1929564 (Refugee)

[2024] AATA 1405

1929564 (Refugee) [2024] AATA 1405 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry

CASE NUMBER:  1929564

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Patricia Tyson

DATE:2 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 02 April 2024 at 11:03am

CATCHWORDS

REFUGEE – protection visa – Fiji – race – indigenous Fijian – political opinion – opposition to the current government – prison officer – political instability – employment – access to healthcare – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
SZRSN v MIAC [2013] FCA 751

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW

2. The applicants, who claim to be citizens of Fiji, are a married couple – [Applicants 1 and 2] –  and their [age] year old son who, although an adult, I will refer to as [Applicant 3] to distinguish him from his father. According to information in their visa application, the applicants arrived in Australia in late 2018 and applied for protection visas on 10 January 2019. Prior to this, they had travelled to Australia in July 2018 for several weeks for a church conference.

3. In their visa application, the applicants claimed to fear harm in Fiji because of [Applicant 1’s] previous work as a prison officer, his political views and their indigenous Fijian ethnicity. Referring to country information about the situation in Fiji, the delegate refused to grant their visas. The delegate found there was not a real chance of [Applicant 1] being seriously harmed on the basis of his political opinion or as an indigenous Fijian. Nor was the delegate satisfied there was a real risk he would suffer significant harm. 

   CLAIMS AND EVIDENCE

   Evidence before the Department

4. In a statement attached to the protection visa application, [Applicant 1] made claims to be afraid for his life, safety and the safety of his family in Fiji. The claims can be summarised as follows:

   ·The applicants left Fiji because they felt unsafe. The current government had been a threat to their family and [Applicant 1] did not want the family to suffer.

   ·In Australia [Applicant 1] has a lot of rights and can speak openly and voice his opinion. He had felt suppressed in Fiji and his human rights were restricted. He cannot fight for his rights in Fiji because the unions do not have a voice. He had to follow directives from the top and could not ask questions. He is deprived of his freedom of speech and cannot criticise the government because it will result in his being arrested and taken to task by the special joint force of the Police and Military. People are taken to court and charged for talking against the government. He cannot seek assistance because the authority would know. [Applicant 1] criticises the government and speaks freely in Australia. He is very vocal and is able to challenge the Fiji government and its policies.

   ·[Applicant 1] had been medically recommended not to do physical exercise and training. He presented medical certificates to his employers at the Prison Force, but they forced him into doing exercises. He was injured while at work. It negatively affected his health and made him psychologically refuse the government and leadership. He was mistreated during work but was not able to lodge a complaint out of fear he would lose his job.

   ·In Fiji [Applicant 1] was aggressive, angry and depressed. His health was suffering. He feels depressed looking at how the government works as some leaders have no consideration of the people, and know they can abuse their status and get away with it.

   ·[Applicant 1’s] rights as an indigenous person (iTaukei) have been deprived and supressed. He does not want his son to suffer as it will have negative impacts on his future. The situation in Fiji is not safe for his son and family. The village protocol and traditional values have been taken away. [Applicant 1] cannot stand seeing the psychological effect it has on the family elders who he looks to for moral and traditional training. This has made him depressed, psychologically stressed and aggressive.

   ·[Applicant 1] cannot move to another part of the country because it is the government that is a threat. If he moves to his village it could implicate the whole village and he would be seen as making trouble. He does not want the village to suffer and be stigmatized.

5. With the visa application, the applicants submitted copies of [Applicant 1 and 2’s] marriage certificate, the birth certificates of [Applicant 1] and [Applicant 3], and the biodata pages of each of their passports.

6. The applicants were not invited to attend an interview with the Department of Home Affairs in relation to their claims for protection.

   Evidence before the Tribunal

7. The applicants appointed a lawyer to act on their behalf in October 2023 and were represented in relation to the review.

8. The applicants were initially invited to attend a hearing on 13 February 2024. That hearing was postponed at the applicants’ request, as [Applicant 1] presented a medical certificate indicating he was unwell. The hearing was rescheduled and the applicants appeared before the Tribunal on 1 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the partner of [Applicant 3]. The applicants’ representative attended the hearing via Microsoft Teams.

9. At the hearing, the applicants expanded on their written claims regarding [Applicant 1’s] past employment and raised further claims in relation to: [Applicant 1’s] views about [Manager A], the Fijian government, ethnic divisions in Fiji and the cause of the problems experienced by indigenous Fijians; the applicants’ fears regarding the economic situation in Fiji and their ability to obtain employment and adequate healthcare; and the situation of [Applicant 3] and his partner, who is pregnant.

10. The applicants submitted a number of letters at the hearing. These include a letter from [Mr A], a former Personal Staff Officer to former [Manager A]. [Mr A] refers to having observed first hand the mistreatment, mental abuse torture and verbal threats inflicted upon [Applicant 1] by [Manager A], resulting in an unstable financial situation and psychological trauma for him and his family.

11. The other letters are character and work references from [the employers of Applicants 1 and 2]. [Applicant 1] works as [an occupation 1] at [Agency 1] and [Applicant 2] works in an [agency 2]. It is clear that the applicants are highly regarded and valued employees and that their employers support their wish to remain in Australia.

12. At the end of the hearing the applicants’ representative requested, and was given, two weeks in which to provide a written submission. However, nothing further has been received.

    CRITERIA FOR A PROTECTION VISA

13. 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 in s.36(2)(a), or on other ‘complementary protection’ grounds under s.36(2)(aa), or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

14. The Act provides that, relevantly, a person is a refugee if 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. 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.

15. ‘Persecution’ involves serious harm to the person. Section 5J(5) provides that the following are instances of serious harm: (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. These ‘instances’ are not exhaustive, but are illustrative of what might amount to serious harm. The Act also contains further additional requirements and qualifications relating to a ‘well-founded fear of persecution’.

16. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the complementary protection 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. The Federal Court has held that ‘real risk’ in s 36(2)(aa) imposes the same standard as the ‘real chance’ test for the purpose of s 36(2)(a).[1]

    [1] MIAC v SZQRB (2013) 210 FCR 505.

17. ‘Significant harm’ is exhaustively defined by s 36(2A) to include arbitrary deprivation of life, the death penalty being carried out, or being subjected to torture, cruel or inhuman treatment or punishment or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. Treatment that would meet these definitions involves an act or omission that intentionally inflicts ‘severe’ physical or mental pain or suffering, an act or omission that could reasonably be regarded as cruel or inhuman in nature that intentionally inflicts pain or suffering, or an act or omission that intentionally causes extreme humiliation which is unreasonable. The Act sets out circumstances in which a person will be taken not to face a real risk of significant harm.

18. The criteria for a protection visa and related definitions and qualifications are set out in detail in the attachment to this decision.

19. In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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, to the extent they are relevant to this decision.

    FINDINGS AND REASONS

20. The issue in this case is whether there is a real chance of the applicants experiencing harm that would amount to persecution in the reasonably foreseeable future, or a real risk of them experiencing harm that would amount to significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

21. The applicants have submitted copies of their Fijian passports and I accept that they are nationals of Fiji. There is nothing before me to suggest that the applicants have a right to enter and reside in any other country, and I find that s 36(3) of the Act does not apply.

22. At the hearing, the applicants gave frank and unexaggerated evidence. I found them to be truthful and reliable witnesses and have no concerns regarding their credibility. There are some variations between the evidence at hearing and the written claims, which seem to have perhaps been slightly embellished in parts. [Applicant 1] explained at the hearing that they were assisted in preparing the written statement by a friend. Where there are differences, I prefer the applicants’ evidence at the hearing over the written statement.

23. To give context to the applicants’ claims and political views, country information indicates that Fiji has a history of political unrest and coups. Prior to elections in December 2022, Prime Minister Voreqe (Frank) Bainimarama had governed for 16 years. In those elections, despite winning the popular vote, his FijiFirst party won only 26 seats, two short of the 28 required to form government. Now Prime Minister Sitiveni Rabuka of the People's Alliance formed government with a three party coalition that includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party.[2] Rabuka had previously instigated coups in 1987 and served as Prime Minister between 1992 and 1999.[3]

    [2] Economist Intelligence Unit,  'Fiji - In brief', Accessed 19 June 2023, 20230619093756; The Interpreter (Lowy Institute for International Policy), Fiji’s new politics', 17 January 2023, 20230619092820; The Interpreter (Lowy Institute for International Policy), 'Fiji: A chance to stop political history repeating', 14 February 2023, 20230317105123; Australian Institute of International Affairs, Cautious Optimism for Fiji’s Coalition Government', 8 March 2023, 20230619104244; The Guardian, ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, 18 December 2022, 20221229084208.

