1929691 (Refugee)

1929691 (Refugee) [2023] AATA 3603 (14 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1929691
COUNTRY OF REFERENCE:                   Fiji
MEMBER:David James
DATE:14 August 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 August 2023 at 1:43pm
CATCHWORDS
REFUGEE – protection visa – Fiji – persecution of indigenous Fijians – termination of employment – unapproved sick leave – ability to find alternate employment – health condition – access to health care – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 411
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 dependant.
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 3 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 31 January 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 19 October 2019.
On 26 October 2019 the applicant provided a copy of the delegate’s decision to the Tribunal.
As noted above, the applicant has provided a copy of the delegate’s decision to the Tribunal. 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 10 August 2023 to give evidence and present arguments.
The applicant was not represented in relation to the review.
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
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 31 January 2019 and the accompanying identification documents (Fijian passport, Fijian driver’s license and New South Wales photo card), Fijian birth certificate, education certificates, workplace course certificates of completion and letter of ‘abandonment of employment’ from [Employer 1];
·applicant’s application for review (19 October 2019) and attached protection visa decision record of 3 October 2019;
·the administrative and movement records of the Department relating to the applicant;
·Fijian Death Certificate, Notification of Death form, Police Officer’s Order for Burial, Medical Cause of Death Certificate and Morgue and Funeral Directors form in relation to the death of the applicant’s son, [Mr A], [age] years of age wo passed away [in] July 2023 at [Hospital 1], Fiji (provided to the Tribunal at the hearing on 10 August 2023); and
·letter of employment confirmation from [Organisation 1] confirming the applicant’s past employment in Australia (provided to the Tribunal at the hearing on 10 August 2023).
Claims for protection
The applicant in his visa application stated that he had decided not to return to Fiji while on holiday in Australia because his current employment had been terminated while he had been away on leave. He explained that he had applied for his annual leave several months before leaving Fiji and that this leave had been approved by Management. However, he stated that while he was away on leave his employer, [Employer 1], terminated his employment on grounds of his ‘abandonment of employment’. His claims for protection (in summary) are that:
·he is one of the hardworking indigenous Fijians who have had their contracts of employment terminated by [Employer 1] to make way for senior positions to be taken up by Fijian Indians. [There] has been a strategic plan of getting Fijian Indians to occupy senior positions throughout government owned or semi-owned companies such as [Employer 1];
·he has heard that management ([Employer 1]) have been instructed to give Fijian workers (such as the applicant) leave but while on leave to terminate their employment, and this practice is a classic case of unfair dismissal, racial discrimination and intimidation that is being conducted by the current Fijian government (2019);
·the [employer] has installed bullying tactics and bias against Fijian staff in line with the current Fijian government;
·he had had his leave approved by [Employer 1] Department of Human Resources a month prior to him departing Fiji for Australia [in] May 2018, and he had followed up with their office as to the whereabouts of his leave form, which he had filed and had been approved by the Human Resources Manager;
·his termination of employment has physically, emotionally and mentally affected his life;
·he fears for his life if he were to speak out against [the employer’s] management or the government of Fiji;
·due to the small size of Fiji and ties between industry and government he will not be able to get another job, given he has been dismissed by [Employer 1] and he will not be able to move to another part of the country and obtain employment and support himself; and
·he fears being targeted by the police if he was to speak out against the Fijian industry and/or the government. His act of applying for protection in Australia is damaging to Fiji and so he will be targeted by the government if he returns to Fiji.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 3 October 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that while there is corruption in the public service in Fiji there was no evidence before the delegate to indicate that the applicant would not be able to obtain protection from the state authorities of Fiji. Additionally, the delegate found that there was no evidence before them which indicated that the applicant has a profile that would attract the adverse interest of the Fijian authorities and that the applicant would not be able to obtain protection from the authorities. 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 14 July 2023 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 10 August 2023 at 9:30 am. 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 – 10 August 2023
The Tribunal hearing was conducted at the Brisbane Registry in the English language.
The applicant at the commencement of the hearing told the Tribunal that his son had recently passed away in Fiji and handed to the Tribunal documentation as to his son’s death. He further provided the Tribunal with a work reference from his former Australian employer: see paragraph 17 above for the details of these documents.
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 alone and without the assistance of a representative the Tribunal provided the applicant with a brief outline of the refugee and complimentary protection criteria. The applicant then confirmed to the Tribunal that he understood the criteria.
Under questioning the applicant told the Tribunal that he had completed his protection visa application form with the assistance of his sister here in Australia, but that all his answers to the questions in the form had been his replies, and they were all true and correct.
The applicant told the Tribunal that he had come on holidays to Australia in 2018 to see his cousin in Sydney. He explained that he had been in Australia for a couple of weeks when he was contacted by his daughter in Fiji who told him that his employer, [Employer 1], had delivered a letter to him at their home address. He asked his daughter to open the letter and also to email the letter to him in Australia. He found the letter to be a termination letter from his employer [Employer 1]. The letter explained that his employment had been terminated on the basis of his ‘abandonment of employment’.
He told the Tribunal that he was a married man and had two daughters and two sons, one of whom had recently passed away at the age of [age] in Fiji. His other son was [age] years of age and still at school in Fiji. As to his two daughters, he told the Tribunal that they were aged [age] years and [age] years. His eldest daughter lived with his other children in the family home and had finished her tertiary studies and was now working in [specified] industry in Fiji as a [Occupation 1]. His younger daughter was still in [school]. He told the Tribunal that his wife had since joined him in Australia after arriving in November 2022 on a tourist visa. He explained that his wife has since made application for a protection visa which the department refused, and she is now awaiting a review hearing before the Tribunal.
He told the Tribunal that he had decided to stay in Australia after being notified of his employment with [Employer 1] being terminated. He stated that after staying with his cousin in Sydney for several months he had relocated to [City 1] where he completed a [specified] course, and he then had obtained employment with the [Organisation 1] as a [Occupation 2]. He said that he had then worked [in a number of] communities as a [Occupation 2] before returning to Sydney where he currently resides with his wife. He explained that he presently works as a causal [Occupation 2] with [Employer 2]. He said that he and his wife are intending to return to Queensland and will do so once his wife completes her [specified] training course in Sydney.
Under questioning as to the termination of his employment with [Employer 1], he conceded that he had prior to travelling to Australia in 2018 been approved to take two weeks of his annual recreational leave which he took in Fiji. However, he had decided to travel to Australia at the end of his leave and use his accumulated sick leave that he was owed for his trip to Australia. Under further questioning he told the Tribunal that he had not applied through his employer for this sick leave but had rather told his immediate supervisor that he was going to take the sick leave for his travel to Australia. He further conceded under questioning that he had not confirmed or made any contact with his employer through their email system and/or directly with the Human Resources section of his employer as to his failure to return to work as expected after his approved leave. He also had not told his employer that he was taking sick leave to travel to Australia on a holiday. He agreed that he had so travelled to Australia without any prior notification or approval that he could access and use his accumulated sick leave. He explained that the letter of termination had arrived at his family home in Fiji after he had taken his approved leave (two weeks) and had further not returned to work for another two weeks during which he had travelled to Australia.
In reply to the Tribunal, he said he had applied for protection because of his fear of death from future mental stress and that these fears had arisen after he had received his termination of employment notification while holidaying in Australia. Under further questioning he explained that he feared returning to Fiji because he believed that after losing his job, he would not be able to find another job, and this would result in his community looking down at him as someone who had lost their job and was unable to provide financially for his family. He said this would cause him stress and may lead to his death through stress related medical conditions such as high blood pressure. He further explained that he had been suffering from high blood pressure but had been treated for this condition by his Australia Doctor who had prescribed medication that has reduced his blood pressure.
He told the Tribunal that he had delayed making his application for a protection visa (eight months since after his arrival) as he had only done so when his visitor visa had run out as he thought he could not apply for another visa until his current visa had expired. He also explained that his fears of harm had only become evident to him after he had his Fijian employment terminated.
The applicant was then taken through his claims as outlined in his protection visa application and he told the Tribunal that he had heard that there had been discrimination against indigenous Fijians in industry and government, but he did not have any actual examples of same. He further conceded that things seem to be changing now with the new government. As to his claim that his employer had been approving leave to Indigenous Fijians so that they could then have their employment terminated, he said that this had in fact happened to him. However, under further questioning he conceded that his employment had been terminated after he had not returned to work and was taking unapproved sick leave.

In this regard, as to the termination of his employment, he also agreed that after he had received his termination notification, he had not made any attempts to contact his employer and explain his position or had made any request for further leave, sick leave or otherwise. He explained that once he had been dismissed, he took the view that they did not want him, so he made no attempts to regain his employment and/or explain his actions to his employer.
In relation to his claim that the [employer] had installed bullying tactics he was unable to provide any examples and simply replied that he had assumed, that that, was the case.
In response to questions as to his claim that his termination of employment had physically, emotionally and mentally affected his life. He explained that he had not sought any treatment, counselling or other medical intervention as to his mental stress, nor had he been diagnosed with any psychiatric and/or psychological illness or disorder. He said that he had recently been treated for high blood pressure which he claims is a symptom of his fears of returning to Fiji.
He told the Tribunal in this regard, that his only fears of harm as to any return to Fiji in the future was (as he had already stated), that he feared for his life as he may become mentally and physically unwell from the stress of not being able to obtain employment if he returned to Fiji together with the shame of being known as having been sacked from his job.
In reply to the Tribunal, he agreed that his fears were only that of his employment prospects and that he would not be able to earn the same income in Fiji as he had been earning in Australia. He further explained that he was well regarded and had been working in indigenous communities and as such was contributing to Australia’s indigenous communities and on that basis should be allowed to remain in Australia through a protection visa or another visa.
The applicant agreed that he had not, nor was he fearful, of being discriminated against in Fiji because of his Indigenous Fijian heritage, and that he had no fears of the police and military or the new government in Fiji.
In reply to discussions as to the country information as outlined below he agreed that there was adequate medical assistance available to him for his stress related medical issues in Fiji, but that what was available in Fiji, was not as good as what is available in Australia. In this regard, he suggested that if his son could have come to Australia, he may well have been saved through the better medical facilities here in Australia. In relation to the other topics outlined in the country information, he said he generally agreed with the information but did not want to further comment.
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 also 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 has provided useful guidance to 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
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including under the headings of ‘Health’ and the sub-heading of ‘Mental health’ at 2.11 to 2.15 where it is reported that:
Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.
Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
Mental health
The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.
Under the heading of ‘Race/Nationality’ at 3.1 to 3.5 where it is stated at 3.1 and 3.5 that:
The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei. Statistics on ethnicity were not released by the Fiji Bureau of Statistics for the 2017 census due to problems when collecting the data.
Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.
Under the sub heading of ‘iTaukei’ at 3.8 to 3.10 it is reported that:
Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.
Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.
Under the heading of ‘Political Opinion (Actual or Implied)’ where at 3.25 it states that:
The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
‘State Protection’ at 5.1 to 5.16 where under the sub heading of ’Police’ at 5.6 to 5.10 it is reported at 5.6, 5.7 and 5.10 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.
As to the ‘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.
And under the heading of ‘Conditions for returnees’ at 5.28 where it provides that:
DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.
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’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…[9]
[9] ‘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.”[10]
[10] ‘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 throughout the hearing to have been evasive and often delayed replying to the questions of the Tribunal as to his claims of fear. However, when pressed by the Tribunal the applicant after taking time to respond did often provide answers that were at times adverse to his claims. As such the Tribunal after assessing the applicant overall throughout the hearing has found the applicant to have generally been an honest witness who was unable to provide any detail as to claims or to explain his fears while often making honest making concessions which significantly reduced his original claims.
As to his claims made in the application for the visa the applicant during the hearing withdrew all his claims effectively by reducing or narrowing them to that of fearing physical, emotional and mental harm including death from stress arising from the termination of his employment with [Employer 1]. The applicant’s claims of fear through the hearing were redefined to effectively being that he feared returning to Fiji after having his former employment terminated because he would struggle to find alternate employment, and as such he would be looked down upon by members of his community as he would not be able to financially support himself and his family in Fiji. He stated that this situation would cause and/or increase his mental stress which could result in his death from high blood pressure and/or other stress related medical issues.

On the evidence before it the Tribunal is satisfied that the applicant was at the time of his arrival in Australia [in] May 2018 employed by [Employer 1] and that his employment was terminated after he extended his annual recreational leave without having any such extension approved. It is accepted that the applicant had prior to arriving in Australia resided with his wife, two daughters and two sons in Fiji and that since his arrival in Australia his [age]-year-old son has passed away in Fiji due to an ongoing medical condition.
Persecution of Indigenous Fijians
The applicant claimed in his application for the visa that he is one of the hardworking Indigenous Fijians who have had their contracts of employment terminated by [Employer 1] to make way for Fijian Indians and that he had heard that the management (of [Employer 1]) have been instructed to give Fijian workers leave, but while on leave they have been terminated. He further claimed that the [employer] has installed bullying tactics and bias against Fijian staff in line with the current Fijian (former) government. In support of these claims the applicant relied upon his claim that he had, had his leave approved by the Human Resources of [Employer 1] but that while on his approved leave his employment had been unfairly terminated.
However, it was the applicant’s evidence under questioning that his employment had been terminated in response to him having without any prior approval or application or notification to his employer taken additional leave and during same travelled to Australia. He told the Tribunal in this regard, that he had been granted two weeks annual leave which he took whilst he was still in Fiji. He explained that after he had taken this leave, he had then travelled to Australia to visit family in Sydney and did so because he had accrued sick leave which he believed he was entitled to take. He further explained that he had told his immediate supervisor of his intentions and that he would be taking sick leave or accessing his accrued sick leave, but he had made no formal application to do so, nor did he check with his employer as to his ability to so and/or whether he was approved to do so. His actions resulted in the termination of his employment on the basis of his abandonment of his employment. Additionally, his evidence was that after receiving the notification of his termination he made no attempts to contact his employer and explain his actions.
The applicant also under questioning failed to provide any examples of other employees being granted leave and then being terminated as he had claimed, nor was he able to provide any examples of bullying and bias on behalf of his former employer in relation to himself and/or any other workers.
Given the applicant’s evidence as to these claims which is outlined above, and which can only be categorised as being vague and without any detail, the Tribunal found the applicant’s claims relating to the persecution of indigenous Fijians to be without any evidential basis, and overall non-descriptive.
The Tribunal finds for the reasons outlined above 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 on account of being an indigenous Fijian.
As such the Tribunal finds that the applicant’s fears in this regard are not well-founded
Political Opinion (Actual or Implied)
The applicant claims that the bullying tactics and bias against Fijian staff is in line with the current Fijian government’s policies and that he fears being targeted by the police if he was to speak out against the Fijian Industry and/or the government.
However, during the hearing the applicant conceded that he had not made any public statements and/or social media postings that expressed his anti-Fijian industry or government views and that he had no intention of making any such statements privately or publicly. He further accepted that the Fijian police were an effective police force, and he accepted the country information as to ‘Political opinion’, ‘State protection’ and the ‘Judiciary’ as outlined above.
Further under questioning as outlined above, the applicant was not able to provide any examples of bullying or incidents of bias at [Employer 1] against any staff or otherwise at other employers and/or government agencies.
The applicant during his evidence also agreed that there may have been changes in the government’s position as to critics given the recent change in government. However, although he accepted there had been a change of government and improvements in the government’s policies towards indigenous Fijians, he was unable to assess how much change had actually occurred as he had been in Australia both before and since the change of government.
The Tribunal found the applicant’s claims in this regard to have been vague and without any specific particulars or evidentiary basis. The Tribunal for these reasons rejects the entirety of the applicant’s claims of persecution arising from any actual and/or implied political opinion held by him and finds that he does not have or has had an anti-Fijian industry and/or government profile such that he would be of interest to the Fijian authorities.
Therefore, for the reasons outlined above the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Fiji in the reasonably foreseeable future on account of his actual and/or implied political opinion.
The Tribunal finds that the applicant’s fears in this regard, are not well-founded.
Health
The applicant throughout the hearing redefined his claims of fear as to returning to Fiji as those that are outlined above at paragraph 51. Such fears being that he fears returning to Fiji after having his former employment terminated because he would struggle to find alternate employment, and as such he would be looked down upon by members of his community as he would not be able to financially support himself and his family in Fiji. He stated that this situation would cause and/or increase his mental stress which could result in his death from high blood pressure and/or other stress related medical issues.
As identified above the applicant’s termination of employment was not as a result of any persecution but a response to him having taken further leave from his employment that had not been approved, and his then continued failure to respond an/or communicate with his employer after he had been so terminated.
It was the applicant’s evidence that he had not sought any diagnosis, assessment, treatment and/or counselling as to his purported stress arising from the termination of his employment. However, he did state that he suffered from high blood pressure but that that had resolved due to his doctor having prescribed medication that reduced his blood pressure. Additionally, with reference to the country information as outlined above at paragraph 47 as to ‘Health’ and ‘Mental health’ the Tribunal is satisfied that the applicant’s reported stress related medical issues can be adequately addressed through the Fijian medical services that would be available to him if he was returned to Fiji.
Therefore, for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Fiji in the reasonably foreseeable future on account of his stress related health issues.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Failed asylum seeker
The applicant also claimed in his application for the visa that his act of applying for protection in Australia is damaging to Fiji and so he will be targeted by the government if he returns to Fiji. The applicant in response to the Tribunal was unable to expand on this claim or provide any information as to the basis of this claim. His evidence in this regard, was that his only fear of harm (as identified above) was that he would struggle to find alternate employment, and as such he would be looked down upon by members of his community, and this would cause him stress that may result in other medical problems and could result in his death.
Given the vague nature of the applicant’s evidence in support of this claim and noting the country information outlined above as to ‘failed asylum seekers’ which provides that DFAT is not aware of any official or societal discrimination against failed asylum seekers, the Tribunal rejects this claim in its entirety.
Therefore, for the reasons outlined above the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Fiji in the reasonably foreseeable future because of him having been a failed asylum seeker in Australia.
The Tribunal finds that 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 3603

14 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction