1926054 (Refugee)

1926054 (Refugee) [2021] AATA 5050 (5 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1926054
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Nicole Burns
DATE:5 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 November 2021 at 1:56pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion and ethnicity – outspoken critic of government and supporter of indigenous rights – distant relative of high-profile dissident – social media activity and anonymous threats – criminal conviction and appeal – vague and inconsistent claims and evidence – departed on own passport – no harm to wife and child in home country – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, came to Australia [in] February 2017 to join his wife (along with their [child]) who was studying a master’s degree at [University 1]. He applied for the protection visa on 11 October 2018.
The applicant appeared before the Tribunal via video link on 18 October 2021 and 25 October 2021, giving evidence and presenting arguments about the issues in his case. The Tribunal also heard evidence from [Rev. A], [Church 1], and [Mr B], a retired [Occupation 1] living in [City 1].
The Tribunal exercised its discretion to hold the hearings by video as they were held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the hearings by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. During the second hearing there were some difficulties with the video link for several minutes when the witness, [Mr B], was giving evidence. However, the Member checked with him that she had heard his evidence and the hearings otherwise proceeded without any notable communication problems. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] February 2017 as the holder of a Fijian passport and claims to be a Fijian national. The delegate did not indicate any concerns about the applicant’s claimed identity or nationality. The Tribunal accepts therefore that he is a national of Fiji and Fiji is his ‘receiving country’ for the purposes of assessing his protection claims.
The issues in this review are whether there is a real chance that, if he returns to Fiji, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant claims to fear persecution in Fiji primarily as an outspoken critic of the current government and because he is an indigenous Fijian.
The applicant’s initial claims are set out in his protection visa application and an attached typed statement[1] in which he claims, in summary, as follows:
·As he is not a supporter of the current government he has placed his life and those of his family at risk. He is not well liked by those who support the government in his neighbourhood.
·He has not experienced physical harm but has experienced emotional trauma on numerous occasions when he cannot get the services he has requested from the authorities, who are aware of his political views. For example, he was not able to get a decent job in Fiji since returning from [Country 1] in 2013 and resorted to self-employment. The system is disadvantageous and bureaucratic to those like the applicant because of his political views.
·He is very outspoken and cannot stand to take a back seat and see how local indigenous people have been marginalised since the current government came to power. He is always vocal in defending their rights.
·He could be detained for his views and if he becomes more vocal, it could cause security issues for his family. The police and military are no longer autonomous organisations under the current government.
·As all directives are handed down from the government to the police and military he will not be protected.
·Although democratically elected, the government’s intentions and the way it treats indigenous Fijians is appalling.
·Freedom of speech is limited and he is constrained in speaking his views. He does not want his views to jeopardise the safety of his family.
[1] Dated 11 October 2018
Material provided in support of the visa application included a copy of the applicant’s resume, which shows, among other things, that he was a member of [Employer 1] from March 2002 to October 2012.
The delegate was not satisfied the applicant was a high-profile political opponent in Fiji or had a political profile which would attract any adverse attention from the Fijian authorities, noting there was no evidence that he had been a target of the military for any wrong doings. Further, the delegate found the applicant would not experience harm as an indigenous Fijian, based on country information about government services that could be considered advantageous to indigenous Fijians and the lack of information indicating that there is official discrimination against indigenous Fijians in Fiji, among other things.
On review the applicant provided a letter dated 17 September 2019 to the Tribunal in which he addresses the delegate’s specific findings and provides further information about his situation. His main points were as follows:
·Day-to-day threats and experiences of ordinary citizens like him are not documented. As there have been drastic changes in the political situation since 2014 the delegate should not rely on reports of that date.
·He has been constantly abused verbally and threatened by community members each time he voices his opinion against the current government.
·When he has raised this with police they tell him to watch his words. He has been turned away each time he goes to the police station to lodge a complaint.
·Each time he is vocal about indigenous rights he is told to refer to the constitution. Yet the 2013 constitution stripped indigenous rights when it promoted equal and common citizenry.
To support his contentions in these respects the applicant refers to reports about human rights abuses and torture in Fiji, including from Amnesty International, and country information (including letters to the editor) and print outs of social media posts about (among other things) widespread corruption, electoral fraud, people losing their jobs, suspension of Fiji’s Solicitor-General (Sharvada Sharma), concerns with the 2013 constitution, and about the recent sacking of Fiji’s government statistician after he published the 2019-2020 Household Income and Expenditure survey, which showed that three quarters of Fiji’s poorest are indigenous Fijians, the i-Taukei. Additionally, the applicant provided copies of several news articles, videos and reports about the political situation in Fiji and treatment of indigenous Fijians. He also provided the following documents:
·A copy of a letter of support from [Rev. A], [Church 1], dated 13 September 2019.
·A copy of a letter from Pio Tikoduadua, President, National Federation Party (NFP), Fiji (undated), and a copy of an electoral advertisement for the NFP.
·A copy of a letter of support from [Mr B], [deleted], dated 6 October 2019.
·Copies of letters of support from two of the applicant’s friends based in [City 1], both dated 7 October 2021.
·Typed statements[2] providing an update about the case against Fiji’s current attorney general (Aiyaz Sayed-Khaiyum) by Veronica Malani (and others), with links to media articles. At hearing the applicant said the statements are written by Malani’s supporters on Facebook, which he printed out.
·A typed statement purportedly by Seni Nabou, General Secretary, NFP, 17 September 2021, titled ‘Parliamentary democracy has been reduced to a façade’. The statement spoke of complaints about actions of the Speaker, the Secretariat and the Tables Office of Parliament including rejection of their party’s Motions and Questions.
[2] Dated 12 October 2021
In his oral evidence to the Tribunal, the applicant said he used to live in [City 2], Fiji. He came to Australia in early 2017 to join his wife who was undertaking a master’s degree in [subject] at [University 1] on a [scholarship]. They have a [child], born in [year]. His wife and [child] returned to Fiji after his wife finished her studies in late 2018, so as not to incur debts from her [scholarship]. Presently they live with his mother-in-law in [City 2]. His wife works for [Employer 2] and his [child] attends school (remotely).
The applicant told the Tribunal he did not return to Fiji with his family because he is fearful of the current government and their supporters as he has criticised them in the past on social media. Specifically, for a period of three or so years prior to coming to Australia he posted comments on [social media] on topics including indigenous rights, the government’s dictatorship and how the authorities do not follow the law. He received negative and sometimes threatening comments online as a result. He does not know from who specifically, but suspects the authors created a fake profile and are linked to the Fijian government. The threats included telling him to be careful because they knew where he lived, as well as threats in relation to his family. As a result of the threats, the applicant ceased posting on social media before he left Fiji, and out of concern for his family members in Fiji, he has refrained from posting similar comments whilst he has been living in Australia.
The applicant said he visited the police in Fiji and told them about the threats but they did not take down a report or do anything. He said he cannot remember when he went to the police or how many times.
The applicant said there is no freedom of speech in Fiji and the government – who have networks and supporters everywhere, including in the police and military – hate being exposed. Given they are the law, they can do anything there.
The applicant said if he returns to Fiji he is afraid of the government who run and control everything. They are a dictatorship. Many Fijians are afraid, including those without a voice, not just ministers and opposition leaders. He has heard about a lot of people in Fiji who have been threatened by the government and live in fear. He considers himself to be a voice for those people.
The applicant said his risk from the authorities on return to Fiji may be increased because he is a distant relative of Veronica Malani, who survived a bombing attack in Fiji in 1987. He said the current attorney general was charged with the bombing but never resigned; he still runs everything in Fiji and is able to manipulate matters.
In his oral evidence to the Tribunal, [Rev. A] said he met the applicant not long after he and his wife arrived in [City 1], when they joined his [church]: [Church 1]. He said the applicant is a loving husband and spoke generally about his good character. The reverend said he understood that the applicant had made social media posts which may have not gone down well with the current government in Fiji and if he returns now they might apprehend him. The reverend told the Tribunal that although a democracy, the government in Fiji is dictatorial and anyone known to speak against them is ‘taken to task’, including the media. That is why people like himself who live overseas tell others in Fiji what is going on as there is no proper news there.
In his oral evidence to the Tribunal, [Mr B] said he knows the applicant because they are from the same island in Fiji and the applicant and his wife are distant cousins. When the applicant and his family came to [City 1] in 2017 they came to know one another well.
[Mr B] said he has been living in Australia since 2009. [Details redacted]; he did not return to Fiji, instead applying for protection, which was granted. He is now an Australian citizen and has returned to visit Fiji several times since being granted citizenship in 2012.
[Mr B] said he believes it would be detrimental to the applicant (and his family, although noting they are currently residing in Fiji) if he returned to Fiji because he is a distant relative of Veronica Malani who is embroiled in a legal battle with the current attorney general, Aiyaz Sayed-Khaiyum. Ms Malani alleges that Sayed-Khaiyum was responsible for a politically motivated bombing attack against her and others in 1987. [Mr B] said that since he came to power, Sayed-Khaiyum is vindictive towards anyone related to Malani, and has done many bad things to indigenous Fijians. He is very powerful and can do anything he wants, holding seven portfolios (including attorney general) and having influence over the police, military, judiciary and the Director of Public Prosecutions (DPP) in Fiji. For instance, [Mr B] said two weeks ago, before Ms Malani went to trial, the chief justice in her case received a threatening letter that if she won, her family would be in trouble. [Mr B] said that if the applicant returns to Fiji he may become a victim of the government, given the attorney general ‘runs the show’.
With respect to the status of the Malani case, [Mr B] told the Tribunal the chief justice struck the case out either in August or October (2021); therefore it will not be heard again. However, Ms Malani’s family have indicated they will find other avenues, including, possibly, taking the matter to the International Criminal Court in the Hague given Fiji’s court system is not independent enough.
[Mr B] added that the applicant told him he used to post comments against the Fijian government on social media in the past but not anymore given the risk. He thinks the situation for anyone perceived to be against the government in Fiji is worse now: the current government won the elections in 2014 and 2018 and will do anything to win the next one scheduled for some time in 2022. The government do not tolerate anyone being against them and [Mr B] noted that people in high places have already been sacked. He said that most recently, the chief statistician was removed after he exposed the high levels of poverty in Fiji.
[Mr B] said the Fijian government are corrupt, abuse their power and office, and there are rumours they rigged the previous elections.
The Tribunal notes the applicant gave evidence from a detention centre where he has been detained since July 2021. At hearing he explained that he has been detained because of his involvement in an ongoing criminal matter in Australia. Specifically, he said he was accused of sexual assault, for which he was found guilty in [date]. He has appealed the decision, which is pending. He said his wife knows about the case and is supportive of him. When asked if the case has been reported in the media, including in Fiji, the applicant replied that the ‘media is faster than electricity’. He was asked if he has any concerns on return to Fiji due to his criminal matter in Australia. Initially he said not really, but then added that it would just be another thing to build on by those already against him; that is, the government and their supporters.
Having regard to the evidence before it, including the applicant’s oral evidence at hearing, his submissions and supporting documents provided, and the witnesses’ evidence, the Tribunal makes the following findings about his past experiences, claims and whether his fears of persecution in the future if he returns to Fiji are well founded.
Fear of persecution based on the applicant’s political opinion

The applicant claims he faces persecution on return to Fiji at the hands of the government and/or their supporters because he has criticised the government in social media posts and received anonymous threats (online) as a result in the past. He claims his risk is increased because he is a distant relative of Veronica Malani who has implicated the current attorney general in an allegedly politically motivated 1987 bomb attack against her and others. Also, his risk is potentially increased due to his criminal matter in Australia, as his opponents may use the case against him.
There are several concerns the Tribunal has with the applicant’s evidence in these respects, leading the Tribunal to doubt aspects of his claims, and consider that he exaggerated his purported anti-government activities, profile and related threats. For example, at the visa application stage and in his letter to the Tribunal the applicant claims to have been very outspoken against the government, always defending indigenous Fijian rights, and that he was ‘constantly’ abused verbally and threatened by community members each time he voiced his opinion against the current government. Yet at hearing, whilst claiming to be the voice for voiceless indigenous Fijians, he was unable to articulate how exactly, apart from indicating that he was active on [social media] posting comments and information which could be considered anti-government in the few years prior to coming to Australia in 2017. He said he has not been active and/or outspoken since he came to Australia.
When asked about specific threats by community members (and others) at hearing as a result of his criticism of the government, the applicant said he was referring to comments he received online in response to his [social media] posts, which he assumes were from government supporters who created fake profiles. The Tribunal found his oral evidence about the purported threats vague and lacking in detail. For instance, he said they told him to be careful because they knew where he lived, and threatened him in relation to his family, but he was unable to provide any further details or context. For example about what they were responding to in particular or about what was going on politically or personally for the applicant in Fiji at the time.
Additionally, the applicant does not specifically mention being threatened on social media (or even that he criticised the government via social media) in his protection visa application, which casts doubts on his claims in this regard. In his application he made general statements about being at risk in Fiji because of his political views, and not being liked by government supporters in his neighbourhood, but does not mention where and how he voiced such political views.
More generally, the Tribunal found the applicant’s oral evidence about his purported political opinions, including about indigenous rights and issues in Fiji, was very generalised, and vague. He gave sweeping statements about the current government being dictatorial, controlling all arms of government including the military and police, and about indigenous Fijians losing their land and sea rights, but provided limited details, examples or context.
Further, there were inconsistences in the applicant’s evidence in some key respects. For instance, in his letter to the Tribunal the applicant states that he went to the police in Fiji about alleged verbal abuse and threats from community members (when he spoke out against the government) who turned him away. Yet he did not mention going to the police at all in his protection visa application (or, initially, at hearing), stating instead that as the police and military are already under the government’s dictatorship, there is no chance he can be protected in Fiji. When asked about this at hearing the applicant said he did go to the police in Fiji but the Tribunal found his evidence very vague. He was unsure how many times or when, and provided very limited details.
Another inconsistency exists between the applicant’s written claims in his visa application and oral evidence to the Tribunal. That is, in his application he refers to the ‘emotional trauma’ he has experienced because of the repercussions of voicing his political views, including that he cannot get services requested in Fiji. As an example, he states that he had been unable to get a job in Fiji since returning from [Country 1], and that the system is bureaucratic and disadvantageous to him because of his political views. However, at hearing he gave a different account about his circumstances after returning from [Country 1], explaining that immediately after he left [Country 1] he joined his wife in [Country 2] for some time where she was working, then they returned to [City 2] as a family. In [City 2] he looked after his [child] given his wife’s job (as [an Occupation 2] at [Employer 3]) required her to travel around the Pacific extensively. He did not mention that he was unable to get a job in that period because of his political views, including when asked directly.
Further, the Tribunal notes the applicant’s oral evidence about the timeframe for his online activities criticising the government changed over the course of the hearing. That is, initially he said he stopped posting comments on [social media] after receiving threats and did not post at all in Australia. However, after the witness, [Rev. A], said he thought the applicant was still posting material critical of the Fijian government on [social media], the applicant said he had slowed down his social media activity (criticising the Fijian government) whilst in Australia. However, this is undermined by his earlier evidence to have stopped posting such material online after receiving threats in Fiji. The Tribunal notes [Rev. A] said he had seen the applicant criticise the government online in the past, and thought he still did but did not appear sure. The Tribunal also found [Rev. A]’s oral evidence in this respect vague and general. For example, when asked about what kind of material the applicant had posted, the reverend said it was about the government, what they were doing and by associating himself with people in Australia. However, he did not elaborate or provide any further details or context. Given these considerations and concerns, the Tribunal gives the reverend’s oral evidence in this respect no weight and does not accept the applicant continued to post anti-government material online in Australia. Further, based on the limited information before it, the Tribunal does not accept the applicant has been associating with people in Australia which may lead to him coming to the adverse attention of the authorities on return to Fiji.
Taking into account these considerations and concerns, whilst the Tribunal is willing to accept the applicant may have posted some anti-government comments and/or views on [social media] in the past in Fiji, it does not accept that he or his family members were threatened by the authorities, government supporters and/or community members as a result, either online or otherwise. It does not accept he reported the alleged abuse and threats to the police in Fiji as claimed in his letter to the Tribunal or that he was disadvantaged due to his political views, including from accessing government services or being unable to obtain a job after he returned to Fiji from [Country 1] (around 2013) as submitted.
For the reasons that follow, the Tribunal finds remote the chance the applicant would face serious harm from the government and/or government supporters on return to Fiji on the basis of some [social media] posts about the government (and promoting indigenous rights), made several years ago, the last time before he came to Australia in February 2017. That is because nothing happened to the applicant in Fiji at the time he made the posts, before coming to Australia. At hearing the applicant said that was because he had slowed down his posts. However, for the reasons above the Tribunal does not accept the applicant received threats and therefore does not accept his claims that he refrained from posting or slowed down his posts after being allegedly threatened (online).
Furthermore, the applicant was able to leave Fiji in February 2017 on a passport issued in his own name with no problems, indicating that he was not of any adverse interest to the authorities at that time. The applicant has not indicated that anyone has been asking about him since he has been in Australia, including asking his wife who returned in late 2018, or other family members who have remained there.
Accordingly the Tribunal finds remote the risk that posting some comments on [social media] several years ago that could be construed as anti-government (and not accepting any threats or any follow up concerns or issues) alone would result in the applicant coming to the adverse attention of the authorities on return to Fiji. It does not accept he faces a real chance of serious harm from the authorities, government supporters or anyone else because he posted some anti-government and pro-indigenous Fijian comments on [social media], prior to coming to Australia in early 2017.
Looking to the future, whilst the Tribunal accepts that the applicant may have a view against the current (Bainimarama) government in Fiji, apart from some social media posts made prior to February 2017, he has not expressed his views publicly, even in Australia, and the Tribunal considers therefore that he would not be politically active in terms of opposing the government if he returns to Fiji. He may post some disparaging comments online again but even if he does, the Tribunal does not accept that would result in a real chance of serious harm at the hands of the authorities or anyone else. The Tribunal does not accept that he will become more vocal about his political opinion on return and be at risk of being detained by the police or the military and also causing security issues for his family as claimed at the application stage.
In reaching this conclusion, the Tribunal has had regard to DFAT’s profile of those considered at risk of negative attention, such as arrest or detention, for speaking out in Fiji, which include high profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy[3]. With respect to opposition political party members, DFAT assesses that senior members are at moderate risk of being monitored and intimidated by security forces, and at a low risk of being arbitrarily detained or otherwise harassed, and the leaders of opposition political parties are at a moderate risk of being harassed and monitored, especially in the lead-up to elections.[4] Given what it accepts of the applicant’s claims, the Tribunal is satisfied that the applicant does not fit any of those profiles.
[3] DFAT Country Information Report, Fiji, 27 September 2017 at 3.41
[4] Ibid at 3.46
When this information from DFAT was discussed with the applicant at hearing, he said there are a lot of people in Fiji who are threatened by the government and live in fear, not just the ones at the top such as ministers and opposition leaders. He noted there are many people in the villages, for example, who cannot speak for themselves and often do not know what is going on; he claimed to speak for them. However, for the reasons above the Tribunal finds the applicant’s alleged outspokenness was limited to some [social media] posts last made before he came to Australia in early 2017. It is not satisfied he was or is of adverse attention to the Fijian government or had or has such a profile that would be seen to challenge the government’s authority or undermine its legitimacy, to result in being of adverse attention to the authorities (and/or their supporters) on return.
The Tribunal has also had regard to the letters of support and oral evidence from [Rev. A] and [Mr B]. They indicated that they believed the applicant would be at risk at the hands of the authorities in Fiji if he returned because he had posted comments online critical of the government, and according to [Mr B], also because he is a relative of Veronica Malani, who has accused the attorney general of being involved in an historical bombing case (discussed further below). As noted, [Mr B] spoke, among other things, of the continued oppressive and corrupt political environment in Fiji, which he considers has worsened, including with increasing intolerance for dissent. The Tribunal accepts he genuinely holds these views and he is concerned for the applicant’s welfare on return to Fiji (as is [Rev. A]). Further, the Tribunal accepts some individuals holding (or perceived to be holding) anti-government opinions can be at risk of being harassed, monitored or even detained by the authorities in Fiji, as noted by DFAT earlier. However, for the reasons above, the Tribunal is not satisfied that the applicant has (or would have) such a profile, even taking into account that he made some anti-government social media posts in the past and may be a distant relative of Ms Malani.
The Tribunal has also had regard to the letter provided from Pio Tikoduadua, President, National Federation Party, an opposition party in Fiji. At hearing the applicant said in the past Mr Tikoduadua was physically attacked by the prime minister outside parliament, yet he was suspended, showing the dictatorship of the government. (He forwarded links to media articles about the incident to the Tribunal.) The applicant said he obtained the letter through a colleague of his wife who used to work with Mr Tikoduadua.
The Tribunal accepts his evidence about Mr Tikoduadua, who is currently an opposition Member of Parliament and NFP leader and has experienced problems with the Bainimarama government in the past, including being arrested in April 2020 after he posted allegations that police had thrown a man off a bridge in Naqia village. (He was quickly released, after the public prosecutions office announced there was insufficient evidence to charge Mr Tikoduadua.)[5] In his letter, Mr Tikoduadua talks mainly about his own issues as an opposition member and/or leader in Fiji (and the political environment), and states that he does not know the applicant or his case. The Tribunal accepts the political environment for opposition leaders such as Mr Tikoduadua can be harsh at times in Fiji, and he faces risk of monitoring and arrest. However, this does not apply to the applicant given the Tribunal’s findings that he does not have such a profile and would not on return.
[5] United States Department of State, Human Rights report, Fiji 2020, 30 March 2021, s 2, Human Rights Reports: Custom Report Excerpts - United States Department of State
The applicant provided to the Tribunal several articles and other sources of country information to illustrate what has been happening on the ground in Fiji since he applied for protection, wanting to emphasise that restrictions on political freedoms, freedom of expression and intolerance of dissent continue. Also about complaints made by opposition leaders and members, about the façade of democracy in Fiji. The applicant claims that freedom of speech is limited in Fiji and he is constrained in speaking his views. The Tribunal has had regard to this country information and accepts that significant human rights issues in Fiji currently include restrictions on free expression, such as substantial interference with the right of peaceful assembly.[6] It accepts that on return to Fiji the applicant may be limited to a certain extent in his ability to voice his opinions against the government. Nonetheless, for the reasons above, the Tribunal is not satisfied the applicant has or had a profile that would bring him to the adverse attention of the authorities in Fiji, even accepting there may be some limits on freedom of speech, for example.
[6] United States Department of State, Human Rights report, Fiji 2020, 30 March 2021, s 2, Human Rights Reports: Custom Report Excerpts - United States Department of State
The Tribunal has also had regard to the letters of support from two friends in [City 1]. They both state: they have come to know the applicant since he arrived in [City 1] in 2017; that he is committed to his work, family and church; that he is no threat to society or the security of the nation; and they fully support him in his review. The Tribunal accepts they consider the applicant a good friend and community member and are willing to support him. However, such declarations of support are not directly relevant to the applicant’s claims and do not alter the Tribunal’s findings about the applicant’s core claims for the reasons above (and below).
For these reasons the Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of being imputed with an anti-government political opinion if removed to Fiji, now or in the reasonably foreseeable future.
Fears due to being related to Veronica Malani
The Tribunal has gone on to consider the applicant’s claim that his risk of being harmed at the hands of the authorities (and specifically the attorney general and his supporters) is increased due to being a relative of Veronica Malani.
In his letter to the Tribunal, [Mr B] spoke of an ongoing court matter against the current attorney general made by Veronica Rologavau Malani, allegedly a victim of a bomb attack in 1987 with political motivations. [Mr B] indicated in his letter that the applicant has family connections with Ms Malani and the applicant’s family in Fiji is living in fear that they could be the target of torture. He refers to articles about the matter and states that given the modus operando (sic) of the Bainimarama government, the applicant will likely be harmed by the security forces should he return to Fiji. He notes that to remain blameless for any wrongdoings, Bainimarama and Sayed-Khaiyum use the police, military, the Fiji Independent Commission Against Corruption, the judiciary and the DPP as their ammunition to keep them in power.
In his oral evidence to the Tribunal, [Mr B] reiterated these sentiments (as set out earlier) and gave an example of the chief justice in Malani’s case receiving a threatening letter around two weeks prior to the hearing. The applicant told the Tribunal at hearing that Ms Malani is from the same island [and] said she is ‘like’ a cousin. He said Fiji’s current attorney general was charged with bombing her and her family many years ago but he never resigned; he still runs everything. He thinks Ms Malani is appealing the court case (again) and noted that even so, she has been the victim again, as the attorney general manipulates everything.
When asked if he holds any concerns about being of interest to the authorities on return to Fiji due to this case, as a relative of Ms Malani, the applicant said his fears are already there due to his [social media] posts. When asked if any of his family members who have remained in Fiji – including his mother and [siblings] – have experienced any threats or problems as a result of this case against the attorney general, the applicant said everyone lives in fear but cannot do anything but lay low. He added that nonetheless they are not stable and anything can happen.
Although the applicant did not mention Veronica Malani at all in his protection visa application, the Tribunal is willing to accept she comes from the same province as the applicant and is a distant relative.
Country information indicates that in July 2020 Ms Malani (and her father, a former government minister, and brother) lodged formal complaints with the Fiji police alleging that Sayed-Khaiyum, the current attorney general, planted two bombs in 1987 (in the aftermath of the 1987 military coup that installed Major-General Sitiveni Rabuka’s caretaker government) which killed a bystander and severely injured Ms Malani (who was 14 at the time) and her mother. As reported in The Guardian, the complainants allege Sayed-Khaiyum - then 22 - was part of an Indo-Fijian pro-democracy group (the Fiji Freedom Fighters) responsible for detonating explosives at two separate locations on 17 and 18 October 1987.[7]
[7] Kelvin Anthony and Ben Doherty, The Guardian, ‘Fiji gripped as attorney general investigated for cold-case bomb attack’, 25 November 2020, ttps://

Ms Malani’s complaint was dismissed on 7 January 2021 when the DPP made a decision that there was insufficient credible and reliable evidence to support any criminal charges against the attorney general, Aiyaz Sayed-Khaiyum.[8] Ms Malani lodged an application with the High Court for a judicial review of the DPP’s decision. In September 2021, the Chief Justice dismissed and struck out the leave to apply for a judicial review application of the DPP’s decision dated 7 January 2021[9]. Ms Malani has sought leave to appeal this decision by the Chief Justice. The case has been adjourned until November 30, 2021.[10] It is also reported that in September this year the attorney general filed contempt of court proceedings against Ms Malani and her father in the High Court, after they made comments against the judiciary and members of the judiciary on 10 September in a live video posted on Facebook[11].
[8] Marian Faa, ABC radio national, ‘Fiji’s Attorney General Aiyaz Sayed-Khaiyum cleared of bombing accusations’, 8 January 2021, ttps://
[9] Ashna Kumar, The Fiji Sun, ‘Malani Loses Court Battle Against DPP, A-G’, 11 September 2021, Malani Loses Court Battle Against DPP, A-G (fijisun.com.fj)
[10] Litia Cava, The Fiji Times, ‘Malani case adjourned’, 13 October 2021
[11] The Fijian Government, Medica Centre, ‘Contempt of Court Proceedings Filed Against Veronica and Mano Malani’, 23 September 2021, ttps://>
Reports confirm that Sayed-Khaiyum is a powerful and influential political figure in the Fiji government. He is the secretary general of the ruling Fiji First party and widely regarded as the power behind the throne of prime minister Frank Bainimarama. In addition to being attorney general, he is minister for justice, aviation, communication, climate change, economy, the public service, and anti-corruption[12].
[12] Kelvin Anthony and Ben Doherty, The Guardian, ‘Fiji gripped as attorney general investigated for cold-case bomb attack’, 25 November 2020, >
The Tribunal accepts the applicant comes from the same province as Ms Malani and is her distant relative. Based on the above country information, it accepts she has lodged complaints against the current attorney general in Fiji about a historical bombing, which is being dealt with in the courts. It also accepts the attorney general is a powerful and influential figure in Fiji. However, nothing has happened to the applicant’s relatives – also distant relatives of Ms Malani – who remain in Fiji, including his mother and [siblings]. The applicant gave no indication that they have received threats or even been contacted by the authorities (or their supporters) in relation to Ms Malani and her case against the attorney general. The applicant said they live in fear and are laying low. However, his evidence is that they mostly live in [City 2], and that one of his [siblings] actually works for [the government], indicating to the Tribunal that they are not laying particularly low in this respect.
Given these considerations, the Tribunal finds remote the chance that the applicant would face serious harm at the hands of the attorney general (and his supporters) on return to Fiji on the basis of being a distant relative of Ms Malani in isolation, and when combined with his political opinion claims. His fears of persecution on this basis are not well founded.
In reaching this conclusion, the Tribunal has had regard to Facebook posts allegedly made by Ms Malani’s supporters, providing an update about the matter with links to news reports. They include complaints about: initially Ms Malani not being kept up to date by the police about the investigation; media blackouts (on occasion); allegations that Ms Malani’s residence has been monitored by drones; and that the Malani family had received a threatening email a couple of weeks prior (the post is dated 12 October 2021), allegedly from ‘an organisation where the author is the second most wanted Terrorist by the US government’, the body of which ‘entangled the Chief Justice to act accordingly’. As it is unclear who wrote the post and their sources, the Tribunal gives these allegations little weight. Even if Ms Malani (and her immediate family) may have been monitored and threatened during the course of the legal matter against the current attorney general as these posts allege, the Tribunal does not accept the applicant would be at risk based on being a distant relative (and from the same province) as Ms Malani. There is no suggestion that people with such weak links to Ms Malani – including the applicant’s family members in Fiji – have received threats or are at risk due to their links with Ms Malani.
Criminal matters in Australia
The Tribunal has also considered whether the applicant’s criminal matters in Australia may give rise to a well-founded fear of persecution on return to Fiji.
The Tribunal accepts, based on the applicant’s oral evidence at hearing, that he has been found guilty of sexual assault in Australia and lodged an appeal, which is pending. Media reports indicate that he was one of [the men] found guilty of the [crime] and that the applicant was sentenced to [specified time] in jail for two counts of [Offence 1] and one of [Offence 2].[13] Reports confirm that the applicant (and [the] co-accused) appealed their [convictions].[14]
[13] [Source deleted]
[14] [Source deleted]
The applicant has not indicated that he has received any threats from anyone as a result of the case in Fiji or elsewhere, or holds specific concerns on return in this regard apart from stating that it will be just something else for those who are already against him to use.
As the case has been reported in the media in Australia and Fiji, it is possible the authorities in Fiji and others would be aware of the matter and the applicant’s alleged role. Nonetheless, the Tribunal is not satisfied, for the reasons discussed earlier, that he has a profile or is considered of adverse interest to the Fijian authorities, which would result in a real chance of serious harm, even if the government and/or their supporters came to know about his criminal matter in Australia.
In relation to whether the applicant faces a risk of being of adverse interest to the authorities and possibly examined for penal liability for any of the crimes he committed in Australia in Fiji, as discussed at hearing, country information indicates that the principle of double jeopardy is upheld in Fiji and there are no reports of re-prosecution for crimes committed abroad. Specifically, the constitution provides that a person will not be retried for an offence ‘for which that person has previously been either acquitted or convicted’.[15] The Criminal Procedure Decree 2009 provides that a person who has been ‘tried by a court of competent jurisdiction for an offence and convicted or acquitted of the offence’ will not be ‘tried again on the same facts for the same offence’ if ‘such conviction or acquittal has not been reversed or set aside’. The Criminal Procedure Decree indicates that this prohibition also applies where a person has been previously convicted of a crime outside Fiji.[16]
[15] 'Constitution of the Republic of Fiji (Promulgation) Decree 2013 (Decree No. 24 of 2013)', Government of Fiji Gazette, Government of Fiji, 6 September 2013, (in force 6 September 2013), section 14, in Government of Fiji Gazette. Extraordinary, Vol.14 No.80, 6 September 2013, pp. 2747-2840, at 2761
[16] 'Criminal Procedure Decree 2009', Republic of Fiji Islands Government Gazette, Government of Fiji, p. 982
Therefore, whilst the Tribunal accepts the applicant has a criminal history in Australia and it is likely the Fijian authorities will be aware of this fact on his return, the principle of double jeopardy applies in Fiji, which means he cannot be tried for the same crime he committed in Australia. On this basis the Tribunal is satisfied the applicant would not be re-prosecuted for the crime he committed in Australia on return to Fiji.
Given these considerations, and for these reasons, the Tribunal finds the applicant’s fears of persecution on imputed (anti-government) political opinion grounds are not well founded, taking into account his claims separately and cumulatively.
Indigenous Fijian
The Tribunal has considered if the applicant faces a well-founded fear of persecution on return to Fiji as an indigenous Fijian.
At hearing, when asked about his concerns in this respect, the applicant said the Fijian government wants to take away indigenous Fijians land rights and their sea rights. Further, he said they want to ‘twist everything’ so they have all the power, noting that most indigenous Fijians do not understand English, and the government has abused their human rights and considers itself above the law. Having spent time in [Country 1], the applicant said he became aware of the issues and wanted to fight for his people. He did so by posting comments on social media about indigenous rights and issues.
