1929081 (Refugee)

1929081 (Refugee) [2023] AATA 3411 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:Unrepresented
CASE NUMBER: 1929081

COUNTRY OF REFERENCE: Fiji
MEMBER:Kate Chapple
DATE:24 July 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.

Statement made on 24 July 2023 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to the government – race – Indigenous Fijian – freedom of speech – fear of detention – return visits to Fiji – change of government in Fiji – compassionate circumstances – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

The primary applicant’s statement of claims accompanying his protection visa application as follows (spelling and grammatical errors not corrected):
My family [names omitted] and our [sons] [names omitted] left Fiji because we were no longer safe in our home country. We left Fiji [in] July 2018 and came to Australia. We left because my wife and I felt unsafe and insecure due the current governing system and the tension between the ruling party and the Indigenous Fijian dominated SODELPA Party and we do not want our three son to be the victims and to suffer throughout their life. The current government has been a threat to my family and I do not want my family to suffer when an up-evil occurs in Fiji in the near future. It has been the talk of the street that there will be unrest after the election in November this year.
The situation in Fiji today is very tensed. I have served my contract at my last workplace and because there is no work available I realized that my family would suffer so bringing them for a break to Australia is an opportunity for my [sons] and my wife to experience what a true democracy is and to experience life in a country where our basic human rights are acknowledged and exercised by the people. Opportunities are limited in Fiji. We cannot fight for our Rights as we the common people do not have a voice. I had to follow the directives from the top and cannot ask questions. Our voice cannot be heard if we complain about the government and I fear being victimized if I speak against or critic the way the government is run. This has been a draw back for me as I spent 12 years in Australia before going back to Fiji and coming to a country where our basic human rights are not exercised have for the last five years depressed and stressed me out. I do not want my children to live in a country where there is double standard and where one is always afraid for the safety of our children.
My right as an indigenous person has been deprived and suppressed because I am an i’Taukei. I do not want to let my [sons] [names omitted] to suffer and go through these ways of life as it will have negative impactions on their future. Returning to Australia in January this year (2018) and spending three months here make me realize the differences and experienced are very different atmosphere in this country, one that I used to enjoy before the 1987 Military take over and later between 1993 and 2000. 1 now see the situation in Fiji as one that is not safe for my [sons]. I do not feel safe and my family is not safe in Fiji.
Some of my rights that have been suppressed and this have resulted in the situation becoming a life threatening situation for me. One of the rights I have been deprived of is my freedom of speech. I cannot criticize the government of the day because it will result in my being arrested and taken to task by the special joint force of the Police and the Military. People are now taken to court and charged for talking against the Government of Fiji. I now am free to comment on the Fiji government and am able to speak freely about the government from this end when I now reside in Australia.
Another that has really had a negative effect on me is Indigenous Rights. As an indigenous person I no longer have the right to my land. The current government is forcing my clan and village members to give up our land to the Land Bank Authority. This has greatly affected 'lie and has negative impact on me and stress and depress me because I cannot do anything about it. I stress over the fact that my children will have to grow up and live in a country where they cannot exercise is own rights as iTaukei (indigenous). I have discussed this a lot with my workmates, my extended family, my friends, and my wife and it has affected me very badly. It has made me very aggressive, hot tempered and short tempered.
I cannot move elsewhere in Fiji to resettle my family. This is because it does not matter where I go the problem will continue to psychologically affect me and my family. We are suppressed and our voice is not heard by the authority (the government of the day), so there is no option but to move out of the country and try to move my children to a safe place before the election. The Prime Minster of my country have already warned the people of Fiji that if they choose the wrong government in the upcoming election (14th Nov 2018), 1 quote "There will be a repeat of the 2000 event". This to me is a threat and I do not want my children to be victims and to suffer as I have experienced during the 1987 military coup.
I have been very vocal now as I am in a good country where freedom of speech is exercised. I am able to challenge the Fiji government and its policies and it makes me feel better as I am now free to exercise my Right. I am afraid for my life, my safety and the safety of my family if we return to Fiji. The psychological stress and depression that I went through has been greatly reduced and I am thankful to this new nation for the assistance it has provided for me enabling me to live through the depression and reduce the problem I brought with me from Fiji.
Other departmental records:
2.1.Decision record relating to the delegate’s refusal decision.
2.2.Case file.
2.3.Internal records relating to the applicants.
Application for review
The applicants lodged an application for review of the delegate’s refusal decision on 14 October 2019.
The primary applicant submitted the following material to the Tribunal on 22 October 2019 in support of the application for review:
4.1.Statement in response to the delegate’s refusal decision (inter alia) as follows (spelling and grammatical errors not corrected):
Section 1 - Refugee criteria assessment
In my case officers final assessment of my wellbeing and general overall outlook of me and my families fear's, our case officer has stated that there is no indication that we are particular targets to suffer the harm that I had mentioned in my application whether it be race, religion, nationality, membership of a particular social group or political opinion. The case officer has stated that we do not come under the ACT 5J(1)(a).
As the Act states that the person must have well-founded fear, I can state that my fear has been about losing my freedom of expression and definitely deprived of my rights as a citizen of Fiji because of my political view and the way I look at how things are operated with the current government. I can honestly say that majority of the citizens back in Fiji are not able to speak against the government of fears of assault and torture from the arm of the military who they say have backed off completely from engaging in government related matters but in so many times are always making the headlines of carrying out Police duties which is definitely against the Human Rights treaty and military breach of personal liberty. The case officer also mentioned in his assessment and findings in Page 8 in paragraph 4 that Military rule ended in 2014.
Please refer to appendix 1 and refer to instances or situation where Military has involved themselves where they shouldn't be. Fiji is meant to be a democratic Nation however Fiji as a nation is far from that.
In Appendix 1 (Article 1) I have included an article from RNZ news New Zealand of the arrest of a Fijian Chief, my chief as I come under the same province who was arrested by the military and Police on eve of His installation as the paramount chief last year in June 2018.
In Appendix 2 (Article 2) I have attached an article by our Fiji's govt biased newspaper Fiji Sun where the Commissioner of Police tries to justify the involvement of the Royal Fiji Military Force (RFMF) on the arrest of a 16 yr old suspected for allegedly writing vulgar language that was directed against the Prime Minister. This was after the Lieutenant Commander mentioned a week earlier that the army cannot arrest civilians. The 16 yr old boy is now claiming that he was assaulted during the time he was taken into custody.
The above cases are just tactics used by the government to try and bully itself into society and put a warning out to citizens that whoever tries to do something that goes against the government of the day will be subjected to prosecution. The fear that I have is that I will not be able to live a normal life in such unstable country that is rule and governed by the military without a doubt. Even though they say that military was long gone in 2014, we must not forget that the Head of Police is a former Military Officer and the Head of the Fiji Prisons is a former Naval Officer.
The Case officer's assessment is that the harm I fear is not for one of the reasons stated in subsection SJ(1)(a) of the Act however, my fear is that I fear being persecuted for reasons of my political opinion.
Section 2 of Part 5 - Indigenous Rights taken awav
In this section the case officer concluded that given the standing of Ethnic Fijians in Fiji, He found that I did not face a real chance of being persecuted on account of my ethnicity. Before coming to this conclusion my case officer touched on the current land bank, he stated that “there is no indication that indigenous Fijians have been greatly disadvantaged by the new land lease program of the government”. One important factor that is to be taken into consideration and one that I have always stood against was that Land Bank under the Land Use Decree is a breach of the fundamental Human Right of Indigenous Fijians to prior and informed consent before any government changes a law or policy affecting our right to native land. Did the indigenous Fijians consent to the law?? Off course No and were we consulted?? No.
Section 3
Furthermore, to my claims in my initial application, I mentioned that Fiji is still very much a country under dictatorship. My case officer in his assessment concluded that Military rule ended in 2014 which I mentioned above, general election returning the country to democracy. He also stated that government permits political gatherings as long as it does not impact national safety, public safety etc. I blatantly disagree with my case officer as majority of things he mentioned above are not happening due to the government actions of trying to bully or diminish the existence of Trade union's which is the only voice of many workers in Fiji. in appendix 3 I am attaching an article from Mr. Felix Anthony who is the National Secretary of the FIJI Trades Union Congress on Workers in Fiji are still working under a Cloud of Fear.
Section 4
Moreover, further into my application it was noted by my case officer that I had mentioned that I am now very vocal and that I am in a good country and that I am able to challenge the government and its policies. The case officer also mentioned that there is no evidence to that I have publicly criticised the government. Whilst I am big critic of the current Fiji government, I still prefer to voice my opinions and frustrations about the current government to my peers and workmates on one on one conversations. As much as many do this openly and publicly my reservations have also been if I go back to Fiji the threat of been prosecuted still stands, even though I am in Australia. This is evident with the case of the son of Fiji's former Prime Minister Mr. Mahendra Chaudhary who now resides in New Zealand. (Appendix 4). The Fiji Courts of Appeal is taking him to court of defamatory comments on social media. In my case my opinions are filtered through conversations with my peers and family and church family where I am comfortable enough to vent my utmost disregard of the current government. So the fear is there that if I was to go publicly with my opinions the fear of the getting prosecuted still lingers in my thoughts and that is certainly something I do not want to go through.
Section 5
In response to my case officer's assessment of my mental health capacity were not an intended result of the government policies.
I would like to say that when you live through 4 military coups, I know the capacity of where my headspace is. I am in situation that life is on the edge or you live in a country where everything is unstable, and a sense of vulnerability is always there. With a place like Fiji where you see so many unhappy faces, and the environment and atmosphere is not what it use to be like, the fear factor sets in all the time. You see a government where policies are only done to suit those in power, cost of living is getting out of control, you read and see crimes one after another, poverty level seems to be on the rise, political parties end up assaulting each other as in the latest case ol our Fiji Prime Minister assaulting a member of the Opposition and surprisingly does not get charged for the offence. (Appendix 5). Sexual Harassment cases been brought up against the PM himself in parliament (Appendix 5). It is very depressing to see where the state of the government is heading economically. In the latest National Budget, the government has had to make drastic and major cuts in the Budget (Appendix 6) due to overspending in previous years. Fiji does not have the capacity to spend big and obviously whoever is looking after the finance side of economy is certainly not doing a good job. When I look at all this factor, my heart bleeds for the nation of Fiji and this has certainly taken its toll on my mental capacity.
The future of my children on one's a great nation has been turmoiled by greed, power hungry, money hungry, selfish leaders who are only concerned about their well-being.
Altogether, I have also attached in Appendix 7 a United Nations Report of the Working Group on the Universal Periodic Review on what they felt that Fiji still needed to address to become compliant with the United Nations Human Rights obligations. It is also a clear indicator that Fiji needs to clean up its backyard and just how sad the state of the Nation is.
Fiji is not a safe Nation to be in and it is a matter of time that something will happen due to the on- going unfair treatments and biased decision makings from government levels. I no longer feel safe and there is no way I would like to see my family especially my young boys grow up in a nation that has been disabled in every way possible. The plight of the nation‘s hangs on the assistance from overseas nations and banks. People will no longer be able to fend for themselves as cost of living will continue to rise from level to level. My political view will only be a view until and unless the current government is totally removed from power.
The Tribunal wrote to the primary applicant inviting the applicants to attend a hearing on 20 July 2023 and to provide pre-hearing submissions.
Prior to the hearing, the primary applicant provided to the Tribunal:
6.1.Confirmation that the applicants intended to participate in the hearing without the assistance of an interpreter or representative.
6.2.A request that the Tribunal take witness evidence from his employer, work colleague, and pastor.
The Hearing
The primary applicant and his wife appeared before the Tribunal at a hearing conducted in person on 20 July 2023, without the assistance of an interpreter. They were unrepresented.
Primary applicant’s evidence
The primary applicant gave evidence summarised by the Tribunal as follows:
8.1.The primary applicant, an indigenous Fijian, was born in [specified year] in Suva where he grew up with his parents and [siblings]. His father is [an occupation 1], and his mother, who died in 2007, was [an occupation 2]. [One sibling] lives in [Country 1] and [work for Agency 1]; his brother is a [subject] graduate who worked for [Agency 2] up to the December 2022 elections, and is now unemployed and looking for another position. The primary applicant had a good upbringing, he was blessed to have working parents, and to have the opportunity to come to Australia for further studies.
8.2.The primary applicant completed his [schooling] in Fiji, and left school in [specified year]. He studied [subject] at [a named university], then came to Australia in 2000, firstly funded by his parents and then on an indigenous scholarship, to undertake a diploma and degree in [subject 1] at [a named] University, which he completed in [year].
8.3.The primary applicant and his family were strong supporters of the Rabuka government when previously in power, in particular their youth and indigenous policies, from which he benefited directly through his scholarship.
8.4.The primary applicant didn’t experience any problems in Fiji apart from living through the upheaval of the coups.
8.5.The primary applicant travelled back and forth between Australia and Fiji on multiple occasions over the period 2000 to 2018 on various visas before applying for protection in October 2018.
8.6.The primary applicant and his wife met in 2012 when they were both working together at [Employer 1] in Fiji. They married in 2013. Their first [children] were born in Fiji; they are aged [respective ages]. The youngest, aged [age], was born in Australia.
8.7.One of the primary applicant’s visas was a criminal justice visa, which was granted to enable him to participate in a criminal trial related to [an] incident he was the victim of in 2013 when working for a [business 1].
8.8.The primary applicant found out about the protection visa option through his own research. He and his wife finally decided to travel to Australia in July 2018 and make a life here because of the growing political instability in Fiji since the 2006 military coup by Bainimarama. It felt like a military dictatorship, indigenous people were denied their rights and freedoms. They couldn’t have their children growing up there.
8.9.The Tribunal read aloud to the primary applicant extracts from the recent country information set out in this decision record, and asked him to comment on his understanding of the political situation in Fiji since the Rabuka government was installed in December 2022. He said the situation is still vulnerable, it is a coalition government, at this stage it is looking good and the majority of people are benefiting, and freedom of speech in the media has been restored, allowing the people access to the information they need to make political judgments. However, he remains sceptical. Crime rates are high and it’s not safe to bring up children there. He is happy with the change in government, and he is hoping for better days ahead, however it will take a long time for people’s mindset to change and for the economy to recover.
8.10.The primary applicant said he had not raised this in his earlier material because he didn’t want to risk involving his father in own affairs. Under Bainimarama, his father was the [appointed as Authority 1]. He was [removed] from his [position] in 2008 because of something he said against Bainimarama. After the recent change in government, the primary applicant’s father was appointed [Position 1] of [Authority 2] in January 2023.
8.11.The primary applicant works as [a] manager in [a service 1] company.
Wife’s evidence

The wife gave evidence, summarised by the Tribunal as follows:
9.1.The wife grew up in a village in [Town 1] with her grandparents who wouldn’t allow her and her siblings to talk against the government. She wasn’t involved in any anti-government activities or any problems with police. When the land bill was passed in 2007, their livelihood was threatened because it allowed anyone to fish in their local waters and not pay royalties.
9.2.The wife met her husband in 2012 when they were both working at [Employer 1] in Fiji. They decided to settle in Australia in July 2018; the trigger was another pending election, it was time to make a better life in Australia.
9.3.The wife fears going back to her village, there’s not much employment, life is hard, most of her family are unemployed, and the political situation is still vulnerable, anything could happen. She sends around $150-200 each month to her family in Fiji.
9.4.The wife is a [manager] at the same company her husband works. [Details deleted.]
9.5.The family calls Australia home.
Witness evidence – employer
The employer gave evidence, summarised by the Tribunal as follows:
10.1.The primary applicant worked for him first in his [business 1] and now manages [named responsibilities] in his current business. The witness visited the primary applicant in Fiji in 2013 when holidaying there; the primary applicant told him he didn’t feel safe in Fiji because of the coup, and he was worried about his father who worked for the government.
10.2.The witness sponsored the primary applicant and family to come to Australia and work for him; he provided house and car and everything the family needed to get set up and live well. He did this until they were granted bridging visas. The applicants are like family to him, he is the godfather to one of the children, he does everything he can to support them, the primary applicant pulls his weight, he’s not a burden to society. The primary applicant tells him he can’t return to Fiji; he’s been worried about his mental health caused by the stress of the visa issue.
Witness evidence – work colleague
The work colleague gave evidence, summarised by the Tribunal as follows:
11.1.The witness has always known the primary applicant to be a strong man, however she had concerns recently about his mental health, the visa issue has taken a toll on him, she doesn’t know the current situation in Fiji, however she believes he genuinely fears returning there. The applicant have become a huge part of business family.
Witness evidence – pastor
The pastor gave evidence, summarised by the Tribunal as follows:
12.1.The pastor has known the primary applicant and his family since 2019 when he came from Fiji. He’s a pastor at the church they attend together and a member of [Agency 3].
12.2.There is a new coalition government in Fiji after 16 years of the former government. There are a lot of changes happening, but you never know what will happen over the coming four years.
12.3.The primary applicant’s father was the [Authority 1], he got [removed] before he finished his term as there was friction between him and the Bainimarama government, he kept a low profile from 2008 to 2023 when he was appointed the [Position 1] of the [Authority 2].
12.4.The primary applicant is looking for fair treatment for his family; he is treated well by his employer and is law abiding. While he talks little about his father, the witness is aware that his father’s experiences affected him a great deal. If the government changes again in the next four years, he has concerns for his father.
Country information
The following country information covers the political situation in Fiji following the change of government in December 2022 (footnotes are set out in Attachment B to this decision record):
Fiji’s political climate is currently in a significant state of flux. In the December 2022 elections Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years of power in Fiji.¹ The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three-party coalition government that includes the Social Democratic Liberal Party (SODELPA) and the PA's political ally, the National Federation Party (NFP).²
It has been only six months since the new government came into power, while former Prime Minister Bainimarama was in power for almost 16 years and ‘wielded extraordinary power over Fiji’.³ The current political climate is characterised by a power struggle between the new prime minister and the former prime minister.⁴ One academic interviewed on the Australian Broadcasting Corporation’s Pacific Beat program states that the now opposition FijiFirst Party ‘no longer has its roots in the state, it no longer has access to the same resources.’⁵
The new government has a very narrow parliamentary majority, although this has not prevented it from embarking on sweeping changes.⁶ There have been a large number of key public service position changes⁷, including the suspension of Fiji's Police Commissioner Sitiveni Qiliho, the Commissioner of the Fiji Corrections Service Francis Kean⁸ and the Director of Public Prosecutions Christopher Pryde.⁹
In February 2023 media articles report that former Prime Minister Bainimarama was suspended from parliament after giving a divisive speech in which he called for the military to intervene.¹⁰ In March 2023 he resigned from parliament (but remains leader of the FijiFirst Party).¹¹
One day later he was arrested and charged with abuse of office.¹² After spending one night in custody he was released on bail.¹³ There is a pre-trial hearing set for 19 July 2023 and a trial date has been set as 17-28 July 2023.¹⁴ Former Attorney General, Aiyaz Sayed-Khaiyum, was also arrested and charged with abuse of office in early May 2023.¹⁵ In mid-May 2023 24 politicians from Fiji First were suspended from parliament for breaching political party auditing requirements, leaving Fiji without an opposition.¹⁶ Most recently, the suspension has been lifted after the party submitted account records.¹⁷
The Economist Intelligence Unit (EIU) assesses that Prime Minister Rabuka’s strategy of ‘quickly moving loyalists into key roles in the bureaucracy’ and taking ‘measures designed to weaken the main opposition’ is high risk.¹⁸
The armed forces commander issued a statement of concern in January, stating that the new government was acting too quickly and with disregard for due process. He was rebuked and has since publicly expressed support for the new government.¹⁹ However, the possibility of another military coup has been raised by analysts.²⁰ The EIU states that ‘if confrontation between the coalition and the opposition escalates to the point of impeding normal functioning of government, there will be a moderate risk of military intervention.’²¹ Conversely, the Australian Institute of International Affairs (AIIA) states that ‘Fijian officials, business leaders, citizens, foreign diplomats, and observers are cautiously optimistic that Rabuka’s coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji’s democratic institutions.’ ²²
Media reports and analysis
The Economist Intelligence Unit (EIU) provides the following brief summary of Fiji’s political climate:
The outlook for Fiji's political stability is deteriorating. The prime minister [sic], Sitiveni Rabuka of the People's Alliance (PA), came to power following the December 2022 general election. He leads a three[1]party coalition government that includes the Social Democratic Liberal Party (SODELPA) and the PA's political ally, the National Federation Party (NFP). The coalition has only a slim parliamentary majority, suggesting that it will be vulnerable to collapse if the coalition parties lacked consensus on important policy decisions. Mr Rabuka seems keen to pursue a high-risk strategy of quickly moving loyalists into key roles in the bureaucracy, and to take measures designed to weaken the main opposition, the Fiji First Party (FFP). The suspension and resignation of the former prime minister and outgoing FFP leader, Voreqe (Frank) Bainimarama, from parliament have raised concerns about political stability in Fiji. The absence of a strong opposition leader will undermine scrutiny on policymaking. EIU believes that if confrontation between the coalition and the opposition escalates to the point of impeding normal functioning of government, there will be a moderate risk of military intervention.²³
A 22 May 2023 article on the Australian Broadcasting Corporation’s Pacific Beat program reports on the suspension of 24 politicians from Fiji First (Frank Bainimarama’s political party). The article notes the claim that Fiji First ‘no longer has its roots in the state, it no longer has access to the same resources:
Twenty-four politicians from Fiji's main opposition party, Fiji First, have been barred from sitting in parliament after its registration was suspended, the parliament's speaker said on Thursday.
Four Fiji political parties were suspended for 30 days on Wednesday for not submitting audited accounts.
Dr Jon Fraenkel, a professor of comparative politics at the University of Victoria in New Zealand, said the suspensions resulted from laws passed by Fiji First itself when it was in power.
He said democracy in the country was being "tested" due to these suspensions, but not as much as it was during former prime minister [sic] Frank Bainimarama's leadership.
"[Fiji First Party] no longer has its roots in the state, it no longer has access to the same resources," he said.
"There have been missteps that show it's going to be a little bit uncertain how it's going to operate in the future as an opposition party."²⁴
In March 2023, The Australian Institute of International Affairs (AIIA) provided the following assessment of Fiji’s new government:
For the first time in 16 years, Fiji has a new government. The coalition has an extremely ambitious agenda, and each day brings it one step closer to long-term stability.
On 14 December 2022, Fijians went to the polls to elect the 55 members of Parliament. All of Fiji is one constituency, and parties that receive more than five percent of the vote are allocated seats in Parliament. FijiFirst, the party of Frank Bainimarama who had served as prime minister since 2007, won 26 seats – just shy of the 28 needed to secure another term in power. This left the door open for the People’s Alliance and National Federation Party, coalition partners who combined also won 26 seats. The “kingmaker” became the Social Democratic Liberal Party (SODELPA), whose three seats would decide the majority coalition. SODELPA ultimately chose to form government with the People’s Alliance-National Federation Party coalition, and on 24 December, Sitiveni Rabuka was elected prime minister. Bainimarama conceded defeat.
On the surface, little about this scenario seems out of the ordinary for a country with a parliamentary system of government. For Fiji, however, the 2022 elections and their aftermath were historic. Since it became a republic in 1970, most changes of government in Fiji have occurred via coup.
There were immediate concerns within Fiji and overseas about the vulnerability of a coalition government to a coup, fuelled in large part by new electoral laws introduced in 2021 designed to keep FijiFirst in power and Bainimarama’s reluctance to concede defeat. Now, however, Fijian officials, business leaders, citizens, foreign diplomats, and observers are cautiously optimistic that Rabuka’s coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji’s democratic institutions.
An ambitious agenda
The coalition government has hit the ground running. Rabuka, the leader of the 1987 coup, promised in his inauguration speech that he is a leader for all Fijians, noting that regardless of ethnic or cultural identity, “we all belong here.” The new government is working hard to weed out corruption, increase transparency, and ensure political appointees and community leaders are chosen on merit rather than their connections to elected officials.
People who were deported, threatened, or forced to leave Fiji for speaking out against the previous government are being granted permission to return, and they are doing so. The coalition is eager to mend ties with the University of the South Pacific, whose largest campus is located in Suva and to which the Fijian government owes FJ$74 million. The return of Vice-Chancellor Pal Ahluwalia to Fiji was widely celebrated, as was the return of Padma Lal with her exiled husband Professor Brij Lal’s ashes.
There are also plans to reinstate the Great Council of Chiefs, a group of Indigenous Fijian representatives that serve as advisors to the government on matters affecting Fiji’s iTaukei (Indigenous) population. Rabuka was a life member of the council until it was disbanded in 2012. Reactions to its reinstatement are mixed. On the one hand, a new Great Council of Chiefs could provide critical advice on how legislation will specifically affect the iTaukei population, in much the same way that a Voice to Parliament is expected to do in Australia. On the other hand, the Great Council of Chiefs was established in the British colonial era and is mired in colonial legacy.
As China increasingly makes its presence felt in the Pacific, Rabuka has positioned himself as a proponent of solidarity among the Pacific Island states. His first overseas trip as prime minister was to Kiribati to conclude the negotiations to bring the last remaining holdout from the Micronesian bloc back into the Pacific Islands Forum after the 2021 consternation. Rabuka also cancelled an arrangement with the Chinese police, which many Western observers considered a clear signal of Fiji’s alignment with traditional partners. The reality is more moderate, as Chinese investors and development agencies have a robust presence in Fiji’s economy. Rabuka has clearly expressed a desire to work more closely with traditional partners, including Australia and the UK, without positioning Fiji as explicitly “anti-China.”
Moving forward
A major test of the new government’s effectiveness will be delivering on its election promise to hold local elections. Tentatively scheduled for late 2023, these will be the first local elections since FijiFirst abolished the mayoral system and installed town representatives 16 years ago. Bringing the elections to fruition will be a major accomplishment for the coalition and a clear signal of democratic progress.
Constitutional reform is also sorely needed after 16 years of autocratic creep, limiting freedoms, and centralising political control. There is much speculation and discussion about what could, should, and eventually would end up in a new constitution, as well as whether a new constitution is needed at all. Fiji has seen as many constitutions as coups in the past several decades. Under the present constitution, the military can intervene in government affairs whenever it wants under its mandate to look after the wellbeing of the Fijian people. While Major-General Jone Kalouniwai stated before the election that the military would respect the results, and this has been heeded to date, the spectre of future military intervention looms large.
While there is much to celebrate about the new government’s actions so far and plans for the future, greater emphasis needs to be placed on promoting diversity in politics and women’s participation in elections. The proportion of women members of Parliament has halved, with women now accounting for less than ten percent of members. While there are strong initiatives in place to involve women and marginalised people in politics, structural elements in Fiji’s electoral system create barriers to their election. In addition, the 2021 electoral reforms required voters to register using their birth names, which disenfranchised a significant number of women who assumed their spouse’s name upon marriage.
It will be interesting to see whether the forthcoming local elections mirror the national elections in terms of diversity, or whether we will see more women and other historically marginalised people assume leadership positions. Looking ahead to the 2026 elections and beyond, the coalition’s democratic reforms should include the implementation of gender-inclusive electoral policies.
As Fiji continues opening up to the post-COVID-19 world and the Rabuka coalition government settles into its authority, the future appears bright for Fijians. It is now the responsibility of policymakers to deliver on their promises and ensure they continue to conscientiously listen to the concerns of the Fijian public.²⁵
A 28 February 2023 article in The Diplomat states:
Despite only having won by the slimmest of margins and with the “People’s Coalition Government,” as Rabuka’s government calls itself, being delicately held together despite long histories of personal and political animus, the new government wasted no time in systematically dismantling Bainimarama’s extensive power base. Multiple key public service appointments made by Bainimarama’s government were overturned in rapid succession (“resign or be removed” was the ultimatum issued by the new government),and investigations were launched into leading figures of Bainimarama’s government, including his former deputy who effectively ruled Fiji with him for 16 years, Aiyaz Sayed Khaiyum. Sayed Khaiyum’s place in the new parliament was also jeopardized when he violated constitutional rules of his own making.
The pace of the political reckoning in the first two weeks of 2023 prompted the commander of the RFMF, Major General Jone Kalouniwai, to issue a troubling statement. Kalouniwai reminded the new government of the RFMF’s constitutional obligation to ensure the “well-being” of all Fijians. Kalouniwai was rebuked, and although he publicly demonstrated loyalty to the new government, his comment still shadows events given Fiji’s history of coups (there have been four coups since 1987). However, what has transpired since indicates that Kalouniwai has decided not to go down that disastrous route.²⁶
The Australian Strategic Policy Institute (ASPI) provided the following analysis on 8 February 2023:
It’s been just over a month and a half since Fiji’s new coalition government, headed by former coup leader Sitiveni Rabuka, was sworn in to parliament. The December election was a tight race, as many had predicted, and Rabuka’s former party, the Social Democratic Liberal Party (SODELPA), was dubbed ‘kingmaker’ when its eventual support for Rabuka ended Frank Bainimarama’s 16-year premiership. Australia’s relationship with the new government appears to be positive, but we must ensure our support continues to be Fiji-focused regardless of who’s leading the country.
Rabuka and his coalition have hit the ground running, making sweeping changes that have caused a few tense moments. He is loosening a restrictive media act, and Fiji Broadcasting Corporation CEO Riyaz Sayed-Khaiyum (a brother of former attorney-general Aiyaz Sayed-Khaiyum) has been removed. The government has welcomed back exiled officials and is reviewing diplomatic appointments to ensure they represent the needs of the government. Rabuka has also set up the Mercy Commission, which was written into the 2013 constitution but never convened, to review the cases of those who have been incarcerated for a very long time. That process may lead to the release from prison of yet another coup instigator, George Speight.
Some are concerned that in moving so quickly the coalition may leave itself open to having its changes invalidated if the correct legal processes aren’t followed. Others believe that the new government is going too far too fast. The commander of the Republic of Fiji Military Forces, Major General Jone Kalouniwai, publicly outlined his concerns with the new government, citing his responsibility to do so given the military’s self-proclaimed role as ‘guardian’ under the Fijian constitution.
After 16 years of one government, there’s little cabinet experience in the coalition. Rabuka has admitted that some mistakes will be made—or, as Home Affairs Minister Pio Tikoduadua said after a damage[1]control meeting with Kalouniwai, ‘We are all learning.’ It was a moment of tension, but Rabuka and Tikoduadua settled the simmering pot before it boiled over. With many campaign promises still to be delivered, however, there could still be more sticking points to come.
As would be expected, the opposition—namely, Bainimarama and his right-hand man Aiyaz Sayed-Khaiyum—wasted no time in ridiculing the government’s every move. Bainimarama could seize power through a motion of no confidence, so Rabuka will have to ensure he keeps SODELPA onside after initially rewarding the party with key ministries and positions. But Bainimarama’s absence hasn’t necessarily left the gaping hole that it could have. In fact, Rabuka has returned to power relatively seamlessly after 23 years.
…
Looking further out in the region, last week Rabuka announced that he will terminate the memorandum of understanding between the Fiji Police Force and China’s Ministry of Public Security that has been in place since 2011. He explained that there was no need for the policing relationship to continue because the two countries’ ‘systems of democracy and justice systems are different’. In the meantime, both Rabuka and Tikoduadua have expressed a desire to deepen Fiji’s relationship with Australia, New Zealand and the US based on their having similar systems.
At the same time, police commissioner Sitiveni Qiliho was suspended from his role, as was the commissioner of corrections, Francis Kean. Both have strong ties to Bainimarama—Kean is the former PM’s brother-in-law—and questionable backgrounds to say the least. China’s policing assistance in the Pacific, which Qiliho was closely involved with for the past six years, has vastly more authoritarian characteristics than that of Australia or New Zealand. The decisions to remove the two commissioners and tear up the agreement with China were partly to demonstrate this change to a domestic audience and partly to send a clear signal to foreign partners about where Fiji’s values lie, and that aid and assistance must align with those values.
It’s a welcome statement for Australia and New Zealand, which are also seeking to highlight the values shared among all countries in the Pacific neighbourhood. In a joint visit to Fiji this week by the Australian and New Zealand defence chiefs, New Zealand’s CDF, Air Marshal Kevin Short, reiterated the importance of respecting Fiji’s values and ways of operating. Australia will now need to ensure that the new Fijian government is not left unable to fill any capability gaps that might arise in the Fiji Police Force.
Even though the policing agreement has been terminated, China is unlikely to turn away from Fiji. Instead, Beijing will probably continue to aggressively pursue friendship and look for other areas to deepen the relationship with the new government. Even Tikoduadua’s decision to meet with Taipei before Beijing won’t halt the Chinese Communist Party’s advances. Rabuka’s government will have to find a way to hold to its values without sacrificing a large economic partner.
…
As Rabuka’s coalition powers ahead, intent on moving past the policies of the previous government, there remains a risk of discontent if the population feels left behind. Australia must remain focused on supporting Fiji as a whole, and find a delicate balance between supporting the democratising instincts of the new government and not sullying the record of the previous prime minister, with whom we built a close partnership, and who might return.²⁷
A 15 March 2023 World Socialist Web Site (WSWS) article reports on the power struggle between the new and former prime ministers:
The installation of the new government has seen an ongoing power struggle between Bainimarama and Prime Minister Sitiveni Rabuka, another former military coup leader, and the contesting factions of the divided ruling elite that back them. Rabuka heads a fragile three-party coalition including his People’s Alliance Party, the National Federation Party and the Social Democratic Liberal Party (SODELPA)—a minority party holding the balance of power with just three MPs.
The swirling political crisis escalated in January when the military head Major General Jone Kalouniwai released an extraordinary media statement declaring that the armed forces had “quietly observed with growing concern… the ambition and speed of the government,” claiming it had “the potential to bring about fateful, long-term national security consequences.” Under Section 131 of the 2013 Constitution, drawn up by Bainimarama, the military has unrestrained powers to ensure the “safety and security of the country”.
Two weeks after his suspension, Bainimarama last Wednesday abruptly announced his resignation from parliament “with immediate effect” but vowed to remain leader of his FijiFirst Party. He denounced his “unwarranted and most certainly unjustified” suspension and declared he would “engage more actively outside parliament with our FijiFirst supporters and the growing number of unsatisfied Fijians” disillusioned with the government. Rabuka has quickly moved to replace key personnel in the civil service seen as Bainimarama’s political appointees. These include Qiliho, a former military officer with connections to previous coups, and corrections services boss Francis Kean. Both ran infamously brutal and corrupt operations under Bainimarama.²⁸
The article further states:
Rabuka however, has no less of an authoritarian history than Bainimarama. He ruled as prime minister from 1992 to 1999 after leading two military coups in 1987 to boost the position of ethnic Fijians against Indo-Fijians, many of whom fled the country.
Rabuka is now reviving contentious communalist politics, aimed at cementing the position of the ethnic iTaukei Fijian elite at the expense of Indo-Fijians and the working class, including the re-establishment of the privileged Great Council of Chiefs. That body was shut down in 2012 by Bainimarama, who accused it of exacerbating racial divisions “to the detriment of Fiji’s pursuit of a common and equal citizenry.”
Rabuka’s positioning is a response to fears within the ruling elite of simmering anger in the working class. Fiji’s workers are suffering skyrocketing inflation, the destruction of thousands of jobs, and fractured supply chains for food, energy and basic goods. The poverty rate is nearly 30 percent and the social catastrophe has been exacerbated by the ongoing COVID-19 pandemic. As they are internationally, more austerity measures are on the way.
Should Rabuka’s strategy fail to contain widespread social struggles, the army still stands waiting in the wings.²
CONSIDERATION OF CLAIMS AND EVIDENCE

In considering the claims and evidence, the Tribunal has taken account of:
14.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
14.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
14.3.The country information set out in this decision record.
The Tribunal considers the primary applicant and his wife truthful and genuine in their observations and accounts of their experiences of Fiji, and their reasons for leaving Fiji and wishing to establish a life in Australia.
The Tribunal notes the primary applicant’s written claims and supporting material relate to his observations and experiences of Fiji during a period prior to the change of government in December 2022.
The Tribunal acknowledges the concerns and fears expressed by the primary applicant in his written claims and supporting material about the conduct of the former government and military police, the treatment of indigenous Fijians, the erosion of freedom of speech and other democratic rights and values, the safety of his family, and the adverse emotional and psychological impact life in Fiji has had on the primary applicant and primary applicant’s wife.
The Tribunal notes the primary applicant’s oral evidence about his father’s experience as [Authority 1] and the years following as [an occupation 1] under the former government, and acknowledges the primary applicant’s concern for his father during that time.
The Tribunal notes the primary applicant’s oral evidence that he didn’t experience any problems in Fiji apart from living through the upheaval of the coups.
The Tribunal notes the wife’s oral evidence of growing up in Fiji not being free to speak against the former government and indigenous livelihoods reliant on fishing local waters being threatened by the passage of the land bill. The Tribunal further notes the wife’s oral evidence that she was not involved in any anti-government activities in Fiji and she did not experience any problems with Fiji police.
The Tribunal notes that after first coming to Australia in February 2000, and last arriving in Australia in July 2018, the primary applicant returned to Fiji on 12 occasions, 10 of those occasions being after the former government was installed in 2006, including [on] occasions with his wife, for the birth of [their first] children.
The Tribunal does not consider there is any evidence to suggest that the primary applicant or his wife experienced harm while living in Fiji targeted at them for convention reasons or any other reason. The Tribunal considers that their willingness to return to Fiji on multiple occasions, including for the birth of their children, lends support to this conclusion.
The Tribunal notes the country information covering the political situation in Fiji since the change of government in December 2022.
The Tribunal notes there is mixed commentary about whether the new government will restore democratic rights and values in Fiji and that it is an evolving situation, however there are some early positive signs.
The Tribunal notes the oral evidence of the primary applicant and the pastor accords with the country information, while expressing their uncertainty about the future.
The Tribunal considers the appointment of the primary applicant’s father as [Position 1] of the [Authority 2] in Fiji indicative of the father’s confidence in the new government.
The Tribunal accepts that when the primary applicant and his wife last came to Australia with their first [children] and applied for protection in July 2018 they believed the (then) escalating political situation in Fiji did not provide the safety, stability and economic security they wanted for their children and family, and they feared returning to Fiji for that reason.
The Tribunal accepts the primary applicant and his wife still fear returning to Fiji for that reason as, despite the change in government and some early positive signs, the political situation remains uncertain.
The Tribunal does not consider the fear described amounts to a fear of serious harm and systematic and discriminatory conduct by reason of race, religion, nationality, membership of a particular social group or political opinion, or that there is any evidence to support a real or substantial chance of the primary applicant or his wife being subjected to such harm and conduct in Fiji in the foreseeable future.
The Tribunal does not consider there is any evidence to establish substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant and his wife’s removal, they will suffer significant harm in Fiji.
The Tribunal considers the evidence of the employer, work colleague and pastor truthful and genuine.
The Tribunal accepts that the long-term political instability and lack of safety and economic security in Fiji under the former government, the current uncertainty under the new government, and his father’s experiences are the cause of ongoing emotional and psychological stress to the primary applicant.
Application of law
The issue in this case is whether the primary applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
34.1.The primary applicant is a citizen of Fiji and non-citizen in Australia.
34.2.The wife and other applicants are citizens of Fiji and non-citizens in Australia, and members of the same family unit as the primary applicant.
34.3.The primary applicant’s and wife’s claims for protection do not satisfy the refugee or complementary protection criterion set out in the applicable law.
CONSIDERATION OF REFERRAL FOR MINISTERIAL INTERVENTION
The Tribunal considers that the circumstances of this case are sufficiently unique or exceptional to warrant a referral to the Minister for possible consideration of the use of the Minister’s intervention powers, according the criteria set out in the Minister’s guidelines on ministerial powers (ss 351, 417 and 501J of the Act).
The Tribunal notes that:
36.1.Since first coming to Australia in 2000 to [study for] post-graduate qualifications in [subject 1], the primary applicant has lived nearly 17 of the subsequent 23 years in Australia.
36.2.The primary applicant’s children, aged [respective ages] years have spent a significant part of their lives in Australia; and their [age] child has never left Australia.
36.3.The primary applicant and his wife have had stable employment in Australia and the full support and endorsement of their employer for many years.
36.4.The primary applicant and his wife have been and remain lawful non-citizens in Australia for many years.
36.5.There is no evidence before the Tribunal to indicate that the primary applicant or his wife would do other than cooperate in ensuring their travel documents are available and valid, and continue to cooperate with the Department and assist with any enquiries.
The Tribunal considers that there are circumstances that bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the four children.
The Tribunal considers it is likely to be in the best interests of the [children] for the family to remain in Australia after establishing a significant connection here over many years, building a life, securing long-term employment, attending school, and making ties with their community.
The Tribunal considers compassionate circumstances exist regarding the emotional and psychological state of the primary applicant, particularly in relation to the unique experiences of his father in Fiji, that if not recognised would result continuing hardship to the primary applicant.
CONCLUSIONS
The Tribunal is not satisfied that the primary applicant or his wife is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the primary applicant and his wife do not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the primary applicant or his wife is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Having concluded that the primary applicant and his wife do not satisfy the criteria in s 36(2)(a) or (aa) of the Act, accordingly, the primary applicant, his wife and other applicants do not satisfy the criterion in s 36(2)(b) or (c) of the Act.
There is no evidence before the Tribunal that suggests that any of the applicants satisfy s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
Having regard to the Minister’s guidelines, the Tribunal considers that there are valid unique or exceptional circumstances warranting referral of the applicants’ case to the Department for consideration by the Minister pursuant to s 417 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.
ATTACHMENT B
Footnotes to country information
1 'Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023, 20230619092820 ; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for International Policy), 14 February 2023
2 'Fiji - In brief', Economist Intelligence Unit, n.d.
3 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023
4 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023; 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023
5 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023
6 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023; 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023
7 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023
8 'Fijian women's rights activists welcome suspension of police chief, prison boss', Australian Broadcasting Corporation (ABC): Pacific Beat, 30 January 2023
9 'Fiji's top prosecutor suspended for alleged misconduct', Radio New Zealand (RNZ), 14 April 2023
10 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023. And 'Fiji's former prime minister Frank Bainimarama thrown out of parliament, suspended for three years after divisive speech', Australian Broadcasting Corporation (ABC) (News), 17 February 2023; 'Fiji opposition leader suspended from parliament for sedition', Guardian (Unlimited) (UK), 17 February 2023
11 'Fiji's former prime minister Frank Bainimarama resigns from parliament, will not quit politics', Australian Broadcasting Corporation (ABC) (News), 08 March 2023
12 'Fiji's former prime minister Frank Bainimarama charged with abuse of office, to spend the night in custody', ABC News (Australia), 09 March 2023
13 'Fiji’s former leader Frank Bainimarama released on bail', Associated Press (AP), 10 March 2023; 'Fiji's Bainimarama granted bail, ordered to remain in country', Radio New Zealand (RNZ), 10 March 2023
14 'Trial date set for ex-Fiji PM Bainimarama and suspended police chief Qiliho', Radio New Zealand (RNZ), 11 May 2023
15 'Fiji's former attorney-general released on bail', Radio New Zealand (RNZ), 02 May 2023, 20230619100309
16 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023; 'FijiFirst angry over suspension by Acting Registrar of Political Parties', Radio New Zealand (RNZ), 19 May 2023; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023
17 'FijiFirst party complies with Act', Fiji Times, The, 10 June 2023
18 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
19 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023; 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023; 'Rapid changes in Fiji require a delicate balance of support', Australian Strategic Policy Institute, 08 February 2023
20 'The number behind Fiji’s coup culture', Australian Strategic Policy Institute, 01 February 2023
21 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
22 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023
23 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
24 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023
25 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023
26 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023
27 'Rapid changes in Fiji require a delicate balance of support', Australian Strategic Policy Institute, 08 February 2023
28 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023
29 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023

[2023] AATA 3411

24 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies