1929591 (Refugee)

1929591 (Refugee) [2023] AATA 3369 (1 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929591
COUNTRY OF REFERENCE:                   Fiji
MEMBER:David James
DATE:1 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 August 2023 at 2:22pm

CATCHWORDS
REFUGEE – Protection visa – Fiji – particular social group – relative of a person killed by the Fijian military and/or police – better employment opportunities in Australia – had never suffered any personal or public abuse – has no fears of persecution – no adverse profile with authorities – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 46, 91, 411, 499
Migration Regulations 1994, r 1.12, Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 29 April 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 18 October 2019. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 31 July 2023 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
In this regard, the Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility; and that a person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Fiji and provided a copy of his Fijian passport to the Department. Based on this material the Tribunal finds that the applicant is who he says he is, and a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Issues
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection which include (but is not limited to) the following documents which have been considered by the Tribunal:
·applicant’s protection visa application form submitted on 29 April 2019 and the accompanying identification documents of the applicant;
·applicant’s certificate of marriage of [September] 2019 at Brisbane, recording [name] as his wife;
·the Fijian birth certificates of the applicant and his wife;
·applicant’s application for review (18 October 2019) and attached protection visa decision record of 4 October 2019; and
·the administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant in his visa application stated that his father’s [Relative A] was killed by a military (army) [officer] and his family continues to pursue justice in this case. He claims that:
·as a school student he has been abused psychologically and verbally by school students who belong to the families of military officers;
·that he has approached his schoolteachers and the principal of the school, but they could not help, and there is nothing the police can do about the verbal abuse from the public;
·he has been deprived of further university studies and also deprived of work in Fiji;
·the only safe and secure residence for him is to stay and live at his parent’s home;
·as the case of his family’s pursuit for justice is well-known all over Fiji, he will be victimised everywhere in Fiji; and
·the authorities in Fiji cannot protect him against the personal and public abuses.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 4 October 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant’s relative had died from injuries inflicted by a Fijian army officer but did not accept that the applicant had a profile that will be of any adverse interest to the Fijian authorities. The delegate also found that the applicant could obtain from an authority of the Fijian government protection such that there would not be a real risk that the applicant will suffer significant harm. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate for the same reasons was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 13 July 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 31 July 2023 at 1:00 pm. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Review hearing – 31 July 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, explained that he understood the criteria.
Given the applicant appeared before the Tribunal at the review alone and without the assistance of a representative the Tribunal provided to the applicant a brief outline of the refugee and complimentary protection criteria. The applicant then indicated to the Tribunal that he understood the criteria.
Under questioning the applicant told the Tribunal that he had completed his protection visa application form by himself and without any assistance and further that all his answers to the questions in the form were true and accurate.
The applicant told the Tribunal that after he last arrived in Australia in 2019, he had initially stayed with his paternal uncle [in] the Brisbane suburb of [suburb]. He said after seven months he moved in with his new wife who he had met in Australia. He said that he was married [in] September 2019, and that they had lived at [suburb] before moving to their current home at [another suburb].
He explained that his wife was also from Fiji and had come to Australia in about 2000 with her mother who had arrived on a partner visa after marrying an Australian. He told the Tribunal that his wife was an Australian permanent resident and had two children from an earlier relationship. He said that since marrying his wife they have had two children, a son who is now [age] years of age, and a daughter who is [age]. Under questioning from the Tribunal, he was unable to tell the Tribunal whether his children were Australian citizens and told the Tribunal that he did not think that his wife had yet applied for, or, organised Australian Birth certificates for their children.
The applicant told the Tribunal that in October 2019 he had got his first Australian job with [Agency 1], an employment agency where he worked as a casual [worker]. He said there had been no work for him during the Covid pandemic period until about March 2020 when he obtained employment with a company called [Company 1]. He explained that he worked [for] [Company 1]. He said that he later returned to work for his old employer, [Agency 1] in January of 2023.
Under questioning he told the Tribunal that his [age]-year-old father was still living with the applicant’s family and working as an [occupation] at [a workplace] in [City 1]. He explained that his father had worked at this government owned and operated [workplace] for over 23 years and that his father had never had any issues or problems at the [workplace] nor with the Fijian police and/or military over any issues including the death of his [Relative A]. He explained that his [Relative A] had been killed by members of the military and police. He said that his [age]-year-old mother also resided with his family and that she had been and was still, a stay-at-home mother who had also never had any issues or problems with any Fijian government authrority.
