1931599 (Refugee)

1931599 (Refugee) [2023] AATA 1132 (6 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1931599
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Wayne Pennell
DATE:6 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 06 February 2023 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – freedom of expression – social media activities – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision was provided to the applicant on 24 October 2019.
The applicants who claim to be citizens of Fiji applied for protection visas.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Fiji, there was a real risk they would suffer significant harm. The delegate refused to grant the visas[3] on the basis that the applicants were not refugees as defined by the Act[4] and therefore they were not persons in respect of whom Australia has protection obligations.[5]
[2]The applicant’s application was received by the Department of Home Affairs on 17 January 2019.
[3]The delegate’s refusal was made on 24 October 2019.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicants were unrepresented in relation to the review, and they filed an application with the Tribunal for a review of the delegate’s decision.[6] Accompanying that application was a copy of the delegate’s decision. At a subsequent time, the Tribunal wrote to the applicants advising them that it had considered all the material relating to their application but was unable to make a favourable decision on that information alone.[7]
[6]The applicant’s review application was filed with the Tribunal on 6 November 2019.
[7]The Tribunal advised the applicant on 6 December 2022.
The Tribunal invited the applicants to give oral evidence and present arguments at a hearing.[8]They subsequently advised the Tribunal that they would appear at the review hearing to give oral evidence and present arguments.
[8]The Tribunal’s review hearing was listed for 2 February 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act and the Migration Regulations1994 (Cth).[9] An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] That is, the applicant 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.
[9]Migration Act1958 (Cth), s 36; Migration Regulations1994 (Cth), Regulation 2.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]
[19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANTS’ IDENTITY
The applicants claim to be citizens of Fiji and they provided a copy of their passports to authenticate this claim.[21] The Tribunal accepts the applicants’ identity and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is the applicants’ country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]The primary applicant’s passport was issued [in] 2016 and the second applicant’s passports was issued [in] 2018.
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[24] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (‘the Department’), and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[24]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANTS’ CLAIMS AND THE EVIDENCE
The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Fiji, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[25]
[25]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicants claim they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicants claim they face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicants to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicants’ case for them. It is their responsibility to specify all particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of their claims, or to establish or assist in establishing the claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicants.[27]
[26]Migration Act 1958 (Cth), s 5AAA.
[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
APPLICANTS’ BACKGROUND
[The primary applicant] and [the second applicant] originate from Fiji. They were married [in] October 2007, and they have three children aged [age], [age] and [age]. Both applicants completed year [level] of their education and they described themselves as Christians of the Uniting Church faith.
The applicants were granted tourist visas on 1 October 2018, and they travelled to Australia for a three month holiday, arriving [in] October 2018. When they travelled to Australia, the applicants’ children did not travel with them, instead they were left in the care of their paternal grandparents.
When the applicants lived in Fiji, the primary applicant worked as a [Occupation 1] and the second applicant was employed in [Industry 1]. Since their arrival in Australia, the primary applicant has been employed as a [Occupation 2] in a [workplace] and the second applicant is employed as an [Occupation 3] in [a different workplace].
APPLICANTS’ CLAIMS AND EVIDENCE TO SUPPORT THE CLAIMS
In support of the applicants’ claims, the primary applicant provided a lengthy statement which outlined the particulars of the claims. It is noted by the Tribunal that the statement accompanied the applicants’ protection visa application when that application was lodged with the Department.
The Tribunal recognises that contained within the application was an explanation that the applicants had the opportunity when lodging their application to provide all of the details of the protection claims relied upon. The Tribunal also notes that on 29 January 2019, the delegate wrote to the applicants and acknowledged the receipt of their application. In doing that, the delegate advised the applicants of the opportunity to provide additional information relating to their claims prior to the delegate making the primary decision. The Tribunal notes that at the time of the delegate making the primary decision, no further information or evidence was provided.
In undertaking an assessment of the applicants’ application, the Tribunal notes that the second applicant does not have any claims. The claims relied upon are those advocated by the primary applicant.
In respect to the primary applicant’s claims, he claimed that within Fiji, he was not able to speak out and express a political view or criticise the Fijian government. If a political opinion was expressed or criticism was made of the government, then there were reprisals by being arrested and victimised by the police. Although he does not claim that he was ever arrested or victimised by the police when he lived in Fiji, he said that not being able to express a point of view about the Fijian government caused him to act aggressively and violently towards his family. However, the Tribunal observes that he has not produced any evidence to support the claim that the Fiji government did anything in a way that caused him to be violent to his family, and nor did he provide any evidence that he actually displayed violent behaviour towards his family.
During the hearing the primary applicant was asked if he suffered a psychological condition because of the issues he complained about. His response was that his eye sight was affected because of the stress he had been placed under living in Fiji. When this evidence was explored further it seems that he consulted a doctor about his eyesight. He was then referred to a specialist who prescribed him spectacles to allow him to clearly see into the distance. There was no evidence provided by the applicants to validate the claim that the primary applicant’s circumstances in Fiji caused him to act aggressively or to suffer any related psychological symptoms or that it affected hi eyesight. The Tribunal does not accept this claim on the basis that it is vague, weak and tenuous.
The primary applicant went on to claim that since coming to Australia he has been able to openly criticise the Fiji government using an online chat forum such as Facebook. He even enjoyed the freedom of attending a political protest in Sydney when the former Fijian Prime Minister, Frank Bainimarama visited. During the hearing he showed the Tribunal a video recording from his social media page of that event. The video showed a number of people in a carpark shouting words of protest at a motorcade which was parked some distance away. At a subsequent time, he provided to the Tribunal screen shots from that video recording. The Tribunal accepts that the primary applicant attended that protest.
The primary applicant went on to claim that after coming to Australia with his wife for a holiday, he realised his life span would be shortened if he remained in Fiji because the situation in Fiji was affecting him psychologically. It is the Tribunal’s view that there was no evidence provided by the applicants to validate the claim that the primary applicant’s lifespan would have been shortened if he remained in Fiji. The claim is respectfully rejected by the Tribunal as it is vague, weak and tenuous.
The primary applicant went on to tell the Tribunal that within his workplace in Fiji, people would talk about the negative policies of the Fijian government. However, he was wary to speak out in case he was reported to the police for having an adverse political opinion about the government. He did not know who to trust in Fiji. He claimed that since coming to Australia he has been able to freely take part in discussions about the Fijian government without fear. This has greatly helped his mood.
When considering the claims that in Fiji, the primary applicant was reluctant to publically express an opinion about the Fijian government, the Tribunal acknowledges and accepts that he was reluctant to express or demonstrate a political view or opinion about the Fijian government for fear of reprisal from the authorities.
However, notwithstanding those fears held by the primary applicant, the Tribunal is aware of various country information reports in respect to the current human rights situation in Fiji. Those country information reports indicate a generally improving human rights situation with the Fijian authorities ceasing its practice of detaining, and in many cases abusing, persons who are deemed critics of the government.[28]
[28]United States of America Department of State 2012 Country reports on human rights practices in Fiji, dated 19 April 2013; United States of America Department of State, Bureau of Democracy, Human Rights, and Labor Country Reports on Human Rights Practices for 2013 in Fiji, dated 27 February 2014.
The Fijian constitution, which came into force on 6 September 2013, provides for protection against arbitrary arrest and detention and the right of any person to challenge the lawfulness of their arrest in court. The Fijian government generally respects these requirements.[29] The Fijian constitution also guarantees the Fijian citizens the right to form or join a political party; to participate in a political party’s activities; or recruit members on behalf of a political party; or to campaign for a political party, candidate or cause.[30]
[29]United States Department of State Country, Bureau of Democracy, Human Rights, and Labor 2018 report on human rights practices for 2018 – Fiji, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, section 1, page 3.
[30]Constitution of the Republic of Fiji (Promulgation) Decree 2013, Government of Fiji Gazette Vol 14 No. 80, dated 6 September 2013, section 23.
In 2014, a general election was held, and military rule was removed, and there was a greater tolerance by the government of political gatherings. However, those gatherings could be the subject of government limitations so far matters relating to national security, public safety, public order, public morality, public health, and the orderly conduct of elections.[31]
[31]United States Department of State, Bureau of Democracy, Human Rights, and Labor report; Freedom in the World 2018. Fiji’, 5 October 2018, page 2; United States Department of State, Bureau of Democracy, Human Rights, and Labor Country Reports on Human Rights Practices for 2018, Fiji’, 13 March 2019, page 8.
When the recent December 2022 election results were discussed with the applicants, they suggested that it has been a good thing that there has been a change of government with a new leader in parliament, however they were uncertain if that change will have any positive impact in the country’s economy or the way in which the citizens are treated.
The country information contained within the DFAT report on Fiji provides that politics in Fiji is no longer characterised by the unrest of the past. It was reported that the 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’.[32] Recently, in December 2022 a general election was held and there is country information which suggests that the election was calm and orderly. The 2022 election results were close, indicating a diversity of views among Fijian voters.
[32]The DFAT Country Information Report, Fiji, dated 20 May 2022, page 15 , paragraph 3.32.

A further claim raised by the primary applicant at the review hearing related to a Bill put before the Fijian Parliament. The applicant claimed that this Bill gave unfettered power to the Fijian government to take away the land belonging to the indigenous Fijians. When questioned about his knowledge of this Bill, it is the Tribunal’s view that apart from knowing the name of the Bill, he knew very little else about it. There is no evidence before the Tribunal as to what the Bill was about, what the intentions or purpose of the Bill were or even if it had passed through parliament and became law.
Contained within the DFAT report on Fiji, is country information which outlines that indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country and is traditionally hierarchical and patrilineal; and structured into a complex system of families, tribes, clans, and confederations of those groups.[33] Indigenous Fijian’s (‘iTaukei’)are the majority ethnic group in Fiji and enjoy significant social, economic and political capital.[34]
[33]The DFAT Country Information Report, Fiji, dated 20 May 2022, page 12, paragraph 3.8
[34]The DFAT Country Information Report, Fiji, dated 20 May 2022, page 12, paragraph 3.10.
The DFAT country information goes on to provide that indigenous Fijians constitute nearly 60 per cent of Fiji’s population. Despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government.[35]
[35]The DFAT Country Information Report, Fiji, dated 27 September 2017, page 10, paragraph 3.12.
All indigenous Fijians are automatically registered by law upon birth into an official Fijian register of native landowners known as the Vola ni Kawa Bula (‘native land register’). The register also verifies access for those listed to indigenous communally owned lands and justifies titleholders within indigenous communities.[36]
[36]The DFAT Country Information Report, Fiji, dated 27 September 2017, page 10, paragraph 2.49.
The country information contained within the DFAT report provides that indigenous Fijian village groups communally hold at least 87 per cent of all land as native land; the Fijian government holds four percent, with the remainder being freehold land held by private companies or individuals.[37] The iTaukei Land Trust Board (TLTB) holds all indigenous land in a statutory trust in accordance with the provisions of the iTaukei Land Act and the TLTB administers the land on behalf of the landowners.[38] The iTaukei Land Trust (Leases and Licenses) Regulations stipulate that any monies received by the board by the way of rents and premiums in respect of the iTaukei land shall be distributed by the board to all living members of the proprietary unit in equal proportion.[39]
[37]The DFAT Country Information Report, Fiji, dated 27 September 2017, page 10, paragraph 2.45.
[38]The DFAT Country Information Report, Fiji, dated 27 September 2017, page 10, paragraph 2.45.
[39]The DFAT Country Information Report, Fiji, dated 27 September 2017, page 10, paragraph 2.47.
The Fijian constitution protects the communal land rights of indigenous Fijians and non-indigenous Fijians only own limited land, with virtually all Indo-Fijian farmers being required to lease land from indigenous landowners.
The DFAT report provides that:
In part to protect the Fijian culture and way of life, early British governors established a ‘native administration’, which entrenched the tribal / hierarchical relationships prevalent in parts of Fiji at the end of the 19th century. Though modified and renamed, much of this administrative system continues to exist today. It consists of an iTaukei Affairs Board (the ‘guardian’ of the Fijian administrative system and other aspects of Fijian custom); an iTaukei Lands Commission (which registers the names of each member of a mataqali, or tribe); the iTaukei Land Trust Board (which manages native land leases); provincial (yasana) councils; and district (tikina) councils. Other elements of the ‘native administration’, such as the Great Council of Chiefs (Bose Levu Vakaturaga) which was once able to appoint Senators, have been disbanded by the interim government in the name of removing indigenous privilege as part of its attempts to de-racialise Fijian politics.[40]
[40]The DFAT Country Information Report, Fiji, dated 27 September 2017, page 10, paragraph 3.13.
The DFAT country information goes on to provide that indigenous Fijians constitute nearly 60 per cent of Fiji’s population. Despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government.[41]
[41]The DFAT Country Information Report, Fiji, dated 27 September 2017, page 10, paragraph 3.12.
In respect to evidence to support his claims, at various times prior to the Tribunal’s review hearing, the primary applicant provided to the Tribunal:
(a)An email dated 8 November 2019 enclosing 12 documents:
·    Certificate of a national criminal history check for the primary applicant;
·    Certificate of a national criminal history check for the second applicant;
·    Rental bond receipt dated 20 April 2019;
·    NRMA certificate of insurance for a vehicle registered to the primary applicant;
·    Pay slip dated 6 November 2019 for the second applicant;
·    Tenancy receipt dated 5 November 2019;
·    Pay slip dated 6 October 2019 for the second applicant;
·    Certificate III in [Qualification 1] dated 19 December 2017 for the second applicant;
·    Record of results from subjects completed in [Qualification 1] by the second applicant;
·    Certificate III in [Qualification 1] dated 19 December 2017 for the second applicant;[42]
[42]This is a duplicate copy of a certificate already enclosed in the email.
·    Photograph showing the primary applicant’s NSW driver licence and high risk work licence; and
·    Medicare card for both applicants.
(b)An email dated 18 November 2019 enclosing a single document:
·    Confirmation of the second applicant’s enrolment in Certificate III in [Qualification 2] conducted by [education provider].
(c)An email dated 20 October 2020 (9:07am) enclosing eight documents:
·    Tax receipt dated 22 July 2020 for the second applicant;
·    Tax receipt dated 6 August 2020 for the primary applicant;
·    Certificate showing progress report for training courses undertaken by the second applicant with [education provider];
·    An offer of employment for the primary applicant to join the staff at [Company 1];
·    Pay slip dated 11 October 2020 for the second applicant;
·    Pay slip dated 27 September 2020 for the second applicant;
·    Photograph showing the second applicant’s employment and student identification cards; and
·    Photograph showing the primary applicant’s NSW driver licence.
(d)An email dated 20 October 2020 (11:34am) enclosing four documents:
·    Residential tenancy agreement for a dwelling in [Suburb 1];
·    NRMA car insurance policy for a vehicle registered to the primary applicant’;
·    NSW certificate of registration for a vehicle registered to the second applicant; and
·    NRMA certificate of insurance for a vehicle registered to the second applicant.
Although the documents outlined above may display evidence of both applicants being employed; and shows that they have undertaken employment related studies along with confirming that they have rented a house and owned a motor vehicle; however, the Tribunal considers that the documents provide no evidence or assistance to any determination as to whether the applicants meet the criteria of refugees as provided for in the Act. The Tribunal has carefully considered the documents when assessing the claims made and having undertaken that analysis, the Tribunal finds that the documents do not provide any probative value to the claim that the applicants have a well-founded fear of persecution should they return to Fiji.
The Tribunal’s concerns about those documents were raised with the applicants during the review hearing. The primary applicant then disclosed that to support their claims, he was in possession of other evidence including comments made by others on [social media]. He was afforded the opportunity to provide that evidence to the Tribunal, along with an explanation of how the evidence was relevant to his claims.
On 3 February 2023, the Tribunal received an email from the primary applicant in which he enclosed 28 documents. In that email, the primary applicant commented:
Submissions, Country information, [social media] Post, photos attached for your action.
1.   Former PM Bainimarama himself assaulted a member of Parliament, Hon Pio Tikoduadua.
2.   Ordinary Itaukei being detained by Police.
3.   Current Commissioner Of Police, choked the late former PM, Laisenia Qarase.
4.   Nine men sustained injuries from brutality and torture by Police Officers.
5.   Another person died from Police brutality.
6.   Police Commissioner assaulted Fiji Born Australian Citizen, the late Professor Brij Lal.
7.   Again another innocent Itaukei was brutality assaulted by the Police. No Justice Prevail
8.   Another act of Thuggies and Brutality done by the Police, they assaulted a Itaukei person and threw him down the bridge.
9.   An ordinary man was assaulted by the Police Officers. An act of thuggery by the Police.
10.   Police Officer brutality assaulted the Bus Driver.
11.   An Itaukei man was assaulted by four police officers.
12.   Man assaulted on the street by two Police Officers.
13.   A 17 year old boy being brutality assaulted, punched ,kicked, torture by the Police Officers which end up lost his life.
14.   No rights for the Landowners(Bill 17) No consent from the Boards.
15.   Fijians Protested against the Fiji Government. Protested done in New Zealand, USA and in Sydney where we both(me, wife) attended in 2019.
Furthermore, I can really assure that there's no hope of living a happy life and safe in Fiji.
When assessing the 28 enclosed documents, what the Tribunal observed was an unclear explanation of how each or all of those documents related to the claims made. Doing the best that it can, the Tribunal has recreated the following description of the individual documents provided by the applicants.
(a)Photograph of a street view showing six people and a number of vehicles. In the center of the photograph a male (with back to camera) has an outstretched arm grabbing the jacket of another man. The photograph bears the date 9 August 2022 with the caption “Assaulted by the PM Josaia Voreqe Bainimarama in the precincts of Parliament…See more”.
(b)A blurred photograph of what appears to be three male persons wearing uniforms with another male person. The group is standing at the rear of a vehicle. The caption on the photograph suggests “Innocent man being Detained by Police Officers”.
(c)An undated screenshot from what appears to be a [social media] post by the profile of [Name 1] with the description “#[description redacted]”.
Shown also in the screen shot was what appeared to be a photograph of a page from a book or a page with the typed words:
after you”
As Driti continued with this verbal attack, I was reminded of the famous words of Shakespeare, ‘the pen is mightier than the sword’. Only this time, the sword seemed to be mightier than the pen.
I tried to speak out but was sworn at and told to shut up. Qiliho, my escort, moved from the other side of the table and grabbed my neck, trying to choke me. I was in pain and if he had continued for much longer, I could have been a goner. He only let go when Driti intervened. This changed the mood of the meeting. For the first time, I saw the human side of Driti.
(d)Screen shot of a post from the Facebook page of Fiji One News dated 22 February 2018. Shown in the screen shot were seven unidentified men standing in a room. The caption of the post said:
The Fiji Police Force has once again landed in hot water with allegations of brutality and torture.
This is after 9 men were allegedly beaten by Police officers in Nadarivatu during an interrogation regarding Marijuana.
The 9 men sustained injuries from the torturous interrogation and were told by the officers not to breathe a word about what they went through.
Jese Tuisinu with more
(e)Screen shot of a Facebook post from the profile of Sundar Admi dated 3 December 2018. Included in the image were three male persons inside a motor vehicle, with the caption:
Another Person died under the watch of our Fiji police. 32 year old Vikram Singh died while transporting to hospital. Under watch of our police department. Lately there is a multiple incident. Let’s see what our new Government And Attorney General does to se if this is fowl play , police brutality. Because Vikram So Benevolence has all his family in America and he basically alone and trusting the police to protect him. Hope this is not a police murder. Hope the doctors whose knowledge and hands are blessed by god do the right things. Our organizations will to do another post mortem if the family wants. The story I read seems like a fowl play.
(f)Photograph of the following caption:
“This is to certify that I, Brij Vilash Lal,
a Fiji born Australian citizen, was  taken in by the Fiji Military to the  Queen Elizabeth Barracks in Nabua,
Fiji, on November 2009. At the
barracks, I was placed in a cell and
interrogated by the then Lt. Col.
Sitivebi Qiliho. He covered my face
with his spit and slapped me
continuously to the point of breaking
my glasses. This ordeal has remained
with me all these years, impossible to
forget. At the end of the interrogation,
he told me that unless I left the
country by the first available flight (to
Australia), my family would have to
fetch my body from the morgue.”
Professor Brij Lal’s affidavit for The
Metropolitan Police, London
(g)Screenshot of a Facebook post on the profile of Aman Ravinda-Singh dated 28 September 2022. In the screen shot is a photograph of a male with an injury to his left eye. Included is the caption:
Human Rights Violence Continue in Fiji –
Another Case of Torture & Brutality
Name of Victim: Mosese Sukabula Vakacegu Rasokini
Those Responsible: Fiji Police from Valelevu Police
Station
Regardless of circumstances – No One is above the
Law.
Sadly torturee and brutality against the people of Fiji
Continues on a daily basis.
#StopTheTortureFijiPolice
#StopTheTortureFijiGovernment
#TorturelsNormalinFijiDictatorship
#IamAWitness
(h)Screenshot of what appears to be a follow on page from the Facebook profile of Aman Ravinda-Singh dated 28 September 2022. Included are five photographs of a male person showing injuries to his face, top lip and the back of his right shoulder. The caption on the page was:
Justice for MOSESE!
‘Help please, I plead for my son [emojis inserted] My son, na
Luvequ Mosese Sukabula Vakacegu Rasokini has been
Brutally assaulted by Valelevu Police Officers today. He
Is till in the custody of the Valelevu Police Station
right now and I am really scared and cdrying for his life
[emojis inserted] Isa na luvequ o cei tale me taqomaki
iko, they haven’t charged him with anything but he has
been bashed up by the Valelevu Police. Please don’t kill my
child,please if anyone can help me [emojis inserted] This is
my plea as a mother, somebody save my boy [emojis inserted]
Please Lord anyone [emojis inserted]
(i)Screenshot of a Facebook page of the profile of Lucy B Tanoa dated 19 April 2020. The screenshot included a photograph of a male person with the caption:
INOKE LAGICERE has been admitted at CWM hosp
in Suva due to the THUGGISH acts done by these
Mobile Police…
They threw him off the Naqia Bridge, Wainibuka
after returning from his plantation with his root
crops…
He landed on dry land which resulted with severe
injuries to his body…
These are acts of brutality done by the Policeman
in Fiji…Who are they trying to impress?
Couldn’t they just give him a warning?
Qiliho your man are THUGS!!
(j)Screenshot of a photograph of two men grappling with another shirtless with the caption:
HUMAN RIGHTS ABUSE IN BROAD DAYLIGHT
Easter Saturday the man in this video was assaulted by
members of the Fiji Police Force in broad daylight on
Suva’s main street.
“He had the bike on the side of the road and was tallying
sales in the notebook and a motorcade with the President
and police commissioner drove by speeding honking etc.
He waved them by with a pen in hand. Because he was
holding a pen the president thought he was giving him the
finger. Next minute the cops return with police
commissioner and start intimidating him asking him if he’s
against the government”
“he was thrown in jail Saturday, Sunday, Monday
and then out Tuesday afternoon. The police are supposed
to release you after 48 hours but nobody wanted to
because they were scared of losing jobs because order
came from other top” (Wife of assaulted man)
There assault in the capital city is an outrageous display of
authoritarian dictatorship that must never be tolerated or
condoned. It is an absolute abuse of human rights.
I want to thank the brave person that had the courage to
record this blatant act of thuggery by authorities.
(k)Screenshot of a Facebook page of the profile of Aman Ravindra-Singh dated 8 June 2022. The screenshot showed three photographs of a police officer grappling with another male. The caption read:
Police Brutality Against the People is an Everyday
Occurrence in Fiji
#IAmAWitness
#StopPoliceBritality
#StopPoliceTorture
#JusticeForTheInnocent
Photo below shows a Police Officer from the Fiji
Police Force doing what he knows best – Breaking
The Law – By Brutally Assaulting a Bus Driver in
Vanua Levu.
(l)Screenshot of a Facebook page of the profile of Pipiana N Jay dated 13 October 2020 with the caption:
I’m not usually the one that do long post but this needs to be shared.
I only heard and read about it but this is the first that this has happened to one of my loved one.
On Saturday night (10/10/20) was the night most people in Fiji were celebrating Fiji Day. This night was the night my younger brother got assaulted by 4   police officers from Nakasi Police Post who are not    in uniform. They dragged him out of the gate of the   house that he was in and beat him up. My brother     tried to defend himself just like anyone will while being beaten.
My parents and I got to know that he was in the   Nakasi Cell on Sunday at exactly 1.30pm after his partner visited him. I decided to go to the station that afternoon. At exactly 4.50pm I reached the station and from the counter you can see where they are detained. The injury was sooo bad that even I could recognise him. His face was swollen, even his gums swells up   that block his nose passage and at this time he was finding it difficult to breathe. His nose was broken and even his knee was swollen as well. I tried to take his pictures but the officers didn’t allow me to.
I asked the lady present what was he charged with and the respond was breaching curfew.
To my surprise I turned to her and asked “breaching curfew within the premises?”
WTH???
(m)Screenshot including a photograph showing what appeared to be a quantity of blood. There is nothing within the screenshot to identify which Facebook post or page came from, or the relevant date. The accompanying caption said:
- to assault a father to a almost 2 year old gorgeous
boy
- to assault the youngest son of my parents
- to assault the Uncle to my son and my nephews and nieces
- to assault a 21 year old young man who is trying to build up his family
- to assault the only guy left in my family that is assisting my parents and I in our small business
This is frustrating, I’ve watched families buried their loved ones from police brutality. My brother is still    alive and I don’t want what happened to my brother to happen to anyone else or to anyone to bury their loved ones from this inhumane treatment
SAY NO TO POLICE BRUTALITY
LETS NOT MAKE THEM SWEEP THIS UNDER THE
CARPET
If you know anyone that can help me in this matter do    let me know.
(n)Screenshot of a Facebook page of the profile of Veronica Malani dated 27 April 2022 with the caption:
police brutality & abuse of police powers.
This is unacceptable police …!!!
Complete violation of our Bill of Rights
evidently illustrated here by the very
institution we should protect our
rights. All
we the ordinary citizens of the Fiji are not protected !!
(o)Screenshot of a Facebook page of Chat (Fiji) which is undated. The screenshot shows a photograph of a two-mile person is wearing uniforms grappling on the ground with a person wearing a singlet. The accompanying caption said:
“Could Be The Next Floyd for Fiji ?”
(p)Screenshot of an unidentified and undated Facebook page showing four photographs of what appears to be a hospital ward. A male version can be seen on a hospital stretcher in two of the photographs. The accompanying caption said:
“Etika Bilo MAtasau from Naigani Batiki
Lomaiviti… 17yrs old was from Suva but was on holidays in Lautoka during easter and was stucked
there coz of the weather.
Info said Police caught up.with for an alleged     offence but still no evidence though and apparently o Friday night at the Lautoka bus station they hustle punched and kicked him around before taking to the station and later tortured him during interrogations before sending him back home. He was bedridden ever since and was vomiting blood till Monday night when
His friendz (in the picture) talking to the emergency     at Lautoka Hospital. He was admitted but passed.on after a short comma on Wednesday soon after the    mum and dad and other Siblings arrived from Suva. This is the image of the real Fiji guys!
And i cursed each of them that does this unhumane act…. MO DOU KAKUA NI KUNE VAKACEGU
VAKADUA ….DOU TAVU KAWACA, LUVENI MANUMANU.
“I really want their names now brother”
(q)Screenshot of an unidentified and undated Facebook page showing images of unknown persons. The accompanying caption said:
RABUKA knew the land was only government TENURE SYSTEM & he still CALLED FOR Nationalization of native Fijian assets because he wanted land laws that took away the rights of indigenous landowners that Bainimarama would later implement after 2006 coup
(r)Screenshot of an unidentified and undated five photographs with the caption “KHAIYUM TO BE ARRESTED!!!!”. The image is further identified by the words US Protest with an accompanying flag of the United State of America. Other photographs in the image show an un-named male person and protest posters bearing the words “KHAIYUM IS FIJIS BOMBMAKER”; “NO ONE IS ABOVE THE LAW KHAIYUM”; “KHAIYUM IS A TERRORIST”.
(s)Screenshot of what appears to be a Facebook page of Unions of Wellington dated 2 May 2019. The screenshot shows a photograph of several people standing outside an unidentified building, with some of the people holding protest banners. One banner displays the words “WE STAND WITH FIJIAN UNIONISTS”.
(t)Screenshot of an image of several people gathered with protest banners. The image is identified by the words:
Fijian reside in Sydney make a huge Protest against Bainimarama Government 2019
(u)Undated photograph of what appears to be the second applicant holding a protest sign with the words:
KHAIYUM STOP ORDERING THE POLICE TO DO YOUR DIRTY WORK
(v)Undated photograph of what appears to be the primary applicant and others holding protest signs with the words:
KHAIYUM IS FIJIS BOMBMAKER
KHAIYUM IS A TERRORIST
(w)Undated photograph of what appears to be other people who were at the same location as the applicants and were carrying protest banners depicting similar slogans as just described.
(x)Undated photograph of the primary applicant showing him with several other people in a carpark area at night in an unidentified location. In the background other people can be seen holding protest banners.
(y)Undated blurred photograph of several people at night in an unidentified location. In the background people can be seen holding protest banners.
(z)Undated photograph of the primary applicant showing him with several other people in a carpark area at night in an unidentified location. In the background other people can be seen holding protest banners.
(aa)Undated photograph of several people in a carpark area at night in an unidentified location. In the background other people can be seen holding protest banners.
(bb)Undated photograph of the primary applicant showing him with several other people in a carpark area at night in an unidentified location. In the background other people can be seen holding protest banners.

The Tribunal has given careful consideration to all of the evidence produce by the applicants. As early indicated in these reasons, the emails and the accompanying documents received by the Tribunal prior to the scheduled hearing carry no weight with respect to the applicants’ claim of having a well-founded fear of returning to Fiji.
In regard to the material emailed to the Tribunal the day following the scheduled hearing, the Tribunal has also given careful consideration to those documents. The Tribunal finds that a vast majority of the screen shots provided by the applicants belong to the Facebook or social media profiles of various other people. The primary applicant told the Tribunal that he had shared that information on his own [social media] profile, however he has not provided to the Tribunal any evidence to show that by him sharing that information as outlined above, this has given him an otherwise imputed political profile.
When carefully assessing and considering the applicants’ claims, and the evidence relied upon, the Tribunal does not accept that the applicants possessed an imputed political profile when they lived in Fiji which was contrary to the laws of Fiji. In the Tribunal’s view, the primary applicant’s claims that he feared to express a view are not supported by the country information available to the Tribunal. The Tribunal prefers and applies greater weight to that country information over the applicant’s evidence when considering the claims.
The Tribunal finds that the applicants have not suffered any harm when they lived in Fiji, and nor do they advocate that any members of their family have suffered harm at the hands of the authorities. Much of their concerns and fears arise from what they read on social media or what has been portrayed in the news. After carefully considering their claims, it is the Tribunal’s view that their fears arise from speculation and assumptions. Although they have provided an abundance of information derived from social media and the internet, mere speculation about the contents of that information cannot establish a well-founded fear. This very principle was determined by the High Court in Minister for Immigration and Ethnic Affairs v Guo Rei Wong where it was found that:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[43]
[43] MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572; CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.
When analysing the applicant’s claims, the Tribunal finds that there is no evidence to support the claims made and there is no real substantial basis to the primary applicant’s claim that he possessed a well-founded fear of persecution. A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[44]
[44]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court preferred the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[45] The question of “real chance” is the test to be applied on an application for a protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[46]
DISCUSSION
[45]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[46]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
Country Information
Contained within the DFAT country information report is a brief overview of the political history of Fiji. Although the country information does not specifically identify the reasons behind each of the four coups which have occurred in Fiji’s recent history, it nevertheless outlines that:
2.2 A Labour-National Federation Party (NFP) coalition government was elected in 1987 with strong backing from both indigenous Fijian (iTaukei) and Indo-Fijian trade unionists. Widespread protests among iTaukei arose and the Government was removed in a coup d’état within weeks. The Governor-General established an interim civil government that again only lasted weeks before another coup d’état led to the dismissal of the Governor-General and the declaration of a Republic.
2.3 Mahendra Chaudry was elected as the country’s first Indo-Fijian Prime Minister in 1999. Ethno-nationalist businessman, George Speight, led another coup d’état in 2000 in which Chaudry and his government were held hostage for 56 days and Indo-Fijian businesses were burned down and looted.
2.4 Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s Fiji First party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia.[47]
[47]The DFAT Country Information Report, Fiji, 20 May 2022, page 6, paragraphs 2.2 – 2.4.
In respect to the current human rights situation in Fiji, on 6 September 2013, Fiji’s constitution came into force, and it provides protection for the Fijian citizens against arbitrary arrest and detention and the right of any person to challenge the lawfulness of their arrest in court. The Fijian government generally respects those requirements.[48] The constitution also guarantees citizens the right to form or join a political party, participate in a political party’s activities or recruit members on its behalf, and campaign for a political party, candidate or cause.[49]
[48]United States Department of State Country, Bureau of Democracy, Human Rights, and Labor 2018 report on human rights practices for 2018 – Fiji, Bureau of Democracy, Human Rights, and Labor, 13 March 2019, section 1, page 3.
[49]Constitution of the Republic of Fiji (Promulgation) Decree 2013, Government of Fiji Gazette Vol 14 No. 80, dated 6 September 2013, section 23.
The Tribunal is aware of country information reports that indicate a generally improving human rights situation in Fiji with the military ceasing its practice of detaining, and in many cases abusing, persons who are deemed critics of the government.[50]
[50]United States of America Department of State 2012 Country reports on human rights practices in Fiji, dated 19/04/2013; United States of America Department of State, Bureau of Democracy, Human Rights, and Labor Country Reports on Human Rights Practices for 2013 in Fiji, dated 27 February 2014.
Following the 2014 general election, military rule was removed and there was a greater tolerance by the government of political gatherings. However, those gatherings could be the subject of government limitations so far matters relating to national security, public safety, public order, public morality, public health, and the orderly conduct of elections.[51]
[51]United States Department of State, Bureau of Democracy, Human Rights, and Labor report; Freedom in the World 2018. Fiji’, 5 October 2018, page 2; United States Department of State, Bureau of Democracy, Human Rights, and Labor Country Reports on Human Rights Practices for 2018, Fiji’, 13 March 2019, page 8.
The DFAT report provides that notwithstanding the relatively small size of Fiji, it has a various vibrant human rights non-government organisations (NGOs) linked to women’s rights, trade unions, environmental activism, religious organisations and health services. Human rights organisations are registered under Fijian legislation and associated decrees. There is some ministerial discretion in the law, for example the Minister can revoke the appointment of NGO officials or refuse registration for an NGO, although the DFAT understands that these provisions are not often used, and that NGOs generally operate freely. The DFAT assessment shows that NGOs and their members are at low risk of official discrimination.[52]
[52]The DFAT country information report, Fiji, dated 20 May 2022, page 16, paragraph 3.42.
There are laws within Fiji relating to the definition of sedition includes criticism of the government, along with a broad prohibition on speech that could damage the economy. There are also laws that authorised the Fijian government to vet all publications. Notwithstanding those laws, the Fijian government allows political gatherings, but just as long as those gatherings do not impact on Fiji’s national security, public safety, public order, public morality, public health, and the orderly conduct of elections.
It is accepted by the Tribunal that Fiji’s history reveals that there have been coups, with the last coup in 2006. The history of Fiji also shows that since the last coup there have been democratic elections, with the most recent elections held in December 2022. Although Frank Bainimarama became Fiji’s Prime Minister after the last coup, the Tribunal does not accept that Fiji had been under any type of dictatorial leadership during that period. The DFAT report provides that:
Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.[53]
[53]The DFAT Country Information Report, Fiji, dated 20/05/2022, page 9, paragraph 2.28.
Conclusion
In assessing the applicants’ claim in respect to them having an imputed political profile, it is the Tribunal findings that they have not provided any tangible or probative evidence to validate their claims and the evidence does not support the hypothesis that a real risk exists whereby they will suffer significant harm or there is a real chance that they would suffer serious harm if they were to return to Fiji.
The Tribunal is of the view that any reasonable assessment based on all the claims raised by the applicants and the evidence they used to support those claims would conclude that there is not a real chance of them being subjected to persecution in Fiji for any of the reasons provided in section 5J(1)(a) of the Act.
Therefore, the Tribunal does not accept that the applicants are refugees as defined in section 5H of the Act, and nor have the applicants satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to them.
Refugee findings
The Tribunal has carefully considered the applicants’ claims that they have a well-founded fear that if they returned to Fiji, they will be persecuted because they cannot outwardly express their opinions about the Fijian government; and they had attended political protests which raised their imputed political profiles. They also claim that they cannot relocate within Fiji for protection because the issue they complained of exists all over Fiji. They claim that they could not be protected within Fiji, and even if they did relocate to another locality within Fiji, they would still experience harm because the matters they complain of are spread all across Fiji. The Tribunal was told by the applicants that they had lived and worked in Fiji, and they had not experienced any harm when living there. The Tribunal finds that these claims are vague, weak and tenuous and they were not accepted, and the Tribunal rejects them.
For completeness, earlier in these reasons the Tribunal outlined its findings and rejected the applicants’ claims. Having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicants’ evidence, the Tribunal finds that there is not a real chance that the applicants would suffer serious harm because of any of the alleged claims.
The Tribunal also finds that based on the facts, features and circumstances of the applicants’ case, they are not likely to be persecuted or imprisoned for any of the claims they made; and they do not face a real chance of serious harm.
Complementary protection considerations
The Tribunal has considered the applicants’ claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed to Fiji, there is a real risk that they will suffer significant harm.
Having already concluded the applicants do not meet the refugee criterion as provided by the Act,[54] the Tribunal has considered the alternative criterion.[55] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed to Fiji, there is a real risk that they will suffer significant harm as it is defined in the Act.[56]
[54]Migration Act 1958 (Cth), s 36(2)(a).
[55]Migration Act 1958 (Cth), s 36(2)(aa).
[56]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicants would suffer significant harm for any of the reasons they claim if they returned to Fiji. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[57]
[57]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The Tribunal notes the applicants claim that because of their alleged imputed political profile, if they returned to Fiji they will harmed, although they do not claim that they previously suffered harm within Fiji. Earlier in these reasons, the Tribunal discussed the applicant’s claim that they possessed a well-founded fear of persecution if they returned to Fiji, and this claim has been rejected. The Tribunal does not accept that they will face a real risk of significant harm in Fiji for the reasons they claim.
Having considered all the applicants’ claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if they returned to Fiji now or in the reasonably foreseeable future they will be arbitrarily deprived of life; the death penalty will be carried out on them; they will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will they be subjected to degrading treatment or punishment.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicants, the Tribunal finds that there is not a real chance they will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that their fear of persecution is not well-founded as required by section 5J of the Act and, therefore, they are not refugees within the meaning of section 5H of the Act.
Conclusion: complementary protection criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicants, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, they will be exposed to a real risk of suffering significant harm.
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Having concluded that the applicants do not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicants satisfy section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicants do not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Wayne Pennell
Senior Member

Attachment - Extract from Migration Act 1958 (Cth)
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 1132

6 February 2023

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Immigration

Administrative Law

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