    [3] Department of Foreign Affairs and Trade (DFAT), Country Information Report Fiji', 20 May 2022.

24. Race has historically been an important factor in Fijian society and politics. The two main ethnic groups in Fiji are the iTaukei (indigenous Fijians) and Indo-Fijians. FijiFirst has a multi-ethnic platform and is popular among Indo-Fijians, whereas SODELPA largely draws support from iTaukei.[4] The Department of Foreign Affairs and Trade (DFAT) reported in 2022, prior to the election, that some iTaukei had felt a sense of economic or political marginalisation and that iTaukei are more likely to experience poverty than Indo-Fijians, although there are rich and poor among both groups.[5] Since coming to power, the Rabuka government has revived the chiefly political body, the Great Council of Chiefs, which had been disbanded by former Prime Minister Bainimarama following the 2006 coup on accusations that it interfered in politics and incited racial tension.[6]

    [Applicant 1’s] experiences while working as a prison officer

    [4] DFAT, Country Information Report Fiji', 20 May 2022.

    [5] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

    [6] ABC News, ‘Fiji's Great Council of Chiefs reconvenes after 16 years, promises racial equality’, 24 May 2023, 20230712113848.

25. The applicants have given evidence about the difficult experiences faced by [Applicant 1] and the family during his employment as a prison officer. According to both their oral evidence and written claims, he held this employment for around [number range] years and worked in a [type] prison. [Applicant 2] gave a vivid account of their experiences during a coup in 2000 when prisoners took over the prison and held the guards, including [Applicant 1], hostage. He suffered an injury that required [time] off work yet was not rewarded for bravery as others were. She spoke of the impact of this event on the both of them. I accept that this was undoubtedly a terrifying and traumatic experience for the applicants.

26. [Applicant 1] has claimed he was treated poorly by management during his service as a prison guard. In his written claims, he refers to being required to do exercises despite have a medical certificate recommending that he not complete physical exercises and training, which negatively impacted his health. He expanded on these claims at the hearing, saying prison guards were required to do physical exercises and not given time off. [Applicant 1] gave evidence that conditions at work were particularly bad after [Manager A] took over. He could not complain out of fear of losing his job. Asked about the references to prison offences in [Mr Officer A’s] letter, [Applicant 1] explained that when he failed required fitness level tests, he would be charged with prison offences which involved his pay being deducted. He said this happened a number of times due to health issues. He also claimed that he would be charged with offences if he argued with a senior officer over something that happened in prison. He said he was never promoted because he argued with senior officers. [Applicant 1] said there were no further problems for him because of these charges after he left the prison service. [Applicant 2] gave corroborative evidence about her husband’s experiences at work.

27. [Applicant 1] said that he ultimately resigned from his prison guard position [some time] before he reached retirement age. He felt unable to remain in the position any longer because of the way he was being treated and the impact on his health. He was aware of [some] of his colleagues dying while employed there, suffering [medical conditions] due to the pressure and stress despite their relatively young age.

28. I accept the evidence about [Applicant 1’s] experiences while working as a prison officer. However, his employment there ended prior to his departure from Fiji, there were no further consequences for him after that time, and he has expressed no intention to return to that employment. I am not satisfied on the evidence that there is a real chance or risk that he, or the other applicants, will suffer harm in the future in relation to his former work as a prison officer.

    Expression of views

29. Discussing his political views at the hearing, [Applicant 1] referred to having been in [Country 1] in 1987, while a coup was taking place in Fiji. At that time he was one of only a few Indigenous Fijians to protest along with Indian Fijians. He believes Indian Fijians were incorrectly blamed at that time for problems faced by Indigenous Fijians. He took part in a big march in [Country 1] then returned to Fiji, not realising he could have stayed and claimed asylum. Returning to Fiji, he recognised the truth of the news and discussions in [Country 1] about the corruption, abuse of office and misuse of funds taking place in Fiji, compared to news of these things being hidden in Fiji.

30. [Applicant 1] expressed nuanced and considered views about the situation in Fiji and particularly the ethnic divisions. Despite being an Indigenous Fijian, he does not agree with the reinstatement of the Great Council of Chiefs and believes that this causes fighting and is used to harass other ethnic groups. He said that in the past the Chiefs had intervened in parliamentary decisions, which he disagrees with. He expressed the view that culture holds Indigenous Fijians back. He gave a detailed account of why, based on historical factors, he opposes Fijian culture being given greater importance in Fiji. [Applicant 1] raised concerns that under the new government, with the return of the Great Council of Chiefs, Fiji would return to the way it had been previously with the Council intervening in parliament, people being dictated to and corruption being swept under the carpet. He said he did not want to live under that kind of leadership.

31. [Applicant 1] said that he worries that if there is a future change of government in the next election and the Council of Chiefs is abrogated, there will be further unrest. He described the former Bainimarama government as protecting everybody, but thought the current government may not be making sure all people were safe, referring specifically to the Indian community. He suggested that although many Fijian Indians had supported the current government, they may return to Bainimarama. He said [Manager A] [details deleted] may be in charge again if there was a change of government. [Applicant 1] does not want his son to go through coups and hard times.

1. [Applicant 1] spoke passionately about believing in the rule of law, which he perceives to exist in Australia but not Fiji. He believes leaders in Fiji, including current Prime Minister Rabuka present themselves as good Christians but are not, and can be very racist. He fears there will be further fighting and coups in Fiji.

2. [Applicant 1] gave clear evidence that he had never been involved in any political groups or activity in Fiji or in Australia. He attributed this to his [Christian] beliefs which he says do not allow him to go against authority. When I asked [Applicant 1] about the written claims which refer to him being vocal in Australia, challenging the Fijian government and policies and criticising the government and speaking freely, he said that was correct but that he did not go and fight or protest. Rather, he could say what was on his mind. I asked how he would express his views in Fiji, and he said that his father had been a [leader] and that he now had capacity [in a similar role], but had written to his brother to do this work in his absence. [Applicant 1] said that if he went back he could go to his province and voice some of the things he had learnt in Australia. However, he then said he did not think he would do so, that at his age he did not think there was sense trying to commit to those things, that he might die early if stressed on those things.

3. He did however express some fear of how he might be treated by other Indigenous Fijians if he vocalised his views. He said that Fijian people can be dangerous and he feared they would oppose him and accuse him of being against the culture if he expressed his views, which could lead to him being harmed. I asked if he had been harmed in the past for expressing his views and he said he knew how to be smart in the way he dealt with people and expressed his opinion. While they would do something to someone who talked against the culture, he would not go to the length that would provoke and cause them to harm him.

4. [Applicant 1] also said at the hearing that although [Manager A] is no longer in that position, he fears if there is a change of government he may return. He and other former prison officers in Australia who have been condemning [Manager A] feared problems. I asked [Applicant 1] what he meant when he referred to condemning and criticising [Manager A] and he said that among friends they would say [Manager A] should be sacked from his job because of what he had done to them. [Applicant 2] said she feared that as people know they are in Australia, people may think they had voiced what happens in Fiji, which she clarified to mean what they said about the previous government. However, consistently with her husband’s evidence she confirmed that neither she nor her other family members had voiced things about the previous government and clarified that they had not said things in public or on social media, but had said things about the previous government and [Manager A] among themselves.

5. At the hearing, I discussed information about the current political situation in Fiji. As set out above, there has been a change of government since the applicants left Fiji and made their written claims for protection which included a fear of harm by the former government. While [Applicant 1] referred to fearing a risk of future coups or unrest, the transition of power has been peaceful and the military have not intervened.[7] The Rabuka government has taken some steps to facilitate the return of several critics of the former Bainimarama government to Fiji. In March 2023, the Australian Institute of International Affairs stated that people who were deported, threatened or forced to leave Fiji for speaking out against the former FijiFirst government are being granted permission to return, and are doing so.[8] The military are unlikely to  hinder the day to day activities of most Fijians.[9] In a country information update in August 2023, DFAT indicated it was not aware of any credible reports of former Prime Minister Bainimarama, the military or those loyal to him or his party pursuing nationals who publicly opposed him or his party, nor of the new government harassing his supporters.[10]

   [7] East Asia Forum, ‘Can Fiji keep its democracy in 2023?’, 3 February 2023, 20230712114936; Australian Strategic Policy Institute, ‘The number behind Fiji’s coup culture’, 1 February 2023, 20230712115112.

   [8] Australian Institute of International Affairs, 'Cautious Optimism for Fiji’s Coalition Government', 8 March 2023, 20230619104244.

   [9] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

   [10] DFAT, ‘Fiji 20230621135833 - Country Information - Political Update', 2 August 2023, 20230803112036.

6. The current government leads by only a one seat majority, and recent commentary suggests that the current coalition is fragile.[11] Looking into the reasonably foreseeable future, it is possible that the country may see a further change of government in the coming years. However, as discussed at the hearing, the opposition FijiFirst has also suffered a number of setbacks and lost members of its leadership. Frank Bainimarama is currently not in parliament after being suspended for sedition. He was later acquitted of a criminal charge of perverting the cause of justice, but the case is currently under appeal. Other key figures from his government are also no longer in parliament.[12] It is difficult to predict who would have a majority in any future elections or what form any coalition may take. Even if there were a future change of government, it is by no means clear that it would take the same form as the previous FijiFirst government, or conduct its activities in the same way. Furthermore, information from DFAT indicates that even under the previous government, it tended to be high profile public figures, protest leaders or critics that were at risk of negative attention such as arrest or detention. Even in the case of people who went out and protested, it was more likely that the leaders would be charged rather than ordinary attendees.[13]   

   [11] Richard Herr, ‘Stress-testing Fijian democracy in 2024’, 5 February 2024.

   [12] Richard Herr, ‘Stress-testing Fijian democracy in 2024’, 5 February 2024.

   [13] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

7. I accept the applicants hold the views that they discussed including those relating to the former and current Fijian governments, [Manager A], ethnic divisions in Fiji and the role of Indigenous Fijian culture in politics. However, their evidence indicates that even in Australia their expression of these views is limited to conversations with people they know. They have not otherwise engaged in any sort of political activity or expression beyond [Applicant 1’s] protest activity in [Country 1] in 1987. I accept [Applicant 1’s] evidence that at times he chooses his words so as not to provoke others, particularly when discussing some Fijian cultural issues, but again this appears to be in the context of conversations with people he knows rather than any broader or more public expression. I accept that if the applicants were to return to Fiji, they would again engage in conversation with others about their views including, as [Applicant 1] said, speaking to people in his village about what he learnt in Australia which includes his belief in the rule of law. I am not satisfied that the applicants would engage in any political activity or expression beyond these type of conversations. I find on the evidence that the reason for this is their religious beliefs and lack of interest in other political activity, rather than a fear of harm. While of course it is not impossible that somebody that [Applicant 1] speaks to may take offence at his views and harm him, or that the applicants could be harmed as bystanders in future coups or political unrest, I find the prospect of those things occurring is remote and below a real chance or risk. Considering the country information set out above about both the current and previous governments, the applicants’ lack of any political profile and the nature of their political expression, I am not satisfied that there is a real chance or risk of any of the applicants suffering any harm in relation to their views.

   Indigenous Fijian ethnicity

8. In the written claims, [Applicant 1] has referred to his rights as an Indigenous person being suppressed, and the loss of traditional culture. The views he expressed at the hearing suggested a more nuanced perspective on ethnic divisions in Fiji and the role of traditional Fijian culture, but I have nonetheless considered the prospect of the applicants being harmed because of their Indigenous Fijian or iTaukei ethnicity. DFAT states that some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than Indo-Fijians, although there are rich and poor among both groups. However, as the majority ethnic group in Fiji, iTaukei enjoy significant economic, social and political capital. Much of the British-origin ‘native administration’ system was set up to protect Indigenous Fijian culture and is a form of positive discrimination.[14] DFAT assesses there is no official discrimination against Indigenous Fijians, although low-level societal discrimination affects Fijians of both major ethnic groups.[15] The applicants did not express disagreement with this assessment when it was raised at the hearing.

   [14] DFAT, ‘Country Information Report Fiji’, 27 September 2017; Ratuva, S and Lawson, S (eds), Australian National University, 'The People Have Spoken: The 2014 Elections in Fiji', 1 March 2016, CIS38A8012633; Fraenkel, J , ‘Fiji: The politics of conflict reduction’, Routledge, 2013, CIS25155; Lal, B V, 'Fiji Before the Storm: elections and the politics of development', Australian National University E Press, 2000, CIS8BEF434391

   [15] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

9. I accept that the applicants may experience some low-level societal discrimination on account of their Indigenous Fijian ethnicity, but I am not satisfied on the evidence that there is a real chance of them experiencing an extent of discrimination that would amount to serious harm. Nor am I satisfied there is a real risk of them suffering discrimination that would reach the level of pain, suffering or humiliation required to satisfy the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, or otherwise amount to significant harm as defined.

   Claims relating to health, economic and other circumstances in Fiji

10. [Applicant 1] raised claims more broadly about living in Fiji and the mental or psychological impact of living through repeated coups, the impact on employment and the general hardship it caused. The applicants made claims about the economic situation in Fiji. [Applicant 1] referred to the level of poverty in Fiji. He raised fears that he would not find employment in Fiji given his age - [specified] - and that he would not have any financial support. He referred to unemployment levels, crime increasing because of unemployment (as he had heard from a neighbour who had recently returned from Fiji), and to the leaders not caring about grassroots people. He also expressed concern for his son experiencing financial hardship.

11. At the hearing, I discussed country information with the applicants regarding the situation in Fiji. That information indicates that the Fijian economy has started to recover following the pandemic.[16] Most Fijians work in the informal sector, especially tourism, agriculture and aquaculture. In 2022 DFAT reported that while the official unemployment rate was relatively low, at 4.8%, youth unemployment was around triple this, at 14.8% in 2019.[17]  The World Bank reports that overall unemployment fell to 4.3% in 2022, although does not specify the youth unemployment rate.[18] A significant percentage of the population lives in poverty, although this is higher in rural areas compared to urban locations.[19]  However, the rate of extreme poverty is lower than might otherwise be expected due to subsistence farming and kin-based wealth redistribution.[20] There is some limited social welfare available in Fiji such as pensions for the disabled, children and the very poor. [21] Indigenous Fijians generally have large kinship networks which provide support when a family member is in need, even during times of high unemployment.[22]

    [16] DevPolicy Blog, ‘Fiji’s economy in an election year’, 5 July 2022, 20230712121615; The World Bank, ‘GDP Growth (annual %) – Fiji’, undated, accessed 9 June 2023, 20230712125041; The Borgen Project, ‘COVID-19’s impact on Fiji’, 26 March 2023, 20230712121717.

    [17] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

    [18] Fiji | Data (worldbank.org) Fiji Times, ‘400,000 living below poverty line, says Narube', 5 November 2023, 20231106122859; World Bank, ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’, 0230712122405.

    [20] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

    [21] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

    [22] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

12. [Applicant 2] raised concerns about medical treatment available in Fiji. She said that although she normally has mammograms in Fiji, they did not identify an issue which was picked up in Australia and for which she received treatment. She spoke appreciatively of the health services available to her here and expressed concern over the quality of services in Fiji.  [Applicant 1] gave evidence that despite the traumatic experiences he had during the prison service, he had not seen a psychiatrist. Although he suggested there was not psychiatric care in Fiji, he also indicated that he had not sought any sort of mental health treatment in Australia, and said that he believed their spiritual life cures most of the mental and psychological things that they went through. [Applicants 2 and 3] also confirmed they had not sought any mental health treatment in Australia.

13. DFAT indicates that most Fijians have access to free healthcare, including mental health care. The quality of healthcare is better in urban areas, which is where the applicants live.   Specialist healthcare is generally available, particularly in large hospitals.[23] In response to this information, [Applicant 2] said that the facilities and services in Fiji do not compare to those in Australia, and [Applicant 1] raised the issue that the medication available in Fiji comes from Asia rather than Australia.

    [23] DFAT, ‘Country Information Report Fiji’, 20 May 2022.

14. [Applicant 3] referred to not wanting to go through hardship in Fiji. He said they did not have much family support. He also referred to some issues with family members in Fiji relating to his parents having his grandmother’s house, but said the family had not really experienced any harm because of that.

15. At the hearing, I discussed with the applicants the requirements of ‘persecution’ and ‘significant harm’ and raised the issue that the harm they fear in Fiji may not meet those thresholds.

16. According to [Applicant 1’s] evidence at the hearing, after he left the prison service in 2017 the family received some financial assistance from his mother in law who had been [an occupation 2] and received a pension. Once he turned 55 he received a lump sum Provident Fund payment. [Applicants 1 and 2] have employment experience in Fiji and now in Australia. [Applicant 3] does not currently work or study, but has completed [grade] at high school. He said he is looking for work here but it is hard as a non-citizen. He does not think there would be much work he could do in Fiji without qualifications. [Applicant 1] said that the family still have a property in Fiji. As I raised with the applicants at the hearing, their financial situation in Fiji was such that they had been able to afford international travel to both Australia and, for [Applicant 1], [Country 2] in 2018.

17. I accept that the applicants may not have the standard of living and quality of life in Fiji that they do in Australia, including the political stability that they experience here. I also accept that they may not receive the quality of health care in Fiji that they do in Australia. However, while I take into account [the ages of Applicants 1 and 2] and [Applicant 3’s] lack of employment history and the youth unemployment rates, considering [Applicant 1 and Applicant 2’s] history of past employment in both Fiji and Australia and the available information about the family’s economic circumstances including that [Applicant 1] received a form of lump sum retirement payment, that they were able to afford international travel, and that they still have a home in Fiji, I do not accept that they would be unable to obtain some form of employment or that their financial circumstances would be dire.

18. Considering the applicants’ circumstances as a whole and in the context of the country information, I am not satisfied that there is a real chance of their situation in Fiji being such that their capacity to subsist would be threatened or that they would otherwise experience harm amounting to serious harm, including psychological harm, in the reasonably foreseeable future, including when considered together with the low-level societal discrimination I have accepted that they may experience on account of their ethnicity.

19. Further, I am not satisfied on the evidence that any economic difficulty, inability to access healthcare or other hardship that the applicants may experience as a result of the economic and political circumstances in Fiji would involve systematic and discriminatory conduct, as required by s.5J(4)(c).

20. I have also considered whether there is a real risk of the applicants experiencing economic difficulty, inability to access healthcare or other hardship to an extent that would meet the definition of ‘significant harm’ for s 36(2)(aa). I am not satisfied there is a real risk of them being arbitrarily deprived of their lives or subject to the death penalty. I am further not satisfied that there is a real risk of them experiencing treatment that would, individually or cumulatively, satisfy the requirements of the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, including when considered together with any societal discrimination they may experience. I am not satisfied any harm the applicants may experience would involve ‘severe’ physical or mental pain or suffering, an act or omission that could reasonably be regarded as cruel or inhuman in nature that intentionally inflicts pain or suffering, or extreme humiliation which is unreasonable. I am further not satisfied that any harm the applicants may experience as a result of the economic and other circumstances in Fiji would be intentionally inflicted as required by those definitions.

    [Applicant 3’s] relationship

21. The applicants and [Ms A] gave evidence that [Applicant 3] is in a relationship with [Ms A], who is an Australian citizen. She is living with the applicants. The couple have applied for a partner visa and [Ms A] is pregnant with their first child. The applicants and [Ms A] each spoke with emotion about the impact of their potential separation. The applicants expressed concern about [Ms A's] situation if they had to return to Fiji, as it appears she has a difficult relationship with her own family. Evidently, it would be very difficult for both the applicants and for [Ms A] if the applicants returned to Fiji and she (and the child) remained in Australia. As sympathetic as I am to their situation, I am not satisfied that this satisfies the criteria for the visa. It does not amount to a real chance of any of the applicants being persecuted for one of the reasons in s.5J(1)(a) and nor does this type of harm, which would result from the act of removing the applicants from Australia, satisfy the complementary protection criteria in s 36(2)(aa).[24]

    Conclusions

    [24] See SZRSN v MIAC [2013] FCA 751; GLD18 v MHA [2020] FCAFC 2.

1. Considering the applicants’ circumstances as a whole, I am not satisfied there is a real chance of any of the applicants suffering harm amounting to persecution in Fiji in the reasonably foreseeable future. None of the applicants have a well-founded fear of persecution within the meaning of s 5J.

2. I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).

3. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). Considering the circumstances as a whole, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that any of the applicants will suffer significant harm.

4. I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

5. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant.

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

   DECISION

7. The Tribunal affirms the decision not to grant the applicants protection visas.

   Patricia Tyson
   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.

   …