The applicant also told the Tribunal that his [age]-year-old sister was presently studying [at University 1] in Fiji and that she had not experienced any problems or issues at school or at university. He also explained that she had not experiences any issues in securing enrolment in her present studies at [University 1]. Likewise, he explained to the Tribunal that his [age]-year-old brother and [age]-year-old sister who were at the same high school that he had attended, but at a different campus, had also not experienced any problems or issues at their school arising from the death of their [Relative A] at the hands of the military and police or for any other reason. He also told the Tribunal that his youngest siblings, his [age]-year-old sister, and [age]-year-old brother, who were at primary school had also not experienced any problems or issues at their school arising from the death of their [Relative A] at the hands of the military and police or for any other reason.
Under further questioning from the Tribunal, the applicant told the Tribunal that none of his family including himself had ever experienced any problems or issues in Fiji arising from the death of his [Relative A] at the hands of the military and police or for any other reason.
In reply to the Tribunal’s questioning as to why the applicant had applied for protection, the applicant told the Tribunal that the reasons why he had so applied and had come to Australia in 2019, was so he could have a better future, a good life and to help and support his family back in Fiji. He further explained that he currently was sending about $300 Australian a month to his family in Fiji and that given his own commitments to his family here in Australia that was all he could afford to send home.
In reply to the Tribunal posing to him that he was not scared about returning to Fiji, but his situation was rather that he wanted to remain in Australia not out of any fear of harm in Fiji, but because he wanted to have a better life and enjoy better employment opportunities in Australia; he replied to the Tribunal; Yes.
When asked directly as to what fears of harm he had as to returning to Fiji he told the Tribunal he had no such fears at all.
The Tribunal then asked the applicant if he recalled the explanation the Tribunal had provided to him at the beginning of the hearing as to the refugee criterion and whether he thought he was a refugee. The applicant told the Tribunal he recalled and understood the refugee criterion and that he was not a refugee.
The Tribunal also queried the applicant as to whether he recalled the explanation the Tribunal had provided to him at the beginning of the hearing as to the complimentary protection criterion and whether he thought he was owed complimentary protection. The applicant told the Tribunal he also recalled and understood the complimentary criterion and that he was not so owed protection on that basis.
The applicant was then taken through his claims as outlined in his visa application; see above at paragraph 17.
In reply to the Tribunal, he said that had had not been abused psychologically and verbally by school students who belonged to military families. He said he had not approached any of his teachers and/or the school principal or the police as to this purported abuse. He also told the Tribunal that he had not been deprived of further university studies and had actually obtained enrolment in [a named College], but that he had later voluntarily withdrawn from his studies. He also told the Tribunal his family home had not been the only secure residence for him in Fiji and that he had been free to, and had freely moved about in Fiji, without any restrictions and/or fears for his safety. He further stated that he did believe that the Fijian police would if he so needed be able to protect him.
The applicant then told the Tribunal that he had never suffered any personal or public abuse notwithstanding there had been many media reports of his [Relative A]’s death and the military and police involved in his [Relative A]’s death having later being charged with manslaughter; being imprisoned; and later released after being imprisoned for about three years. He also said that the Fijian police are ‘pretty good’ and with the new government there had been many positive changes in Fiji, and that the military no longer have the same power as they did have under the former government.
In response to the country information as outlined below being discussed with the applicant, he told the Tribunal that he agreed with that information.
Finally, the Tribunal asked the applicant how he had come to make his claims that were recorded in the visa application given that he now withdrew same and had acknowledged that they were all false and without any substance. The applicant told the Tribunal that after he had told his uncle of his intention to remain in Australia his uncle had suggested the claims which he then recorded in his application knowing that they were untrue.　
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
Country information
Radio New Zealand (Pacific) in a report titled ‘[title]’ reported on [date] October 2007 that:
[deleted].[9]
[9] [Source deleted]
Radio New Zealand (Pacific) in a report titled ‘[deleted] reported on [date] May 2009 that:
[deleted].[10]
[10] [Source deleted]
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including under the heading of ‘State Protection’ at 5.1 to 5.16 where under the sub heading of ‘Military’ it is reported at 5.1 to 5.3 that:
The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.
The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.
Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état (see Recent history) are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.
Under the sub heading of ’Police’ at 5.6 to 5.10 where at 5.6, 5.7 and 5.10 it is reported that:
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.
‘Judiciary and access to law’ at 5.17 to 5.20 where it states at 5.17 to 5.19 that:
Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021.
The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.
Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.
The Tribunal has also considered other sources of recent country information since the December 2022 Fijian elections and the subsequent change of government, including the Lowy Institute’s report; ‘Fijis New Politics’ of 17 January 2023, in which in part it is reported that:
Fiji’s 14 December 2022 election will go down as a momentous occasion in the nation’s history – including for potential impacts on Suva[City 1]’s diplomatic ties with Pacific partners.
Immediate tasks identified by new Prime Minister Sitiveni Rabuka’s tripartite coalition include the revival of the pandemic-scarred economy, the re-examination of foreign relations, and the restoration of democratic institutions, which never quite recovered from the battering of the 2006 coup.
The election ended the 16-year reign of the Fiji First Government headed by Frank Bainimarama, the country’s larger-than-life figure after seizing power in 2006, before winning elections in 2014 and 2018. Bainimarama’s military background coupled with Fiji’s “coup culture” had raised concerns about a smooth transfer of power amid fears about the military being called to assist police. For two weeks after the new government was finally sworn-in on Christmas Eve on a slim, three seat majority in the 55-member house, the country was on edge as tensions between the former and successor governments intensified…[11]
[11] ‘Fiji’s New Politics’, Shailendra Bahadur Singh, Lowy Institute, published 17 January 2023 Fiji, - >
And the Centre for Strategies and International Studies article ‘A New Era in Fijian Politics’ in which it was reported that:
…Rabuka’s government has wasted no time in reversing numerous vestiges of Bainimarama’s long tenure. This includes the release of withheld funding for the University of the South Pacific, which is critical to not only Fiji but the wider Pacific, as well as permitting the return of the institution’s exiled vice chancellor. Monetary payments were also announced for 200,000 low-income Fijian families to assist with schooling costs, as well as an infusion of funds for Fiji’s beleaguered school system. MPs were given another pay cut bringing their earnings down 30 percent from pre-pandemic levels. Rabuka’s government has also signaled its intent to roll back media restrictions that were one of the most egregious features of the Bainimarama era. Alongside these popular measures, Rabuka’s government has exercised its prerogative to overturn appointments made by the previous government to diplomatic missions, government agencies, and institutions…
… China is also very much on the minds of all those watching Fiji’s new government. China’s influence in Fiji and elsewhere in the Pacific surged during the Bainimarama era. Indeed, the international sanctions imposed on Fiji after the 2006 coup presented opportunities for China that were not missed. Rabuka has stressed his openness to work with all partners, including China and at first seemed to “chide” traditional partners (Australia, New Zealand, the United States, and the United Kingdom) for continuing to operate with outdated colonial mindsets. Yet on January 28, Rabuka terminated an MOU with China on joint police training. In good news for Fiji’s traditional partners, Rabuka reasoned that Fiji and China’s “democracy and justice systems are different so we will go back to those that have similar systems with us.”[12]
[12] ‘A New Era in Fijian Politics’, Patricia O’Brien, Centre for Strategies and International Studies, published 7 February 2023 - https:/>
The Tribunal found the applicant to be an honest witness who made many concessions adverse to his claims and who withdrew all of his claims identifying that all of his claims but for his [Relative A]’s death and the circumstances surrounding that death were actually false.
The Tribunal finds in accordance with the applicant’s own oral testimony that he has no fears of persecution for any of the reasons provided for in s 5J of the Act involving serious harm in the reasonably foreseeable future if he was to return to Fiji. The Tribunal also notes that it was the applicant’s unambiguous credible and voluntary oral evidence at the hearing that he has never had any fears of harm as to his past life in Fiji or as a result of any future return to Fiji.
Member of a Particular Social Group (PSG) – ‘relative of a person killed by the Fijian military and/or police’
The Tribunal finds that on the evidence before it, and most particularly the applicant’s own oral evidence at the hearing, that the applicant does not have an adverse profile with the Fijian authorities, arising from the death of his [Relative A] at the hands of several military and police officers. Given the applicant has never been the subject of any victimisation, threats of violence, any violence, psychological and/or physical abuse from any members of the Fijian community whether they be members of the Fijian government or otherwise and given he has never held any fears of harm nor has any present fears as to him returning to Fiji, the Tribunal rejects the applicant’s claims in their entirety. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future if he was to return to Fiji for the reasons of his membership of the PSG of being a ‘relative of a person killed by the Fijian military and/or police’
The applicant’s fears in this regard are not well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) 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.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Fiji.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2023] AATA 3369

1 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction