in an ambulance;
m.   Hospital admission form and treatment form for [Mr A], dated 4 January 2021;
n.    Photograph of four people singing on a stage;
o.    Two photographs of what appear to be the applicant engaging in [work];
p.    Certificate of completion for [Subject 4], in the name of the applicant, from [Institution 3], dated 27 June 2022;
q.    Confirmation of enrolment for the applicant in Cert III [Subject 5], 14 July 2022, Certificates of completion for [Subject 6] course dated 20 September 2020, and [Subject 7] course dated 21 September 2021; and
r.     [Organisation 3] Safer Churches Workshop certificates for both applicants in 2018.
Secondary applicant’s claims
In Part C of the application for protection, the second named applicant [made] identical claims to the applicant.[28] At hearing on 12 August 2022, [the second named applicant] abandoned any separate claims for protection.
[28] Part C – Application for a protection visa, Department file [Number].
At hearing the Tribunal asked [the second named applicant] whether he made any application for protection because he feared for his safety if he returned to Fiji. He responded ‘No’ to the question. This response was consistent with other evidence [the second named applicant] gave at hearing. He told the Tribunal that he accepted that his claim for a protection visa depended on the success of the first named applicant’s claims for protection, and that he is a member of the same family unit of the first named applicant.
The applicant confirmed in evidence that her husband was supporting her application and that his case on review depended on her success in the review and that the applicant and her husband are members of the same family unit.

Furthermore, [the second named applicant] gave no specific evidence at hearing that he actively engaged in political activity of any sort or, more specifically, antigovernment, or anti-Prime Minister activities in Fiji or Australia. He gave no evidence at hearing about genuinely believing in and actively espousing the establishment of a separate Christian state in Fiji, or that he genuinely believed in and supported Ms Oni Kirwin and her ideas about establishing a separate Christian state in Fiji, notwithstanding having paid a membership fee to join a Christian state group associated with Ms Kirwin.
[The second named applicant] gave evidence at hearing about being admitted to hospital suffering an adverse reaction to a COVID-19 vaccination. He provided no evidence about suffering any long-term ill health because of the vaccination, nor did he provide any expert medical reports or other medical evidence that establishes he suffers from any medical condition that requires or may require on-going or future medical treatment in Australia or Fiji. This was also confirmed by the applicant at hearing.
He gave no evidence at hearing of being threatened with harm or suffering harm in Fiji or fearing he would be harmed for reasons of his political beliefs, religion, or for any other reason specified in s 5J of the Act.
To the contrary, [the second named applicant]’s evidence at hearing, considered as a whole, constitutes evidence that he does not fear for his safety if he returned to Fiji, and that he does not now claim the existence of a real chance he will be subjected to serious harm for any reason specified in s 5J of the Act, or for any other reason, if he is removed to Fiji now or in the reasonably foreseeable future.
Having considered individually and cumulatively the claims attributed to the secondary applicant named in the visa application form, and his documentary evidence and oral evidence at hearing, the Tribunal is satisfied the second named applicant abandoned at hearing all separate claims for protection, and that he relies entirely in this review upon being a member of the same family unit as the applicant, and that the applicant is entitled to a protection visa.
The primary applicant’s claims
At hearing the applicant gave evidence about the evidentiary significance in the review of the photographs that are in evidence. To summarise her evidence, the photographs show that the applicant is employed [in] [a regional] area, and she is also employed as a [Work sector] worker at [Employer].
The subject matter of the photographs also demonstrates that the applicant and the second named applicant [are] actively involved in a Christian church and the church community in the [regional] area.
Other photographs depict the applicant’s brother and his wife who reside in [Country]. They attest to the good character of the applicants and that the applicant and her husband are hardworking persons and dependable persons.
Additional photographs depict the applicant’s mother and her late sister’s children, brother and his family and the rundown house in which they reside in Fiji. The applicant and her husband provide financial assistance to all those persons for their upkeep and to pay for repairs to the house.
In response to the Tribunal asking the applicant why she can’t return to Fiji she made it abundantly clear that she was motivated to leave Fiji for the purpose of realising her dream of coming to Australia to extend her education, increase her income, improve her standard of living, and increase her capacity to provide financial support to her family members and her husband’s family members in Fiji.
The applicant gave evidence in which she compared her hourly rate of pay from her employment in a [workplace 1] in Fiji, compared to her hourly rate of pay in Australia working at [Employer]. The relative difference in income satisfied the applicant she could support her mother, and other relatives in Fiji, if she remained in Australia.
The Tribunal inquired of the applicant whether there are additional reasons she cannot return to Fiji. The Tribunal now summarises her responses.
The applicant informed the Tribunal that in Fiji she can’t support her family. Life in Fiji is hard. Life in Australia is better than in Fiji. In Australia, she received telephone calls from friends who said they had lost their employment and they asked her for financial assistance. She provided financial assistance to these friends.
The applicant also said in her evidence that in Australia she had the freedom to work in a good job and support others in her local community. The applicant’s evidence was supported in evidence her husband gave to the Tribunal. The Tribunal will return to his evidence later in this review.
There is no evidence that the applicant was denied access to employment in Fiji, or that the applicant fears she would be denied access to employment in the future in Fiji.
The Tribunal accepts there is a substantial disparity in the income the applicant received from her employment in Fiji, and the income she is reasonably likely to receive from employment in Fiji in the reasonably foreseeable future, compared to the wages she can reasonably expect to be paid in Australia.
However, the evidence does not establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to systematic and discriminatory conduct in Fiji that would result in significant economic hardship that would threaten her capacity to subsist if she is removed to Fiji now or in the reasonably foreseeable future.
The applicant gave evidence about how she and her husband give on-going support to people in their local community, in addition to people in her Christian church community, who need practical assistance and food baskets.
The applicant gave evidence about the charitable work she performs with her husband as part of their mission as Christians in the [regional] area, and before that in the [Suburb] area of Melbourne.
The applicant’s evidence about her consistent contribution to the congregation of her church and to people in the broader [regional] community who need assistance in the living of their daily lives, is substantiated by compelling written testimonials. Without hesitation, the Tribunal accepts this part of the applicant’s evidence.
According to the applicant’s evidence, the applicant and her husband each made a one-off payment to Ms Oni Kirwin. That payment aligned them with Ms Kirwin and ostensibly made them members of a Fijian Christian State Separatist movement. There is no evidence that either the applicant or [her husband] ever participated in any separatist activities with Ms Kirwin or the Sovereign States of Nadroga-Navosa and Ra in Exile, an organisation apparently led by Ms Kirwin.
According to the applicant she did not pay any additional membership fee to Ms Kirwin after the initial fee. There is no evidence that [the second named applicant] made any additional membership payments to Ms Kirwin in respect of the named organisation, after he made the initial payment. According to the evidence the applicant and the second named applicant allowed their membership of the Christian separatist movement associated with Ms Kirwin to lapse.
According to the evidence Ms Kirwin visited the [regional] area occasionally and asked the applicant for money and the applicant gave it to her. The applicant informed the Tribunal that her only reason for making the one-off membership payment to Ms Kirwin, and subsequently acceding to her requests for money was her belief that in return for money, Ms Kirwin would assist her to obtain a protection visa. The evidence satisfies the Tribunal that Ms Kirwin intentionally induced this state of mind in the applicant.
According to the applicant’s evidence Ms Kirwin compiled and submitted the initial visa applications. As the Tribunal understands the applicant’s evidence and the documentation in the Department file and Tribunal file, these protection visa applications were found by responsible Departmental officers to be invalid.
According to the applicant’s evidence Ms Kirwin refused to provide the applicant’s husband with copies of the documents relating to the first invalid protection visa applications until she was paid an additional $100.
According to the applicant’s evidence she has lost confidence in Ms Kirwin and no longer has anything to do with her.
The evidence and country information provided by the applicant and the DFAT country information report, considered separately and cumulatively, is insufficient to establish to the satisfaction of the Tribunal that the Christian separatist movement said to be led by Ms Oni Kirwin is a bona fide organisation, actively engaged in the pursuit of a separate Christian state in Fiji. Furthermore, the evidence is insufficient to establish to the satisfaction of the Tribunal that Ms Oni Kirwin is a bona fide Fijian Christian separatist.
The evidence and country information before the Tribunal, including the DFAT country information report, considered separately and cumulatively is insufficient to establish to the satisfaction of the Tribunal that Ms Oni Kirwin and the Christian separatist movement she claims to lead is regarded by the authorities in Fiji as an active, influential, and bona fide organisation that poses a genuine threat to national unity and social stability in Fiji.
The Tribunal is satisfied the evidence relevant to the applicant paying a membership fee to join the Sovereign States of Nadroga-Navosa and Ra in Exile, an organisation said to be a Fijian Christian separatist movement and associating herself with Ms Oni Kirwin is evidence that the applicant took those steps for the sole purpose of strengthening her claim to be a refugee.
The Tribunal gives neutral weight to the applicant’s involvement with the Sovereign States of Nadroga-Navosa and Ra in Exile, Ms Oni Kirwin and Fijian separatism.
Furthermore, the evidence is insufficient to satisfy the Tribunal of the existence of a real chance the applicant would be regarded by the authorities in Fiji as a genuine Christian separatist, or that the authorities would impute to her support for the establishment of a separate Christian state in Fiji, if she is removed to Fiji now or in the reasonably foreseeable future.
The applicant gave evidence about owning land in Fiji that is the subject of disputation. In evidence the applicant clarified this matter. The land in question was owned by her late father. He had seven children during his first marriage. After his first wife died, he married the applicant’s mother. Upon the death of the applicant’s father ownership of the land passed to one of the applicant’s stepbrothers, and ownership of the land is now registered in his name.
As the Tribunal understands the evidence the applicant’s stepbrother is the lawful owner of the land. The applicant conceded in evidence that she has no right to dispute ownership of the land through the ordinary court processes in Fiji because her stepbrother owns the land.
The applicant provided evidence that substantiated her claim that one of her reasons for wanting to live in Australia was to further her education. The Tribunal accepts the applicant completed in Australia the courses that are the subject of the certificates of completion now in evidence before the Tribunal. The Tribunal is also satisfied the applicant is currently enrolled in the Certificate III in [Subject III].
The applicant gave evidence to the effect that she is a hardworking person, an active member of a local Church community in [the regional area], that she actively assists needy people in the [regional] area in practical ways including the distribution of food and home visits and welfare checks.
The applicant made clear in her evidence that her purpose in applying for the protection visa is to live permanently in Australia in order to improve her standard of education and standard of living, and to improve the standard of living of the members of her family and her friends in Fiji to whom she provides financial assistance derived from her employment in Australia.
According to the evidence given at hearing by [Mr A], the applicant and her husband are both people of good character; they are hardworking employees and active members of a Christian faith-based congregation in [the regional area]. The applicant and her husband both contribute substantially to the Australian community through their employment and charitable works. The Tribunal accepts this evidence.
It is convenient to reiterate that according to [the second named applicant]’s evidence, he has abandoned all claims to be a refugee, and he does not claim to be entitled to protection on the basis that he is a refugee. The Tribunal accepts this evidence.
According to [the second named applicant]’s evidence he is seeking to live permanently in Australia on the basis that the applicant is a refugee, and that he and the applicant are members of the same family unit.
According to [the second named applicant] he is married to and living with the applicant in an ongoing marriage. The Tribunal is satisfied [the second named applicant] and the applicant are members of the same family unit.
[The second named applicant] gave evidence to the effect that he is living in Australia for the purpose of supporting the applicant’s education and to support their families in Fiji.
According to [the second named applicant]’s evidence, the applicant and [the second named applicant] left Fiji because their financial situation was unsound and life in Fiji was hard. Employment in Australia provided the applicant and himself with the means to support themselves and to provide financial support to their families in Fiji.
In evidence [the second named applicant] also gave evidence to this effect: all he asks is that because he and the applicant are hardworking people and they support their church community in [the regional area] where they live, that they be permitted to remain in Australia permanently.
The Tribunal finds that the applicant and [the second named applicant] are truthful and accurate witnesses and that they are persons of good character.
According to the evidence, [the second named applicant] is [an Occupation 2], and he was [an Occupation 2] before he arrived in Australia. There is no evidence that he was denied access to employment in Fiji and he does not claim that he was denied access to employment, or that he would be denied access to employment at any time in the future in Fiji for reasons of his political opinions, religious beliefs, or for any other reason specified in s 5J of the Act, or for any other reason.
The Tribunal finds that both the applicant and [the second named applicant] are hardworking and reliable in their respective employment in Australia. They are active members of and contributors to the welfare of members of their church community in [the regional area]. The Tribunal also finds that the applicant and [the second named applicant] actively and consistently contribute to the welfare of needy people in the [regional] area irrespective of whether those persons are members of their church community. The applicant and [the second named applicant] distribute food parcels to the needy and provide such people with practical assistance where needed, in respect of matters to do with their daily lives.
The Tribunal is also satisfied the applicant and [the second named applicant] provide financial assistance to members of their respective families in Fiji and occasionally to friends in Fiji who need financial assistance.
The evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant will suffer serious harm from members of the military, other state sponsored actors, non-state actors, or for any other reason if she is removed to Fiji now or in the reasonably foreseeable future.
The applicant claims that Fiji is a military dictatorship and that she would be questioned, tortured, and severely punished if she returns to Fiji. The DFAT country information report with the date 20 May 2022, is inconsistent with the applicant’s characterisation of
Fiji as a country in which the authorities are ruled by the military.
According to the DFAT report, after launching a military coup in 2006 Josaia Voreqe (Frank) Bainimarama he became interim Prime Minister of Fiji in 2007. In the 2014 and 2018 elections the FijiFirst Party led by Frank Bainimarama was elected to government and he served as the Prime Minister of Fiji after both elections, and currently he is the legitimate Prime Minister of Fiji.
DFAT reports that both elections were judged to be credible by the Multinational Observer Group led by Australia.
The DFAT report does not support the applicant’s assertion that the military and police are engaged in systematic rape, torture, and brutality unabated in Fiji. The applicant did not substantiate these claims in her oral evidence, nor did she substantiate the claims with concrete documentary evidence
The applicant stated in her visa application form that she did not experience any harm in
Fiji. There is no evidence that her husband or other members of her family or extended family were ever harmed by the authorities in Fiji.
The evidence does not establish to the satisfaction of the Tribunal that the applicant was engaged in antigovernment or anti-Prime Minister political activities in Fiji.
Furthermore, the evidence does not satisfy the Tribunal that the applicant was a political activist in Fiji or that she was a member of any political group in Fiji that was reasonably likely to have brought the applicant to the adverse attention of the military, the police, government, or the state security apparatus.
The evidence relevant to the applicant’s patterns of life in Fiji does not satisfy the Tribunal of the existence of a real chance the applicant would be detained, questioned, tortured, raped, or other otherwise brutalised by state sponsored actors, or that she would suffer systematic discrimination or serious harm for any reason specified in s 5J of the Act if she is returned to Fiji now or in the reasonably foreseeable future.
There is no evidence of the applicant actively and publicly participating in any activities or making public statements in Australia that would be reasonably likely to cause the authorities in Fiji to apprehend that the applicant or her husband support the establishment of a separate Christian state in Fiji.
Moreover, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance that the applicant would be imputed with the opinion that she supports the establishment of a separate Christian state in Fiji if she is removed to Fiji now or in the reasonably foreseeable future.
Having considered the applicant’s claims individually and cumulatively and the DFAT country information report (20 May 2022), the evidence, considered as whole, is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant will be subjected to serious harm for reasons of political opinion, religion, or for any reason specified by s 5J(1)(a) of the Act, or for any other reason, if she is removed to Fiji now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out is s 5H of the Act.
Complimentary protection
The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
A person will meet that criterion if there are ‘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’.

Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 201 FCR 505.

100. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
101. In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Fiji now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A).
102. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
Findings – first named applicant
103. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied the applicant is a refugee for the purposes of the Act, and therefore the applicant is not a person in respect of whom Australia has protection obligations under the Refugee Convention. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a).
104. Furthermore, having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
105. There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
Findings - second named applicant
106. The Tribunal finds [the second named applicant] is a member of the family unit of the applicant according to the definition in reg 1.12 of the Regulations, and therefore he and the applicant are members of the same family unit as defined in s 5(1) of the Act.
107. Because the Tribunal has found that the first named applicant does not satisfy the legislative requirements for the grant of a protection visa, the second named applicant, being a member of the same family unit as [the first named applicant], does not satisfy s 36(2)(b) or s 36(2)(c) of the Act because he is not a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application, and who engages Australia’s protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. Therefore, the second named applicant is ineligible for a protection visa.
Findings – first and second named applicants

For the reasons given above the Tribunal is not satisfied that either applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) and cannot be granted the visa.
decision

109. The Tribunal affirms the decision not to grant the applicants protection visas.
Ministerial intervention
110. The Tribunal informed the applicant of the right to seek a favourable ministerial intervention if the Tribunal made an unfavourable decision in this review.
Peter Haag
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 3730

30 August 2022

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