1930213 (Refugee)
[2023] AATA 4507
•10 October 2023
1930213 (Refugee) [2023] AATA 4507 (10 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW: Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE: Unrepresented
CASE NUMBER: 1930213
COUNTRY OF REFERENCE: Fiji
MEMBER:Kate Chapple
DATE:10 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Statement made on 10 October 2023 at 9:53am
CATCHWORDS
REFUGEE – protection visa – Fiji – resigned from employer to complete higher qualification, then unable to re-employ as course not recognised – country information – low level of official and societal discrimination on grounds of Indo-Fijian ethnicity – insufficient evidence of employment discrimination – recent change of government – registration and work in profession in Australia – current employer will sponsor work visa after protection application finalised – members of family unit – husband’s work and children’s formative years – referred for ministerial consideration – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1), 36(2), 65, 351
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
Protection visa application dated 9 April 2019.
Other departmental records:
2.1.Decision record relating to the delegate’s refusal decision.
2.2.Case file.
2.3.Internal records relating to the applicants.
Application for review
The Tribunal wrote to the applicant inviting her to attend a hearing on 9 October 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal confirmation that she intended to participate in the hearing with the assistance of a Hindi interpreter. No further submissions or evidence were provided to the Tribunal.
The Hearing
The applicant and her husband and children appeared before the Tribunal at a hearing conducted in person on 9 October 2023. An interpreter in the Hindi and English languages attended via video link, however the applicant spoke English throughout the hearing and did not report any difficulties understanding the proceedings or the Tribunal’s questions. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
The applicant was born in Fiji in [Year]. She is Indo-Fijian and Christian. She grew up with her parents and younger siblings and extended family in [City]. Her father was [an Occupation 1] and her mother a housewife who gave up her [Occupation 2] career when she married and started a family. Both parents are deceased. The applicant took up her mother’s dream and qualified as [an Occupation 2]. Her father was the eldest sibling and the only breadwinner who supported and educated family and extended family members. In 2018 when he died, this responsibility fell to the applicant and her husband.
The applicant completed three years’ [Occupation 2] training and was working as [an Occupation 2] for [Employer]. In 2014, she was keen to do further studies, so applied for study leave, which was declined. In October that year, she travelled to [Country] to visit family. While she was there, she spent time with a friend who was [an Occupation 2]. She was encouraged by the opportunities [Country] offered in [Occupation 2], in particular in [Work sub-sector], and was offered a position. She couldn’t accept because she was only a visitor. She told them she would return to Fiji, conclude her work, and apply for a visa to work in New Zealand. However, when she returned to Fiji, she decided that she must continue working until her younger brother had finished school and then she would get on with her own career.
A new [Occupation 2] masters program had just opened at [University]. Still keen to further her studies and career, the applicant applied for two years’ leave without pay to complete her masters while her brother was finishing school, however leave was again declined. The applicant then resigned from [Employer] and undertook the masters program, finishing in December 2017. With higher qualifications, the applicant thought she could re-apply to [Employer] for a management role. More senior colleagues and mentors told her of their experiences being denied positions that were subsequently taken by junior [Occupation 2]s. Also, the [Occupation 2 authority] didn’t recognise the masters course because it was delivered by a professor who had left [Employer].
It was at this stage that the applicant began experiencing significant tension and psychological stress. She had achieved so much in her studies and yet she was unable to advance her [Occupation 2] career. She felt rejected, denied opportunities, and unable to turn to anyone for help. If she re-applied to work at the [Workplace 2], and got a position, there is a stigma in doing this, and she would be required to start again in a graduate level role. Among her friends and colleagues, they talked about protesting, but decided not to because they may get into trouble with the police.
At the end of 2018, the applicant’s sister-in-law in Sydney suggested she come to Australia for a break. In March 2019, the applicant, her husband and children came to Australia on a 3 month tourist visa. The sister-in-law, whom they lived with for more than a year, suggested the applicant apply for a protection visa and encouraged her to continue with her [Occupation 2] career. She completed a bridging course for internationally qualified [Occupation 2]s and received her reciprocal registration in June 2021. She has worked as [an Occupation 2] since, in [Town], New South Wales, and from August this year, at [Work sub-sector workplace] in [City], Queensland.