When asked if he had experienced discrimination and/or specific problems as an indigenous Fijian in Fiji, the applicant replied that it is very hard to say; that one cannot really see it, but that the government twists ‘stuff’ for their own personal networks. His evidence was very general and vague and the Tribunal does not accept he experienced any significant problems as an indigenous Fijian in Fiji in the past.
DFAT, in its most recent country information report on Fiji, indicates that despite constituting a majority, some indigenous Fijians continue to feel a sense of economic marginalisation, on average are less engaged in the cash economy, have lower educational outcomes, and have larger households[17]. Nonetheless, as discussed at hearing, DFAT assesses that overall there is no official discrimination against indigenous Fijians – who constitute nearly 60 per cent of Fiji’s population – and there is a low level of societal discrimination against indigenous Fijians[18]. Other services, including rural development, are provided through indigenous Fijian administration and can be considered advantageous to indigenous Fijians[19]. DFAT states that much of the British-origin native administrative system set up to protect indigenous Fijian culture continues, has been modified and renamed, and is a form of positive discrimination[20]. Land rights of indigenous Fijians and Rotumans are protected under the constitution, and the system of land ownership generally discriminates against Indo-Fijians and other non-indigenous Fijians. A new constitution was promulgated in September 2013 and the interim government’s stated intent included establishing a non-discriminatory constitution and a political system to give equal representation to all Fijian citizens[21].
[17] DFAT Country Information Report, Fiji, 27 September 2017 at 3.12
[18] Ibid at 3.16
[19] Ibid at 3.14
[20] Ibid at 3.13
[21] Ibid at 2.8
At hearing the applicant said people did not consent to the 2013 constitution; the bill was written and passed in parliament without people’s knowledge. (In his letter to the Tribunal the applicant stated that the 2013 constitution stripped indigenous rights when it promoted equal and common citizenry, as noted earlier.) At hearing the applicant also referred to a report he had sent about recent statistical analysis in Fiji showing the majority of households living in poverty in Fiji are indigenous, and that there were attacks on the head statistician for reporting as such (who was removed from his position). The applicant said such a case illustrates what is happening on the ground. The Tribunal accepts many indigenous Fijians in Fiji are poor, as reported. However, the Tribunal is not satisfied the applicant can be (or would be) considered as such given he is educated, worked for several years in [Employer 1] and lived overseas (in [Country 1], [Country 2] and Australia) and whose wife is a highly educated professional.
Given these considerations and country information, the Tribunal finds the applicant does not face a real chance of serious harm from anyone on return to Fiji as an indigenous Fijian. His fear of persecution on this basis is not well founded.
Methodist Christian
The Tribunal has also considered if the applicant has a well-founded fear of persecution on return to Fiji as a Methodist Christian. At hearing he confirmed he is a Methodist who used to practise regularly in Fiji. He did not indicate any problems in doing so and has not raised specific claims in this respect.
According to the 2007 census (the most recent with a breakdown by religion), 64.5 per cent of Fiji’s population is Christian; Protestants make up 45 per cent of the population, of which 34.6 per cent is Methodist. Most indigenous Fijians, who constitute 57 per cent of the population, are Christian. The majority of the country’s traditional chiefs belong to the Methodist Church, which remains influential among indigenous persons, particularly in rural areas, where 44 per cent of the population lives, according to the 2017 census.[22]
[22] US Department of State, International Religious Freedom Report, Fiji, 2020, 12 May 2021
As discussed at hearing, DFAT assesses that there is now little to no official or societal discrimination against members of the Methodist church based on their religion in Fiji.[23] There is no mention in the more recent US Department of State report on religious freedom in 2020 of Methodists in Fiji experiencing discrimination or being obstructed in any way in practising their religion, by the authorities and society.[24]
[23] DFAT Country Information Report, Fiji, 27 September 2017 at 3.24
[24] US Department of State, International Religious Freedom Report, Fiji, 2020, 12 May 2021
Based on such country information, and given the applicant has not experienced any problems in Fiji as a Methodist in the past, the Tribunal finds the applicant does not face a real chance of serious harm as a Methodist on return to Fiji in the foreseeable future.
Conclusion – refugee grounds
For the reasons above, assessed individually and cumulatively, the Tribunal finds the applicant does not face a real chance of serious harm from the authorities or anyone else in Fiji. Accordingly, the Tribunal finds he does not have a well-founded fear of persecution on return to Fiji for any of the reasons advanced and/or that arise.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J of the Act. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Fiji and the Tribunal therefore finds that Fiji is the ‘receiving country’ for the purposes of s 5(1).
For the reasons set out above, the Tribunal has found the applicant does not face a real chance of serious harm in Fiji from the authorities or anyone else on actual or imputed political opinion grounds, as a distant relative of Veronica Malani, because of his criminal record in Australia, as an indigenous Fijian or based on his Methodist religion. 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 the Refugee Convention definition.[25] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Fiji on these bases as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji.
[25] 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], Flick J at [342]
Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nicole Burns
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.
…

[2021] AATA 5050

5 November 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing