1930011 (Refugee)

1930011 (Refugee) [2020] AATA 1135 (14 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1930011
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Hugh Sanderson
DATE:14 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 January 2020 at 1:28pm
CATCHWORDS
REFUGEE – protection visa – Fiji – harassment by military during coup – health and social services – credibility – delay in applying for protection – previous permanent residence visa cancelled – claims of fear of harm raised late – voluntary return to home country – travelled on own passport with no problems – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 21 October 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 16 September 2019. The delegate refused to grant the visa on the basis that the delegate did not accept the claims made by the applicant that he would be persecuted if he returned to Fiji or that there was a real risk that he would suffer significant harm if he returned to Fiji.
Background
The applicant is a citizen of Fiji and is currently [age] years old. He first arrived in Australia in 1988 and has primarily resided in Australia since that time. His movement records held by the Department are not complete. They show that he returned to Fiji for 24 days commencing [February] 2013. The applicant has been living in a de facto relationship with his partner, [Ms A]. They have two children who are adults and Australian citizens.
The applicant held a Subclass 155 Return Resident visa. That visa was cancelled by the Department on 16 June 2017 as a result of the applicant being convicted of an assault on Ms [A]. The applicant applied for a review of that decision before the Tribunal (differently constituted). The Tribunal upheld the decision to cancel the applicant’s visa. In assessing the application, the Tribunal took into account that there did not appear to be any non‑refoulement obligations vis-a-vis the applicant’s potential return to Fiji. No claim was made by the applicant in respect of that application that he would face any persecution or real risk of suffering significant harm from any group or individual if he were required to return to Fiji. The Tribunal took into account the circumstances the applicant would face in Fiji, including the quality of healthcare, his employment prospects and the lack of family support in Fiji, however, it decided to affirm the decision to cancel his visa.
The applicant appealed that decision to the Federal Circuit Court, however, his application was dismissed [in] November 2018. An appeal of that decision to the Federal Court was dismissed [in] June 2019. In those appeals, no issue was raised with respect of the finding of the Tribunal that there were no non-refoulement obligations raised by the applicant for a reason not to cancel his visa. The applicant applied for special leave to the High Court, however, that application was dismissed [in] September 2019.
The current application was filed on 13 September 2019. In his application, the applicant raised the following claims:
·In 1987 during the military coup, the applicant witnessed two military officers beating a civilian on the street in Suva;
·The applicant reported the matter to the police who took all his details;
·The applicant heard on the local news that two people had died in the area where he witnessed the beating;
·The next day, military personnel came looking for the applicant and harassed his family by questioning them about the whereabouts of the applicant, and the applicant went into hiding;
·Due to the harassment his family was suffering from the military, he was forced by his family to leave Fiji and go to Australia as he feared persecution in Fiji;
·In 2013 he returned to Fiji to attend a funeral, but was very scared that he could be held up;
·He could not return to Fiji as the authorities would find him anywhere he was;
·There is a threat against him and his family members from the military and police; and
·He fears physical harm from the principals in citizen/visa corruption because he has information about people from Fiji who arrive illegally in Australia and because of this his life is in danger.
The applicant provided various documents in support of the application including reports of his medical condition as a result of a workplace injury for which he was receiving workers compensation. He also provided a report from a psychologist with regards to the risk of his reoffending in respect of the family violence for which he was convicted of an offence.
The applicant was interviewed by an officer from the Department. When asked about his claims about the citizen/visa corruption in Fiji the applicant responded by saying “My friend told me to write this down. A friend helped me prepare my visa application. Actually it was somebody in detention from Fiji.” He told the delegate that he was withdrawing that claim.
The delegate who considered the application noted the following issues:
·The applicant reported that he had no difficulties when he returned to Fiji in 2013, although he claimed he remained in hiding over that period;
·The applicant did not provide a plausible account of the claimed fears of persecution in Fiji;
·It appeared the applicant had fabricated the claims in respect of any persecution he faced in Fiji;
·The applicant did not lodge any protection visa application upon his arrival in Australia in 1988, when his Return Resident visa was cancelled in 2017, or at any time over the period when he was appealing against the cancellation of that visa and only lodged the application after his appeal to the High Court had been dismissed; and
·Although the circumstances that the applicant would face and Fiji would not be as beneficial to him as he has been able to access in Australia, the applicant would have access to appropriate healthcare and treatment, a social assistance program and generally acceptable living conditions in Fiji.
Taking these matters into account, the delegate was not satisfied the applicant faced any persecution or that there was a real risk that he would suffer significant harm if he returned to Fiji. The delegate found the applicant did not meet the criteria for the grant of the visa in s.36(2)(a) or s.36(2)(aa) and refused the application.
Information to the Tribunal
The applicant provided a copy of the delegate’s decision with a critique of that decision to the Tribunal. The applicant provided further documents to the Tribunal including the following:
·Articles from the Fiji Sun in respect of benefits from social welfare and increased housing assistance in Fiji;
·Report from the World Health Organisation noting primary healthcare programs have faltered across much of Fiji;
·Cost of living figures in Fiji as assessed by Numbeo.com; and
·United States Country Reports on Human Rights Practices – Fiji dated 25 June 2015.
The applicant appeared before the Tribunal on 8 January 2020 to give evidence and present arguments. The applicant’s wife, [Ms A], gave evidence in support of the applicant. The hearing was conducted with the assistance of an interpreter in the Hindi (Fijian) and English languages.
The Tribunal explained to the applicant the process under s.424AA of the Act. It explained it would be putting to him information which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite him to comment on or respond to the information. If he required more time to comment or respond to the information, he could request an adjournment.
The applicant said that if he was not in detention he would be living with his wife, son, daughter and her three children in the home he owns with his wife. He provided details of his relatives who live in Australia. He said that his wife has [sisters] who continue to live in Fiji.
The applicant said that he returned to Fiji in 2013 to attend his uncle’s funeral. He provided details of his wife’s travel to Fiji.
The applicant was not able to provide details of the visa he was granted to be able to come to Australia in 1988. He said that his parents and a migration agent arranged it. He said that he departed Fiji from Nadi airport and was not stopped at immigration control or had any problems leaving Fiji. He said that when he returned to Fiji in 2013 he again entered and departed Fiji from Nadi airport. He confirmed that he had no problems entering or departing Fiji on his Fijian passport.
The applicant said that when he returned to Fiji in 2013 it was just to attend his uncle’s funeral. He said that he was required to stay three weeks because this was how long the funeral took. He said that apart from the funeral, they had to read the Koran and it had to be interpreted into Hindi. He said that this took a long time. He said he spent all the time hiding in his uncle’s home.
The applicant said that during the military coup in 1987 he saw two military officers grab a person who tried to run away from them and they beat him with sticks. He saw two other military people in a van that was near them. He said the assault took place over 5 or 10 minutes. He said that he was standing on the other side of the street. He said that lots of people were running away and the assault happened at about 3:00 pm. He said that he did not know who the military officers were and he could not identify them. He just said he just knew that they were military people. He also could not provide any further identification of the other military officers in a nearby vehicle. He just said that all he knew was that it was a military vehicle.
The applicant said that after the assault he then went to the police and told them what was happening on the streets. He said the police took his details and said that they would investigate the matter. He then went home to tell his parents and they told him to go into hiding. He said that after he went into hiding people from the military came to his parents wanting to speak to him but his parents did not tell them where he was. He said that the military people harassed his parents.
The applicant said that he has not told anyone else about what he had seen done by the military. Apart from telling the police and his parents at the time, he did not make any other allegation against the military until the current application was filed. He had not told his wife about what happened in Fiji until recently. He has not made any further report to any authorities in Fiji or anyone else about what he claims to have seen.
The Tribunal noted that in 1987 there were many reports of the military assaulting civilians. The fact that the applicant may have seen a person assaulted by the military but was not able to identify that person apart from them being a member of the military forces would indicate that he was not a threat to anyone in Fiji who would want to persecute him or cause him any significant harm.
The applicant said that because the police took his details and said they would investigate they know who he was. He said that he was able to identify where the assault took place and a report later said that somebody died there. He said that the military now have that information but he does not know what they have done with it. He said they may have destroyed it.
The Tribunal referred to the claim in the applicant’s application where he fears harm from principals of citizenship/visa corruption. The applicant said that somebody from the detention centre had told him that there are people in Fiji who would just grab people from the street, and as somebody told him this he believes it. He said that he had no information or other details about any corruption in Fiji.
The Tribunal asked the applicant if he had any information about the medical assistance he would be able to obtain in Fiji. He said that he had been told that he would get free medication but when his family had been sick in Fiji before they had to pay doctors to give them treatment. He said prescribed medication is costly and he would have to pay a doctor to get a prescription and then pay for the prescription drugs. He said his parents left Fiji in 2000 and had received healthcare in Australia.
The applicant said that if he returns to Fiji he will have to apply for welfare and then the authorities might check up on him and find out about his complaint in 1987. He said that when he returned to Fiji in 2013 it was too quick for the authorities to do anything. The applicant said that he kept his Fijian passport because he wanted to keep something he liked. He said that he was never planning to return to Fiji although he did not become an Australian citizen.
The Tribunal referred to the process under s.424AA of the Act referred to above. The Tribunal referred to the information the applicant provided at the time when the Department was taking action to cancel his Return Resident visa. The Tribunal noted that at no time while the cancellation of the applicant’s visa was being considered did the applicant raise any concerns that he had regarding the authorities or anyone else if he returned to Fiji. The Tribunal referred to the decision made by the Tribunal (differently constituted) in that matter where it was specifically stated that “There do not appear to be any non-refoulement obligations vis-a-vis [the applicant]’s potential return to Fiji”. This was relevant as it indicated the applicant did not raise any claim of persecution or real risk of significant harm at that time which indicated the current claims are not genuine.
The applicant said that when he had a permanent resident visa in Australia he did not need to apply for a protection visa. He said that as he was going to have the cancellation of his visa set aside he did not need to raise the fact that he could not return to Fiji.
The Tribunal referred to the applicant’s wife’s movement records that showed she had returned to Fiji regularly. This is relevant as it indicated the applicant could return to Fiji without any real risk of suffering significant harm and his wife had no problems returning to Fiji. The applicant said that his wife returned to Fiji and not him.
The applicant’s wife gave evidence in support of the application. She said she has [a number of siblings] who all reside in Fiji. She said she last returned to Fiji in 2018 when her mother was sick and she returned for her funeral. She provided details of her other travel to Fiji. She said that she had not had any problems in Fiji and her family do not have any problems in Fiji.
The applicant’s wife said that when she and her husband returned to Fiji in 2013 they stayed with her family. She said that they returned for the applicant’s uncle’s funeral which only took a day. She and her husband then stayed the rest of the time with her mother in [Town] with them visiting her relatives and friends, and her relatives visiting her at her mother’s home. She said that the applicant had not travelled with her on other occasions to Fiji because he was in detention or he had said that he did not want to go.
The Tribunal referred to the process under s.424AA of the Act referred to above. The Tribunal referred to the applicant’s wife’s evidence which was that she and her husband were staying with her mother in [Town] together in 2013. This was inconsistent with the information provided by the applicant, both as to where he was staying in Fiji, what he was doing and the reason for staying for three weeks. This undermined the credibility of the applicant and the claims he was making in respect of his Protection visa and that he was in hiding in 2013 when in Fiji.
The applicant said that he was staying at his uncle’s place and his wife was staying with her mother. He said that he only went to his mother-in-law’s house on one occasion. The Tribunal noted that this was inconsistent with the information being provided by his wife. The applicant said that he could not remember.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE

On the basis of the applicant’s identity documents, including his passport and evidence provided at the hearing before the Tribunal, the Tribunal accepts that the applicant is a national of Fiji. Therefore, for the purposes of s.36(2)(a) of the Act and the meaning of refugee in s.5H of the Act, the Tribunal accepts that Fiji is the country of nationality. For the purposes of s.36(2)(aa) of the Act, the Tribunal accepts that Fiji is the receiving country.
The applicant claims that if he returns to Fiji, he will face harm from military officers on the basis that he witnessed an assault by military officers during the coup in 1987 and reported this assault to the police. He claimed that as he provided his details to the police, the military know he was a witness to an assault and have his details and will be able to find him.
The applicant made a claim that there are principals of a citizenship/visa corruption in Fiji and he poses a risk to those who have arrived illegally. He claimed these people would harm him because of what he knows.
The applicant also claims that he suffers from various medical conditions and that he would not be able to access appropriate medical care in Fiji.
Credibility
The Tribunal has significant concerns as to the credibility of the applicant. The Tribunal finds the applicant has been willing to exaggerate his claims, and makes claims with no basis in truth to support his application.
When the applicant returned to Fiji in 2013 to attend his uncle’s funeral, he claimed that he was in hiding at his uncle’s place all the time that he was in Fiji. He claimed that he remained in Fiji for three weeks because he had to stay for the full ceremony in association with his uncle’s funeral and did not stay any longer than was necessary for his obligations to attend his uncle’s funeral. This information was inconsistent with the information provided by his wife. She said that the funeral went for one day and that for the rest of the time they were in Fiji they were staying with her mother in [Town] and they spent time visiting her family and friends in Fiji or her family and friends visiting them at her mother’s house. When this inconsistency was put to the applicant, he claimed that he only visited his wife’s mother on one occasion and was otherwise in hiding at his uncle’s home.
The Tribunal finds the description of the time the applicant and his wife spent in Fiji given by his wife was a more accurate description than that of the applicant. The Tribunal finds the applicant’s description of being in hiding for three weeks at his uncle’s place and that the funeral arrangements took three weeks has been provided simply to support his application and is not an accurate description of the events of that period. The Tribunal finds the applicant has been willing to exaggerate and provide false information to the Tribunal in order to support his application.
In the statement provided in support of his application, the applicant claimed that he was in fear of physical harm from principals of citizenship/visa corruption. He claimed that he has information that poses a risk to those people who have arrived illegally. When questioned about this by the delegate, the applicant indicated that he had been told by somebody while in detention to make this claim and, after questioning by the delegate, said that he was withdrawing that claim.
During the hearing, the applicant claimed that he was confused by the delegate when he withdrew that part of his application. However, when questioned by the Tribunal, the applicant stated that he had no information about any citizen/visa corruption but that somebody in detention had told him about it and so it must be true and he believed them.
That the applicant would continue with an application where he has no knowledge of any alleged corruption on the basis that someone in detention had told him to include it in his application indicates the applicant has been willing to provide exaggerated and spurious claims which have no foundation.
The delay in bringing the application also calls into question the credibility of the applicant and the validity of the claims being made. The applicant arrived in Australia in 1988. The Tribunal accepts that if the claims that he could not return to Fiji are correct, he would have no need to apply for a protection visa at that time as he had the right to reside permanently in Australia. When his Return Resident visa was cancelled by the Department in April 2018 the applicant did not raise any issue which would indicate that he faced any well‑founded fear of persecution or real risk of suffering significant harm if he were to be returned to Fiji. The only claims he made at that time was the lack of medical facilities and social welfare assistance that he would be able to access in Fiji.
When considering whether to set aside the cancellation before the Tribunal, the applicant again did not make any claim that he faced any well-founded fear of persecution or real risk of suffering significant harm if he were to be returned to Fiji. This was a specific issue that was noted by the Tribunal in the Tribunal’s decision (at paragraph 127). The applicant claimed that as he believed he was going to have the cancellation of his visa set aside there was no need to bring a protection visa application or the claims he is now making.
Although the Tribunal accepts that there was no need for the applicant to bring any claim that he faced persecution or a real risk of significant harm if he were to return to Fiji when he held permanent residence in Australia, the fact that he did not make the claims he is now making as to the persecution and harm he claims to face in Fiji undermines the credibility of the applicant and the claims he is making. At no stage when the cancellation of the applicant’s permanent residence in Australia was being considered by the Department and by the Tribunal on review were these claims raised. The claims now made were only done so after the applicant’s final appeal to the High Court was refused. The fact that the applicant delayed making the claim that he had a well-founded fear of persecution or a real risk of significant harm in Fiji until after the applicant’s last attempt to set aside the cancellation had been refused undermines the credibility of the applicant and the claims he is making.
Fear of reprisals by officers in the Fijian military
The primary claim of the applicant is that he observed two military officers during the coup in 1987 assault a civilian who he believes, based on a report he heard on the radio at the time, died after the assault.[1] As he made a report to the police at the time, he believes the military have his details and would be able to locate him and he faces a real risk of significant harm from the military if he returned to Fiji. The Tribunal does not accept the applicant has a well‑founded fear of persecution or there is a real risk of significant harm in Fiji based on this claim.
[1] In the application the applicant refers to seeing two military officers beating a civilian and then hearing on the local news that “2 passed at the same area where I witnessed the beating”.
The Tribunal accepts that in 1987 during the coups that occurred that year, there were instances where military personnel assaulted civilians and conduct themselves in an unlawful manner. This was well-reported at the time and observed by many people.
Although the applicant claims he made a report to the police, he has provided no information to support this claim. The information the applicant had about the assault is nondescript and would be of little probative weight in any investigation or prosecution of anyone. Apart from saying he saw two military officers assaulting a civilian and saw two other military officers in a military vehicle doing nothing, he is not able to provide any other details. He could not identify any of the military officers or the vehicle he claims he saw at the time. There is nothing he could say to identify any person of any offence or lead to any adverse repercussions for any member of the military.
The applicant claims that as he gave his details to the police, the military will be able to identify him and track him down. If this were so in that any personnel from the military or any other authority had any interest in the applicant, it would be expected that they would have been able to detain the applicant at the time when he departed Fiji in 1988 or when he has returned to Fiji.
The applicant claims that he was in hiding throughout the time that he was in Fiji after making the report till he came to Australia in 1988. He claims that he was staying with his uncle who lived a short distance from where he had been living with his parents. If he was living with a relative a short distance from his parents’ home, it would indicate the military at that time had little or no interest in locating him or interrogating him for any reason. As he was applying for a visa to enter Australia, he would have been required to provide various documents from the Fijian authorities in support of that application. The applicant claimed that he did not know what visa he was granted to enter Australia and that he left this in the hands of his uncle and an immigration agent. Even though the applicant may not have known the basis of any application to be able to live in Australia, he or his agent would still have had to provide documentation from the authorities in Fiji to be able to enter Australia. Again, there is no information which would indicate that in obtaining these documents the authorities had any interest in the applicant or wish to interrogate him for any reason.
The applicant was able to depart Fiji in 1988 without any problems, leaving by the international airport at Nadi. If it was the case that the military or any authorities wished to detain or interrogate the applicant for any reason it would be expected that they would have taken action at that time to prevent the applicant from departing Fiji. That the applicant was able to depart Fiji without any difficulties using his genuine Fijian passport indicates the applicant was not then and is not now of any interest to the military, who in 1988 were the primary authority in Fiji, or is of any interest to any other authority.
The applicant returned to Fiji [in] February 2013 with his wife to attend the funeral of his uncle. He and his wife remained in Fiji until returning to Australia [in] March 2013, a period of three weeks. The applicant was again able to enter and leave Fiji using his genuine Fijian passport without any difficulties. There is nothing to indicate that upon his arrival in Fiji or at the time of his departure the authorities in Fiji, including the military, had any interest in the applicant for any reason.
The applicant claimed that he remained in Fiji for three weeks as this was the length of time the funeral ceremony for his uncle took place and he was in hiding all the time. For the reasons set out above, the Tribunal does not accept this. The Tribunal finds that the funeral ceremony and the involvement of the applicant in that ceremony was for not more than one day. The fact that the applicant was willing to remain in Fiji for a period of three weeks indicates that he did not have any concerns that he would be identified by the authorities or that they would have any interest in him for any reason.
The Tribunal does not accept the applicant was in hiding over this period. The Tribunal finds that the applicant was staying primarily at his wife’s mother’s home and he and his wife were socialising with friends and family members over the three weeks they were in Fiji. This again does not indicate the applicant has any concerns as to his safety or that there is a real risk of significant harm or a well-founded fear of persecution should he return to Fiji.
Since allegedly making the report to the police in 1987, the applicant has done nothing about following through his claims that he observed two military officers assaulting a civilian who possibly died after that assault. He has not contacted any authorities in Australia or in Fiji. He has not publicised the fact that he was a witness to the alleged assault. When he returned to Fiji in 2013 he did not make any inquiries or further reports about the assault and has not indicated that he intends to make any further inquiries or reports about the alleged assault in 1987.
It is now more than 30 years since the alleged assault occurred and the applicant claimed he made a report to the police. There have been significant changes in Fiji over the last 30 years. The Tribunal does not accept that if the applicant has taken no action over the last 30 years in respect of the alleged assault and what he claims to have seen that there is anybody including the military authorities, any individual military officer or any other person in authority who would have any interest in the applicant.
The current country information as to Fiji does not indicate that the applicant would face any well-founded fear of persecution or real risk of suffering significant harm if he returned to Fiji. The Department of Foreign Affairs and Trade (DFAT) reported that “Fiji is generally stable and secure”.[2] The Fijian 2013 Constitution contains a comprehensive Bill of Rights, specifically protecting the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief.[3] Although there have been allegations of extrajudicial killings by security services in Fiji following the 2000 coup,[4] the Tribunal has not been able to find any recent information which would indicate the military or any other authorities or groups have been involved in any extrajudicial killings or abductions since then. No information was provided by the applicant to support his claim. The most recent report from DFAT states as follows:
Fiji has had a long history of functional democratic rule. However, the last 30 years have been peppered with periods of political instability – including four coups, the imposition of martial law and multiple instances of the Constitution being abrogated…
As of late 2014, following the elections, and as a result of the return to constitutional government, the rule of law in Fiji has generally improved in comparison to the situation prior to the elections. For most ordinary citizens, the police and military are effective and impartial…
Credible contacts report that military personnel are also involved in monitoring and occasional harassment of opposition political leaders, NGO activists, and the media. However, this appears to have lessened in 2016 and 2017, compared to the previous reporting period immediately following elections.[5]
[2] DFAT Country Information Report – Fiji – 27 September 2017 at 2.43.
[3] DFAT Country Information Report – Fiji – 27 September 2017 at 2.39.
[4] DFAT Country Information Report – Fiji – 27 September 2017 at 4.1.
[5] DFAT Country Information Report – Fiji – 27 September 2017 at 5.1, 5.4 and 5.7.
Although the Tribunal accepts the applicant may have seen military officers assaulting a civilian during the coup in 1987, the Tribunal does not accept that the military or any other authorities or individual have made any attempt to locate or to question the applicant at any time. The Tribunal does not accept that the applicant has any information which would be of any interest to any individual or authority in Fiji or he has a profile which would mean that he would be of a concern to them such that they would attempt to contact or abduct him or that he has a well-founded fear of persecution because of any information he holds or that anybody believe he holds. The Tribunal does not accept that there is a real risk that the applicant would suffer significant harm because of any information he holds or that anybody or authority believes he holds.
Citizenship/visa corruption
In his application, the applicant made the following claim:
I fear physical harm in the first place from the principals of the citizenship/visa corruption. These people have as their main goal as getting the same benefits for their extended family and the risk of exposure and the potential splitting of their families is a huge motivated to them. The grapevine from Fiji to Australia to military is very efficient and I am known to the members of the Police and Military.
The information I have poses a risk to those who have arrived illegally and because my identity is not a secret, there are many people in Fiji who would have no hesitation in endangering my life.
When questioned about this, the applicant said that he had no information about any visa or citizenship scam or any alleged corruption by any individuals or authorities in Fiji. He stated that he had been told to put this claim in by a friend he met in immigration detention and as he had been told this information, he believed it was true.
The applicant has provided nothing to support this claim. He has stated that he has no information about any citizenship/visa scam in Fiji or any scam or corruption leading to people being able to enter Australia or any other country unlawfully or using bogus documents.
The Tribunal does not accept the applicant has any information about any citizenship/visa corruption or that he has any well-founded fear of persecution or there is a real risk of significant harm from any individual or group or authority based on this claim.
Medical treatment and conditions in Fiji
The applicant has provided documentation to establish the fact that he suffers from a number of medical conditions. These are, in part, due to a work-related injury he suffered in 2009. He has been receiving medication since then and has more recently been consulting a psychologist. In 2019 he presented with non-specific occipital headaches and an MRI scan of the brain was suggestive of a benign meningioma. The only continuing treatment he had as a result of that assessment was organising a follow-up MRI scan in 2020. As a result of his work injury, he has not been in paid employment for a number of years.
The applicant does not have any close relatives who continue to live in Fiji. His wife has [a number of siblings] who continue to live there. It does not appear that the applicant has a close relationship with his wife’s siblings and, at most, it would be expected that they would give him limited support if he were to return to Fiji.
The claims made by the applicant in respect of his medical condition and the difficulties he would face returning to Fiji both in supporting himself and obtaining appropriate medical treatment was raised by him when he sought to set aside the Department’s decision to cancel his Returning Resident visa. These claims were taken into account by the Tribunal on review of that decision. The Tribunal acknowledged that the quality of healthcare in Fiji is not as great as it is in Australia, although it is not unacceptable, and the applicant would be disadvantaged due to the healthcare available. The Tribunal also acknowledged that the applicant would find it hard to secure employment and a regular income and did not have any close relatives in Fiji.
The Tribunal has had regard to information about the Fijian healthcare system and the social welfare system when considering the applicant’s claims for the protection visa. In the Department’s decision, a copy of which the applicant provided to the Tribunal, the delegate refers to a number of reports in respect of social welfare systems and medical support provided to Fijian citizens. The applicant also provided a number of newspaper articles about various social welfare schemes in Fiji including the Housing Assistance Relief Trust and problems with regards to primary healthcare in Fiji.
A social assistance system applies to all citizens of Fiji which includes cash transfer schemes such as the payment of a regular allowance and other direct financial assistance (for example, food vouchers) and a few indirect transport schemes such as free bus services for people with disabilities.[6] According to the government of Fiji, its Poverty Benefit Scheme (PBS) targets those poorest of the poor and living in destitution.[7] The Fijian government’s budget for the PBS and food voucher system was increased in the 2017 and 2018 financial year.[8] The Fijian government funds various housing schemes, including the Housing Assistance and Relief Trust, which provides homes and assistance with the welfare of destitute people who have little or no regular source of income and rely on the Department of Social Welfare for financial assistance, and the Public Rental Board which provides rent subsidies.[9]
[6] Social Security Administration, Office of Retirement and Disability Policy, Office of Research, Evaluation, and Statistics 2017, Social Security Programs Throughout the World: Asia and the Pacific, 2016 (Washington, DC: SSA Publication No. 13-11802, March), pp.80-83 ‘Fiji’; UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February, pp.50, 140-141.
[7] The Fijian Government 2014, ‘Poverty Benefit Scheme Ensures Objectivity in Selection Criteria’, Media Press Release, 3 January, Kalouniviti M 2017, ‘Fiji Budget For 2017-18 Increases Spending By $459 Million’, Fiji Times Online, 29 June,
[9] UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February, pp.131-132 & 147; The Housing Assistance and Relief trust website, ‘About Us’ and ‘Hart Communities’ Public Rental Board [2015], Annual Report 2014 (Parliament of Fiji, Parliamentary Paper Number 62 of 2015, [document created 16/10/2015]), on Housing Authority of Fiji website , pp.3, 19, 9, 14, 11 & 13.

There is a free and extensive government healthcare system that is generally available in Fiji, with public hospitals and clinics providing free healthcare including generalist and specialist services and hospitalisation.[10] The government has prioritised equity and access for the poor in its health services.[11] An MRI is shared between Suva Private Hospital and Colonial War Memorial Hospital, which is the major public hospital in Suva.[12] In Fiji there are specialist healthcare services, including services for mental health such as community mental health teams and the St Giles Hospital which provides inpatient and outpatient services for mental illness.[13]
[10] Social Security Administration, Office of Retirement and Disability Policy, Office of Research, Evaluation, and Statistics 2017, Social Security Programs Throughout the World: Asia and the Pacific, 2016 (Washington, DC: SSA Publication No. 13-11802, March), pp.81-82.
[11] UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February, p.147; DFAT Report at [2.24].
[12] Department of Foreign Affairs and Trade Country Information Report on Fiji, 27 September 2019 at 2.25.
[13] Ministry of Health and Medical Services n.d. [current], ‘Healthy You. Mental Health. Where to get help’, Ministry of Health and Medical Services [2016], Annual Corporate Plan 2016, p.7,
In their report on Fiji, DFAT noted that Fijians’ life expectancy at birth is comparatively high and just over 70 years, reflecting higher than regional average health outcomes. The government provides generous public health services, including free primary and secondary healthcare. However, X-ray and other support services are not genuinely subsidised.[14]
[14] DFAT Country Information Report – Fiji – 27 September 2017 at 2.24.
The claims made by the applicant during the hearing were not that he would not be able to access medication or other medical services, but that he would have to pay for them. He provided no information which would indicate that he would not be permitted to access available government-subsidised medical treatment including the provision of prescription medication. He did not claim that he would be refused medication because he is an Indo‑Fijian and there is nothing to indicate that he would be denied any services available to any Fijian citizen due to his ethnic background.[15]
[15] DFAT Country Information Report – Fiji – 27 September 2017 at 3.8.
There is nothing to indicate that the applicant would not be able to access the social welfare system in Fiji as a Fijian citizen. The Tribunal finds that he will be able to access health and welfare schemes to assist him managing his housing and medical conditions. The Tribunal does not accept that the applicant would be denied any medical treatment or social welfare assistance on any discriminatory basis. The Tribunal accepts that the level of assistance the applicant would be likely entitled to in Fiji would be less than what he has been able to access in Australia, however, the Tribunal is not satisfied that the lower level of services offered amounts to persecution or that there is a real risk the applicant will suffer significant harm due to the limited availability of medical and social welfare resources in Fiji. The Tribunal does not accept the social welfare assistance and medical resources available to the applicant in Fiji, even though less than what he would be able to access in Australia, comes within the definition of persecution or the complementary protection provisions of a real risk that he would suffer significant harm.[16]
Overall assessment
[16] See MZAAJ v MIBP [2015] FCA 478.
The Tribunal has considered all the claims made by the applicant both individually and cumulatively. As set out above, the Tribunal does not accept that due to the applicant witnessing or reporting any alleged assault by members of the Fijian military in 1987 that he has a well-founded fear of persecution or there is a real risk that he will suffer significant harm. The Tribunal finds that no individual, group or authority have any interest in the applicant arising from his witnessing any alleged assault in 1987 or any report that he made to the police at that time about that alleged assault.
The Tribunal does not accept the claims made by the applicant that he possesses any information about any citizenship/visa corruption. The Tribunal does not accept this claim by the applicant in its totality.
The Tribunal does not accept that the applicant would not be entitled to social welfare benefits and medical assistance provided by the Fijian government as a Fijian citizen. The Tribunal accepts that the level of social welfare assistance and medical assistance the applicant would receive in Fiji would be less than he has had the benefit of in Australia, however, it does not accept that the reduced level of social welfare benefits and medical assistance he would receive in Fiji amounts to persecution or that there is a real risk of suffering significant harm due to that reduced benefit.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hugh Sanderson
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.
…

[2020] AATA 1135

14 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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