The applicant is aware there has been a change of government in Fiji, however she’s not following what’s happening there. It’s too traumatic for her to think about Fiji.
The applicant’s brother lives at [Region], Queensland; he is here on a work visa. Her sister is [an Occupation 2] at [Workplace 2] in Fiji. Her sister is trying to get out of Fiji as she also has high career ambitions and is doing further study online through a [Country] university. Her sister tells her that nothing much has changed in [Employer]; the workload for [Occupation 2]s has doubled due to so many [Occupation 2]s leaving the country; 12 hours shifts are common, sometimes 24 hours; there are many stress factors, getting time with family is very hard.
The applicant didn’t get professional help for her psychological stress while she was in Fiji and she couldn’t afford the expense and found it difficult to open up. Instead, she relied on support from her church and family. At one stage, she felt she may not make it. When she came to Australia, her sister-in-law got some support for her, however it wasn’t professional medical help.
Since coming to Australia in 2019, the applicant has seen a lot of change in herself. There’s freedom of speech here; she feels free psychologically, mentally and physically. She’s come a long way since Fiji; she wouldn’t want to go back there and face the trauma again. She has achieved so much in Australia. Her daughter was only aged [Age] when they arrived here, now aged [Age]; she thinks of Australia as home, and so does her son who is now aged [Age].
The trauma of past experiences in Fiji is still in the back of the applicant’s mind. She doesn’t know how she would react to returning to the trauma, and she doesn’t know how the children would settle in. If she were still in Fiji, she wouldn’t be where she’s at now in her career. She’s done [Work sub-sector occupation 2] in Australia for 3 years; this isn’t offered in Fiji. Some of her friends have never re-joined [Employer]; they sit at home unemployed with masters degrees.
The applicant’s husband used to work in [Work sector 2] in Fiji. He changed careers in Australia and is currently completing [an Occupation 3] apprenticeship.
The applicant’s husband came forward at the end of the hearing and advised that her current employer had agreed to sponsor her for a work visa, however that could not proceed until the protection visa application was dealt with.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of her protection claim and to provide sufficient evidence to establish the claim.
In considering the claims and evidence, the Tribunal has taken account of:
The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
The country information set out in Attachment B to this decision record.
The Tribunal considers the applicant gave a truthful account of her time in Fiji, her visit to [Country], and her reasons for leaving Fiji with her husband and children and wishing to establish a life in Australia.
The Tribunal acknowledges that the applicant is a dedicated [Occupation 2] professional, sets high standards for herself, and has demonstrated commitment, drive and aptitude in completing further studies and advancing her [Occupation 2] career.
The Tribunal accepts the applicant’s evidence that she felt excluded from opportunities to advance her [Occupation 2] career in Fiji in the way she had hoped and intended and that, as a result, she experienced considerable stress.
The Tribunal notes the applicant received support from her family and church to help her deal with the stress she experienced, and further notes she did not seek professional medical assistance.
The Tribunal considers there is insufficient evidence before it to support the conclusion that the applicant had or has a mental health condition.
The Tribunal notes the country information relating to the time the applicant was in Fiji, in particular the DFAT assessment that Indo-Fijians faced a low level of official and societal discrimination based on their race/nationality.
The Tribunal considers there is insufficient evidence before it to support a conclusion that the applicant was discriminated against by [Employer] or other authorities serving the former government of Fiji so as to exclude her from opportunities to advance her [Occupation 2].
The Tribunal notes the country information covering the political situation in Fiji since the change of government in December 2022.
The Tribunal notes there is mixed commentary about whether the new government will restore democratic rights and values in Fiji and that it is an evolving situation, however there are some early positive signs.
The Tribunal considers there are no indications that the applicant would be discriminated against under the new government in the pursuit of her [Occupation 2] career in Fiji. The Tribunal acknowledges that there may not be the opportunities in Fiji for the applicant to advance her [Occupation 2] career in the way she hopes and intends.
The Tribunal notes the applicant’s sister is pursuing [an Occupation 2] career in Fiji. The Tribunal considers that while the sister may be looking to leave Fiji and pursue her career elsewhere, it is unlikely she is doing so because she has been discriminated against by [Employer] or other authorities serving under the new government of Fiji so as to exclude her from opportunities to advance her [Occupation 2] career. Rather, the sister is likely to have a commitment, drive and aptitude to complete further studies and advance her [Occupation 2] career similar to the applicant.
The Tribunal considers there is no evidence before it to support a conclusion that if the applicant returned to Fiji, she would be subjected to discrimination and harm in the pursuit of her [Occupation 2] career or for any other reason such as to invoke Australia’s protection obligations under the Act.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
23.1.The applicant is a citizen of Fiji and a non-citizen in Australia.
23.2.The applicant’s claims for protection do not satisfy the refugee or complementary protection criteria set out in the applicable law.
23.3.If the applicant is returned to Fiji, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
23.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk the applicant will suffer significant harm.
CONSIDERATION OF REFERRAL FOR MINISTERIAL INTERVENTION
The Tribunal considers that the circumstances of this case are sufficiently unique or exceptional to warrant a referral to the Minister for possible consideration of the use of the Minister’s intervention powers, according the criteria set out in the Minister’s guidelines on ministerial powers (ss 351, 417 and 501J of the Act).
The Tribunal notes that:
25.1.The applicant has demonstrated commitment, drive and aptitude in completing further studies and advancing her [Occupation 2] career, including her achievements while in Australia in gaining reciprocal registration and three years’ experience as [a Work sub-sector Occupation 2].
25.2.The applicant’s children are aged [Ages], and have spent four formative years of their lives in Australia.
25.3.The applicant’s current employer has indicated their intention to sponsor a work visa for the applicant.
25.4.The applicant’s husband is completing [an Occupation 3] apprenticeship and is fully employed.
25.5.The applicant, her husband and children have been and remain lawful non-citizens in Australia.
25.6.There is no evidence before the Tribunal to indicate that the applicant, her husband and children would do other than cooperate in ensuring their travel documents are available and valid, and continue to cooperate with the Department and assist with any enquiries.
The Tribunal considers that the applicant’s [Occupation 2] qualifications and skills would be of exceptional benefit to Australia such as to warrant her being permitted to apply for an appropriate skilled employer sponsored work visa notwithstanding having been refused a protection visa.
The Tribunal considers that there are circumstances that bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the two children.
The Tribunal considers it is likely to be in the best interests of the two children for the family to remain in Australia after establishing a connection here over the last four years, building a life, securing training and employment, attending school, and making ties with their community.
CONCLUSIONS
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.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Having concluded that the applicant does not satisfy the criteria in s 36(2)(a) or (aa) of the Act, accordingly, her husband and children do not satisfy the criterion in s 36(2)(b) or (c) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
MemberATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36 Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
ATTACHMENT B
Country Information
The DFAT Country Information report for Fiji dated 27 September 2017 provides (inter alia) that:
3.8 Instances of official discrimination against Indo-Fijians are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.
3.9 In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists. For example, it is common for Indo-Fijians to drink kava (yaqona in Fijian; a plant of Pacific origin with sedative effect and a central role in traditional Fijian ceremonies), and for Fijians to eat curries and to celebrate Diwali. Many Indo-Fijians identify primarily as Fijian and secondarily, or not at all, as Indian. However, there are some Indians who strongly maintain Indian pride and refer to themselves as ‘Indians’. Many Indo-Fijians, particularly in rural areas, speak or understand Fijian.
3.10 Overall, DFAT assesses that Indo-Fijians face a low level of official and societal discrimination based on their race/nationality.
The following country information covers the political situation in Fiji following the change of government in December 2022:
Fiji’s political climate is currently in a significant state of flux. In the December 2022 elections Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years of power in Fiji.1 The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three-party coalition government that includes the Social Democratic Liberal Party (SODELPA) and the PA's political ally, the National Federation Party (NFP).2
It has been only six months since the new government came into power, while former Prime Minister Bainimarama was in power for almost 16 years and ‘wielded extraordinary power over Fiji’.3 The current political climate is characterised by a power struggle between the new prime minister and the former prime minister.4 One academic interviewed on the Australian Broadcasting Corporation’s Pacific Beat program states that the now opposition FijiFirst Party ‘no longer has its roots in the state, it no longer has access to the same resources.’5The new government has a very narrow parliamentary majority, although this has not prevented it from embarking on sweeping changes.6 There have been a large number of key public service position changes7, including the suspension of Fiji's Police Commissioner Sitiveni Qiliho, the Commissioner of the Fiji Corrections Service Francis Kean8 and the Director of Public Prosecutions Christopher Pryde.9
In February 2023 media articles report that former Prime Minister Bainimarama was suspended from parliament after giving a divisive speech in which he called for the military to intervene.10 In March 2023 he resigned from parliament (but remains leader of the FijiFirst Party).11
One day later he was arrested and charged with abuse of office.12 After spending one night in custody he was released on bail.13 There is a pre-trial hearing set for 19 July 2023 and a trial date has been set as 17-28 July 2023.14 Former Attorney General, Aiyaz Sayed-Khaiyum, was also arrested and charged with abuse of office in early May 2023.15 In mid-May 2023 24 politicians from Fiji First were suspended from parliament for breaching political party auditing requirements, leaving Fiji without an opposition.16 Most recently, the suspension has been lifted after the party submitted account records.17
The Economist Intelligence Unit (EIU) assesses that Prime Minister Rabuka’s strategy of ‘quickly moving loyalists into key roles in the bureaucracy’ and taking ‘measures designed to weaken the main opposition’ is high risk.18The armed forces commander issued a statement of concern in January, stating that the new government was acting too quickly and with disregard for due process. He was rebuked and has since publicly expressed support for the new government.19 However, the possibility of another military coup has been raised by analysts.20 The EIU states that ‘if confrontation between the coalition and the opposition escalates to the point of impeding normal functioning of government, there will be a moderate risk of military intervention.’21 Conversely, the Australian Institute of International Affairs (AIIA) states that ‘Fijian officials, business leaders, citizens, foreign diplomats, and observers are cautiously optimistic that Rabuka’s coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji’s democratic institutions.’ 22
Media reports and analysis
The Economist Intelligence Unit (EIU) provides the following brief summary of Fiji’s political climate:
The outlook for Fiji's political stability is deteriorating. The prime minister [sic], Sitiveni Rabuka of the People's Alliance (PA), came to power following the December 2022 general election. He leads a three[1]party coalition government that includes the Social Democratic Liberal Party (SODELPA) and the PA's political ally, the National Federation Party (NFP). The coalition has only a slim parliamentary majority, suggesting that it will be vulnerable to collapse if the coalition parties lacked consensus on important policy decisions. Mr Rabuka seems keen to pursue a high-risk strategy of quickly moving loyalists into key roles in the bureaucracy, and to take measures designed to weaken the main opposition, the Fiji First Party (FFP). The suspension and resignation of the former prime minister and outgoing FFP leader, Voreqe (Frank) Bainimarama, from parliament have raised concerns about political stability in Fiji. The absence of a strong opposition leader will undermine scrutiny on policymaking. EIU believes that if confrontation between the coalition and the opposition escalates to the point of impeding normal functioning of government, there will be a moderate risk of military intervention.23
A 22 May 2023 article on the Australian Broadcasting Corporation’s Pacific Beat program reports on the suspension of 24 politicians from Fiji First (Frank Bainimarama’s political party). The article notes the claim that Fiji First ‘no longer has its roots in the state, it no longer has access to the same resources:
Twenty-four politicians from Fiji's main opposition party, Fiji First, have been barred from sitting in parliament after its registration was suspended, the parliament's speaker said on Thursday.
Four Fiji political parties were suspended for 30 days on Wednesday for not submitting audited accounts.
Dr Jon Fraenkel, a professor of comparative politics at the University of Victoria in New Zealand, said the suspensions resulted from laws passed by Fiji First itself when it was in power.
He said democracy in the country was being "tested" due to these suspensions, but not as much as it was during former prime minister [sic] Frank Bainimarama's leadership.
"[Fiji First Party] no longer has its roots in the state, it no longer has access to the same resources," he said."There have been missteps that show it's going to be a little bit uncertain how it's going to operate in the future as an opposition party."24
In March 2023, The Australian Institute of International Affairs (AIIA) provided the following assessment of Fiji’s new government:
For the first time in 16 years, Fiji has a new government. The coalition has an extremely ambitious agenda, and each day brings it one step closer to long-term stability.
On 14 December 2022, Fijians went to the polls to elect the 55 members of Parliament. All of Fiji is one constituency, and parties that receive more than five percent of the vote are allocated seats in Parliament. FijiFirst, the party of Frank Bainimarama who had served as prime minister since 2007, won 26 seats – just shy of the 28 needed to secure another term in power. This left the door open for the People’s Alliance and National Federation Party, coalition partners who combined also won 26 seats. The “kingmaker” became the Social Democratic Liberal Party (SODELPA), whose three seats would decide the majority coalition. SODELPA ultimately chose to form government with the People’s Alliance-National Federation Party coalition, and on 24 December, Sitiveni Rabuka was elected prime minister. Bainimarama conceded defeat.
On the surface, little about this scenario seems out of the ordinary for a country with a parliamentary system of government. For Fiji, however, the 2022 elections and their aftermath were historic. Since it became a republic in 1970, most changes of government in Fiji have occurred via coup.
There were immediate concerns within Fiji and overseas about the vulnerability of a coalition government to a coup, fuelled in large part by new electoral laws introduced in 2021 designed to keep FijiFirst in power and Bainimarama’s reluctance to concede defeat. Now, however, Fijian officials, business leaders, citizens, foreign diplomats, and observers are cautiously optimistic that Rabuka’s coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji’s democratic institutions.
An ambitious agenda
The coalition government has hit the ground running. Rabuka, the leader of the 1987 coup, promised in his inauguration speech that he is a leader for all Fijians, noting that regardless of ethnic or cultural identity, “we all belong here.” The new government is working hard to weed out corruption, increase transparency, and ensure political appointees and community leaders are chosen on merit rather than their connections to elected officials.
People who were deported, threatened, or forced to leave Fiji for speaking out against the previous government are being granted permission to return, and they are doing so. The coalition is eager to mend ties with the University of the South Pacific, whose largest campus is located in Suva and to which the Fijian government owes FJ$74 million. The return of Vice-Chancellor Pal Ahluwalia to Fiji was widely celebrated, as was the return of Padma Lal with her exiled husband Professor Brij Lal’s ashes.
There are also plans to reinstate the Great Council of Chiefs, a group of Indigenous Fijian representatives that serve as advisors to the government on matters affecting Fiji’s iTaukei (Indigenous) population. Rabuka was a life member of the council until it was disbanded in 2012. Reactions to its reinstatement are mixed. On the one hand, a new Great Council of Chiefs could provide critical advice on how legislation will specifically affect the iTaukei population, in much the same way that a Voice to Parliament is expected to do in Australia. On the other hand, the Great Council of Chiefs was established in the British colonial era and is mired in colonial legacy.
As China increasingly makes its presence felt in the Pacific, Rabuka has positioned himself as a proponent of solidarity among the Pacific Island states. His first overseas trip as prime minister was to Kiribati to conclude the negotiations to bring the last remaining holdout from the Micronesian bloc back into the Pacific Islands Forum after the 2021 consternation. Rabuka also cancelled an arrangement with the Chinese police, which many Western observers considered a clear signal of Fiji’s alignment with traditional partners. The reality is more moderate, as Chinese investors and development agencies have a robust presence in Fiji’s economy. Rabuka has clearly expressed a desire to work more closely with traditional partners, including Australia and the UK, without positioning Fiji as explicitly “anti-China.”Moving forward
A major test of the new government’s effectiveness will be delivering on its election promise to hold local elections. Tentatively scheduled for late 2023, these will be the first local elections since FijiFirst abolished the mayoral system and installed town representatives 16 years ago. Bringing the elections to fruition will be a major accomplishment for the coalition and a clear signal of democratic progress.
Constitutional reform is also sorely needed after 16 years of autocratic creep, limiting freedoms, and centralising political control. There is much speculation and discussion about what could, should, and eventually would end up in a new constitution, as well as whether a new constitution is needed at all. Fiji has seen as many constitutions as coups in the past several decades. Under the present constitution, the military can intervene in government affairs whenever it wants under its mandate to look after the wellbeing of the Fijian people. While Major-General Jone Kalouniwai stated before the election that the military would respect the results, and this has been heeded to date, the spectre of future military intervention looms large.
While there is much to celebrate about the new government’s actions so far and plans for the future, greater emphasis needs to be placed on promoting diversity in politics and women’s participation in elections. The proportion of women members of Parliament has halved, with women now accounting for less than ten percent of members. While there are strong initiatives in place to involve women and marginalised people in politics, structural elements in Fiji’s electoral system create barriers to their election. In addition, the 2021 electoral reforms required voters to register using their birth names, which disenfranchised a significant number of women who assumed their spouse’s name upon marriage.
It will be interesting to see whether the forthcoming local elections mirror the national elections in terms of diversity, or whether we will see more women and other historically marginalised people assume leadership positions. Looking ahead to the 2026 elections and beyond, the coalition’s democratic reforms should include the implementation of gender-inclusive electoral policies.As Fiji continues opening up to the post-COVID-19 world and the Rabuka coalition government settles into its authority, the future appears bright for Fijians. It is now the responsibility of policymakers to deliver on their promises and ensure they continue to conscientiously listen to the concerns of the Fijian public.25
A 28 February 2023 article in The Diplomat states:
Despite only having won by the slimmest of margins and with the “People’s Coalition Government,” as Rabuka’s government calls itself, being delicately held together despite long histories of personal and political animus, the new government wasted no time in systematically dismantling Bainimarama’s extensive power base. Multiple key public service appointments made by Bainimarama’s government were overturned in rapid succession (“resign or be removed” was the ultimatum issued by the new government),and investigations were launched into leading figures of Bainimarama’s government, including his former deputy who effectively ruled Fiji with him for 16 years, Aiyaz Sayed Khaiyum. Sayed Khaiyum’s place in the new parliament was also jeopardized when he violated constitutional rules of his own making.
The pace of the political reckoning in the first two weeks of 2023 prompted the commander of the RFMF, Major General Jone Kalouniwai, to issue a troubling statement. Kalouniwai reminded the new government of the RFMF’s constitutional obligation to ensure the “well-being” of all Fijians. Kalouniwai was rebuked, and although he publicly demonstrated loyalty to the new government, his comment still shadows events given Fiji’s history of coups (there have been four coups since 1987). However, what has transpired since indicates that Kalouniwai has decided not to go down that disastrous route.26
The Australian Strategic Policy Institute (ASPI) provided the following analysis on 8 February 2023:
It’s been just over a month and a half since Fiji’s new coalition government, headed by former coup leader Sitiveni Rabuka, was sworn in to parliament. The December election was a tight race, as many had predicted, and Rabuka’s former party, the Social Democratic Liberal Party (SODELPA), was dubbed ‘kingmaker’ when its eventual support for Rabuka ended Frank Bainimarama’s 16-year premiership. Australia’s relationship with the new government appears to be positive, but we must ensure our support continues to be Fiji-focused regardless of who’s leading the country.
Rabuka and his coalition have hit the ground running, making sweeping changes that have caused a few tense moments. He is loosening a restrictive media act, and Fiji Broadcasting Corporation CEO Riyaz Sayed-Khaiyum (a brother of former attorney-general Aiyaz Sayed-Khaiyum) has been removed. The government has welcomed back exiled officials and is reviewing diplomatic appointments to ensure they represent the needs of the government. Rabuka has also set up the Mercy Commission, which was written into the 2013 constitution but never convened, to review the cases of those who have been incarcerated for a very long time. That process may lead to the release from prison of yet another coup instigator, George Speight.
Some are concerned that in moving so quickly the coalition may leave itself open to having its changes invalidated if the correct legal processes aren’t followed. Others believe that the new government is going too far too fast. The commander of the Republic of Fiji Military Forces, Major General Jone Kalouniwai, publicly outlined his concerns with the new government, citing his responsibility to do so given the military’s self-proclaimed role as ‘guardian’ under the Fijian constitution.After 16 years of one government, there’s little cabinet experience in the coalition. Rabuka has admitted that some mistakes will be made—or, as Home Affairs Minister Pio Tikoduadua said after a damage[1]control meeting with Kalouniwai, ‘We are all learning.’ It was a moment of tension, but Rabuka and Tikoduadua settled the simmering pot before it boiled over. With many campaign promises still to be delivered, however, there could still be more sticking points to come.
As would be expected, the opposition—namely, Bainimarama and his right-hand man Aiyaz Sayed-Khaiyum—wasted no time in ridiculing the government’s every move. Bainimarama could seize power through a motion of no confidence, so Rabuka will have to ensure he keeps SODELPA onside after initially rewarding the party with key ministries and positions. But Bainimarama’s absence hasn’t necessarily left the gaping hole that it could have. In fact, Rabuka has returned to power relatively seamlessly after 23 years.
…
Looking further out in the region, last week Rabuka announced that he will terminate the memorandum of understanding between the Fiji Police Force and China’s Ministry of Public Security that has been in place since 2011. He explained that there was no need for the policing relationship to continue because the two countries’ ‘systems of democracy and justice systems are different’. In the meantime, both Rabuka and Tikoduadua have expressed a desire to deepen Fiji’s relationship with Australia, New Zealand and the US based on their having similar systems.
At the same time, police commissioner Sitiveni Qiliho was suspended from his role, as was the commissioner of corrections, Francis Kean. Both have strong ties to Bainimarama—Kean is the former PM’s brother-in-law—and questionable backgrounds to say the least. China’s policing assistance in the Pacific, which Qiliho was closely involved with for the past six years, has vastly more authoritarian characteristics than that of Australia or New Zealand. The decisions to remove the two commissioners and tear up the agreement with China were partly to demonstrate this change to a domestic audience and partly to send a clear signal to foreign partners about where Fiji’s values lie, and that aid and assistance must align with those values.It’s a welcome statement for Australia and New Zealand, which are also seeking to highlight the values shared among all countries in the Pacific neighbourhood. In a joint visit to Fiji this week by the Australian and New Zealand defence chiefs, New Zealand’s CDF, Air Marshal Kevin Short, reiterated the importance of respecting Fiji’s values and ways of operating. Australia will now need to ensure that the new Fijian government is not left unable to fill any capability gaps that might arise in the Fiji Police Force.
Even though the policing agreement has been terminated, China is unlikely to turn away from Fiji. Instead, Beijing will probably continue to aggressively pursue friendship and look for other areas to deepen the relationship with the new government. Even Tikoduadua’s decision to meet with Taipei before Beijing won’t halt the Chinese Communist Party’s advances. Rabuka’s government will have to find a way to hold to its values without sacrificing a large economic partner.
…
As Rabuka’s coalition powers ahead, intent on moving past the policies of the previous government, there remains a risk of discontent if the population feels left behind. Australia must remain focused on supporting Fiji as a whole, and find a delicate balance between supporting the democratising instincts of the new government and not sullying the record of the previous prime minister, with whom we built a close partnership, and who might return.27A 15 March 2023 World Socialist Web Site (WSWS) article reports on the power struggle between the new and former prime ministers:
The installation of the new government has seen an ongoing power struggle between Bainimarama and Prime Minister Sitiveni Rabuka, another former military coup leader, and the contesting factions of the divided ruling elite that back them. Rabuka heads a fragile three-party coalition including his People’s Alliance Party, the National Federation Party and the Social Democratic Liberal Party (SODELPA)—a minority party holding the balance of power with just three MPs.
The swirling political crisis escalated in January when the military head Major General Jone Kalouniwai released an extraordinary media statement declaring that the armed forces had “quietly observed with growing concern… the ambition and speed of the government,” claiming it had “the potential to bring about fateful, long-term national security consequences.” Under Section 131 of the 2013 Constitution, drawn up by Bainimarama, the military has unrestrained powers to ensure the “safety and security of the country”.
Two weeks after his suspension, Bainimarama last Wednesday abruptly announced his resignation from parliament “with immediate effect” but vowed to remain leader of his FijiFirst Party. He denounced his “unwarranted and most certainly unjustified” suspension and declared he would “engage more actively outside parliament with our FijiFirst supporters and the growing number of unsatisfied Fijians” disillusioned with the government. Rabuka has quickly moved to replace key personnel in the civil service seen as Bainimarama’s political appointees. These include Qiliho, a former military officer with connections to previous coups, and corrections services boss Francis Kean. Both ran infamously brutal and corrupt operations under Bainimarama.28
The article further states:
Rabuka however, has no less of an authoritarian history than Bainimarama. He ruled as prime minister from 1992 to 1999 after leading two military coups in 1987 to boost the position of ethnic Fijians against Indo-Fijians, many of whom fled the country.
Rabuka is now reviving contentious communalist politics, aimed at cementing the position of the ethnic iTaukei Fijian elite at the expense of Indo-Fijians and the working class, including the re-establishment of the privileged Great Council of Chiefs. That body was shut down in 2012 by Bainimarama, who accused it of exacerbating racial divisions “to the detriment of Fiji’s pursuit of a common and equal citizenry.”Rabuka’s positioning is a response to fears within the ruling elite of simmering anger in the working class. Fiji’s workers are suffering skyrocketing inflation, the destruction of thousands of jobs, and fractured supply chains for food, energy and basic goods. The poverty rate is nearly 30 percent and the social catastrophe has been exacerbated by the ongoing COVID-19 pandemic. As they are internationally, more austerity measures are on the way.
Should Rabuka’s strategy fail to contain widespread social struggles, the army still stands waiting in the wings.29Footnotes
1 'Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023, 20230619092820 ; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for International Policy), 14 February 2023
2 'Fiji - In brief', Economist Intelligence Unit, n.d.
3 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023
4 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023; 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023
5 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023
6 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023; 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023
7 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023
8 'Fijian women's rights activists welcome suspension of police chief, prison boss', Australian Broadcasting Corporation (ABC): Pacific Beat, 30 January 2023
9 'Fiji's top prosecutor suspended for alleged misconduct', Radio New Zealand (RNZ), 14 April 2023
10 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023. And 'Fiji's former prime minister Frank Bainimarama thrown out of parliament, suspended for three years after divisive speech', Australian Broadcasting Corporation (ABC) (News), 17 February 2023; 'Fiji opposition leader suspended from parliament for sedition', Guardian (Unlimited) (UK), 17 February 2023
11 'Fiji's former prime minister Frank Bainimarama resigns from parliament, will not quit politics', Australian Broadcasting Corporation (ABC) (News), 08 March 2023
12 'Fiji's former prime minister Frank Bainimarama charged with abuse of office, to spend the night in custody', ABC News (Australia), 09 March 2023
13 'Fiji’s former leader Frank Bainimarama released on bail', Associated Press (AP), 10 March 2023; 'Fiji's Bainimarama granted bail, ordered to remain in country', Radio New Zealand (RNZ), 10 March 2023
14 'Trial date set for ex-Fiji PM Bainimarama and suspended police chief Qiliho', Radio New Zealand (RNZ), 11 May 2023
15 'Fiji's former attorney-general released on bail', Radio New Zealand (RNZ), 02 May 2023, 20230619100309
16 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023; 'FijiFirst angry over suspension by Acting Registrar of Political Parties', Radio New Zealand (RNZ), 19 May 2023; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023
17 'FijiFirst party complies with Act', Fiji Times, The, 10 June 2023
18 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
19 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023; 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023; 'Rapid changes in Fiji require a delicate balance of support', Australian Strategic Policy Institute, 08 February 2023
20 'The number behind Fiji’s coup culture', Australian Strategic Policy Institute, 01 February 2023
21 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
22 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023
23 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
24 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023
25 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023
26 'In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023
27 'Rapid changes in Fiji require a delicate balance of support', Australian Strategic Policy Institute, 08 February 2023
28 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023
29 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023
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