1932312 (Refugee)

1932312 (Refugee) [2023] AATA 4398 (12 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’)
APPLICANT’S REPRESENTATIVE:Unrepresented
CASE NUMBER: 1932312

COUNTRY OF REFERENCE: Fiji
MEMBER:Kate Chapple
DATE:12 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.

Statement made on 12 October 2023 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – particular social group – imputed political opinion – teachers – professional restrictions – contract employment – financial hardship – returned asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application dated 5 April 2019.
Applicant’s submission dated 13 November 2019.
Letter of commendation regarding the applicant from the [Professional Association 1] dated 11 January 2019.
Letter of commendation regarding the applicant from [Employer 1] dated 15 February 2019.
Applicant’s Certificate of Queensland Teacher education.
Applicant’s various education and training certificates of completion.
Letter from the [Professional Association 2] to former Fijian prime minister dated [in] January 2019.
Letter from the [Professional Association 1] to former Fijian prime minister dated [later in] January 2019.
Various opinion and news reports dated 2019 relating to the political situation in Fiji and claims by teachers.
Other departmental records:
10.1.Decision record relating to the delegate’s refusal decision.
10.2.Case file.
10.3.Internal records relating to the applicant.
Application for review
The Tribunal wrote to the applicant inviting him to attend a hearing on 11 October 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal:
12.1.Confirmation that the applicant intended to participate in the hearing with the assistance of an interpreter.
12.2.Further submission attaching news reports (2020-2023), country reports (2000, 2014, 2016), and response to [Official A] from [Professional Association 3] dated 1 February 2022.
12.3.Letter of support in relation to the applicant from acting principal of [Employer 2] dated 5 September 2023.
12.4.Letter of support in relation to the applicant from [Official B] dated 8 September 2023.
12.5.Letter of support in relation to the applicant from [Representative A] dated 30 August 2023.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted in person on 11 October 2023, with the assistance of an interpreter (via video link) in the Fijian and English languages. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
14.1.The applicant, a native Fijian in [age range], lived all his life in Fijian before coming to Australia. His wife and [children] (aged, [respective ages]) live in Fiji. The youngest is [studying], the eldest [works for a specified employer], and the [others] are [studying elsewhere]. His wife isn’t in paid employment. The applicant supports the family from his teacher’s salary in Australia.
14.2.The applicant was a teacher for 24 years in Fiji. He experienced many challenges because he couldn’t adequately support his family on the wages he earned, and he was posted to rural village schools, which were isolated and under-resourced. He had [number] transfers in 24 years. The transfers were disruptive to his family, especially when the children reached high school and needed to be in the city and close to facilities. These challenges were faced by all teachers. There were however opportunities, after having completed teaching postings in rural areas, to upgrade your qualifications and apply to teach in an urban area.
14.3.The applicant held positions as [Official C] of the [Professional Association 1] in two different districts. His role was to convene the monthly meetings, get feedback from teachers in the district and make a report to the Association’s headquarters, which would be the basis of any submissions to the Ministry of Education. He often reported complaints by teachers about the late payment of wages in rural schools and the interpersonal conflict in village communities. Under the previous government in Fiji, it always took a long time to have issues addressed.
14.4.The main challenge for the applicant was trying to support the family and get the children educated on one income. As they got older, he struggled to meet the expenses. He’d also bought a property, but found it difficult to make the mortgage payments.
14.5.The applicant was promoted from time to time. He reached [a supervisor role] and then assistant principal. Due to jealousies and tribal rivalry in the [Authority 1] linked to head office, he was subsequently demoted back to [the supervisor role]. From 2017 up to the national election in 2020, the government began converting teachers from permanent employment with all its provisions and benefits to contract arrangements. The applicant was put on contract in 2018. Losing his permanent status made him and his colleagues feel very fearful as there was no guarantee they would hold their positions.
14.6.The applicant first came to Australia at the end of 2017 for a month to spend Christmas with his [Relative A] in Melbourne. He came again for over a month at the end of 2018. By that stage, he had lost his permanent teaching position, and was looking for other opportunities in Australia that would be more secure and better paid than his contract role in Fiji. He returned to Fiji in January 2019, tendered his resignation from his teaching contract, told his family he intended to go back to Australia and pursue opportunities that would allow him to better cater for the family’s needs.
14.7.The applicant sought advice from his [Relative A], a teacher in [Australia]. The [Relative A] had been a teacher in [Country 1] and was transferred to Australia; he’s now a permanent resident. The [Relative A] advised him to apply for a protection visa because it would allow him to pursue work rights and study. At that time, the applicant had very little information about protection visas. The Tribunal referred the applicant to the overview at the start of the hearing regarding the legal requirements for protection visas. The Tribunal asked the applicant if he now understands that protection visas are not about work and study rights. The Tribunal also indicated that it appears the applicant has applied for the wrong visa. The applicant acknowledged that he’s come to realise the complexities.
14.8.The Tribunal invited the applicant to explain his claims for protection. He said he faced great challenges and hardship as a teacher in Fiji: the low salary, being put onto contract by the regime and the associated fears and uncertainties, and the heightening cost of living. He may not have been physically harmed, but he faced difficult mental challenges until finally making the decision to come to Australia. Now he's living and working here, he can support his family to a level of prosperity. If he has to go back to Fiji, he would no longer be able to do that, he would have to start at the bottom again if he re-entered teaching; it would be very traumatic for him and his family.
14.9.The applicant has high hopes for what the new government may do for Fiji, however it will be a slow process transitioning from the old guard to anything he could expect to return to.
14.10.The applicant has been employed as a [specified] teacher at [Employer 2] earning $108,000 per annum for the last 4 years. When he told the [current employer] he was coming to the Tribunal for a hearing, they were very concerned because there is a shortage of rural teachers and they don’t want to lose him. They provided a reference. He is contributing to Australia, and his vision is that his family can join him here and also make a contribution.
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 his protection claim and to provide sufficient evidence to establish the claim.
In considering the claims and evidence, the Tribunal has taken account of:
16.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
16.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
16.3.The country information set out in Attachment B to this decision record.
The Tribunal considers the applicant gave a truthful account of his time in Fiji, and his reasons for leaving Fiji and wishing to establish a life in Australia.
The Tribunal acknowledges that the applicant is an experienced teacher, highly valued at his past schools in Fiji, and at his current school in Australia.
The Tribunal accepts that the applicant faced considerable challenges in Fiji as a teacher, and as the family’s sole earner, because he was unable to earn enough money to educate his children and support his family, and the lack of security of employment caused him to experience fear and anxiety.
The Tribunal accepts that the applicant did not have a proper understanding of the nature of a protection visa when he applied, and he relied on his [Relative A’s] advice that it would give him work and study rights.
The Tribunal considers that the primary reason for the applicant coming to Australia was to obtain secure employment as a teacher and earn sufficient money to support his family.
Consistent with the applicant’s evidence, the Tribunal notes the country information highlights a number of issues of contention between the [professional associations] and the [Official A] under the previous Fiji government relating to salary levels, introduction of contracts replacing the tenure system, job insecurity, and claims that 60% of the changes in school leadership positions showed displacement of iTaukei (indigenous Fijian) teacher leaders.
The Tribunal considers there is insufficient evidence before it to conclude that the applicant was targeted or discriminated against on the basis that he was an indigenous Fijian teacher.
The Tribunal notes the country information reports that Fiji’s political climate is currently in a state of flux but there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022 elections, ending Bainimarama’s 16 years in power.
The Tribunal notes the country information reports that there is no official discrimination against Indigenous Fijians: they are the majority ethnic group in Fiji and as such enjoy significant social, economic and political capital. The Social Democratic Liberal Party (SODELPA), which is part of the coalition government, largely draws its support from Indigenous Fijians, and the Rabuka government has revived the Great Council of Chiefs (GCC), which in May 2023 reconvened for the first time in 16 years.
The Tribunal notes the online reports (set out in the country information) indicate a recognition by Prime Minister Rabuka of the importance of teachers and their log of complaints, and a willingness on the part of the [Professional Association 3] to engage in dialogue with the government; and a commitment by the [Official A] to address areas of concern, including the status and work conditions of teachers. The Tribunal also notes the meeting of the Great Council of Chiefs affirmed a commitment to the economic advancement of iTaukei and alleviating the poverty levels of iTaukei.
The Tribunal notes the country information reports that DFAT is not aware of any official or societal discrimination against failed asylum seekers; and that emigration and return to Fiji are common in Fijian society, and a return would be unlikely to be seen as unusual or attract attention from authorities.
The Tribunal accepts that it would be difficult financially and emotionally for the applicant to return to Fiji and re-enter the teaching profession after occupying a secure, well-paid teaching position in Australia for four years, which has allowed him to support his family in Fiji to the level of prosperity he wishes for them.
The Tribunal considers however there is no evidence before it to support a conclusion that if the applicant returned to Fiji, he would be subjected to discrimination and harm in the pursuit of his teaching 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 he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
31.1.The applicant is a citizen of Fiji and a non-citizen in Australia.
31.2.The applicant’s claims for protection do not satisfy the refugee or complementary protection criteria set out in the applicable law.
31.3.If the applicant is returned to Fiji, there is no real chance that he 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.
31.4.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.
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.
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 applicant a protection visa.
Kate Chapple
Member

ATTACHMENT 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 20 May 2022 provides (inter alia) that:
5.28 DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.
Issues relating to teachers under previous government
In a September 2018 circular to all Fijian teachers, news website fijivillage.com reported, Attorney General and Minister for Education, Aiyaz Sayed-Khaiyum, said every teacher in Fiji had received a pay rise after the Job Evaluation Exercise (JEE). He said teacher salaries were ‘up an average of 12% and salaries for school administrator positions are up an average of 28%’, for example, the maximum salary for Principals of large schools increased from $50,700 to $110,400. He said unions had falsely claimed that 2000 teachers had been demoted; he said some position titles had changed. He said it was also falsely claimed that school heads and teachers had been fired for no reason. He said teachers had been disciplined or fired for sexual harassment, enforcing corporal punishment, or legitimate serious breaches of the Code of Conduct.¹
In a 5 September 2018 joint statement, ‘[t]he two teacher unions in Fiji’, the Fiji Teachers Confederation (FTC) and the Fiji Teachers Union (FTU), detailed over three pages the ‘facts’ of current developments in which they were in contention with the Minister, including that: ‘salary adjustments’ arising out of the JEE did not make up for the lack of them since the previous (1993) JEE; a salary adjustment could only be received by signing an individual contract; positions whose salaries were adjusted up by 15% or more were declared vacant, so some people were contracted in lower substantive posts; and the maximum salary band (Step 4) for a large school principal was $87,000; only ‘exceptional “superflyers”’ could attain bonuses to $110,400. The statement said the two unions would ‘continue to seek redress … via collective bargaining, industrial mechanism and negotiations with the employer’.²
At the April 2019 Fijian Teachers Association (FTA) Delegates Annual Conference, FTA President Netani Druavesi claimed that ‘the new education reforms’ - including displacement of school heads - were ‘anti‑iTaukei’ (indigenous Fijians), fijivillage.com reported:
Druavesi has claimed that 60 percent of the changes in school leadership positions from the Education Ministry have shown displacement of iTaukei teacher leaders.
He went on to say that the introduction of one month to 5 year contracts replacing agreed service tenure system, immediately introduces job insecurity.
Druavesi also claims teachers’ contract are terminated without proper practices of natural justice and adherence to the Ministry's own Fijian Civil Service Disciplinary Guidelines.³
Education Minister Rosy Akbar, present during the statement, replied:
… that seniority of teachers, their experience and number of years of service will now be one of the factors that they look at when dealing with the promotion of teachers within the Ministry of Education.
Akbar earlier highlighted that most of the teachers whose contracts have been terminated, was due to corporal punishment used to discipline students.
… The Education Minister also stressed that the Ministry has zero tolerance for corporal punishment and as times have changed the counselling process in place is there to discipline students and protect teachers.⁴
The Fiji Trades Union Congress (FTUC) planned 3 and 4 May 2019 protests on ‘workers issues’, including the national minimum wage, delay in labour law reforms, and the right to strike.⁵ On 1 May 2019 the FTA General Secretary, Paula Manumanunitoga, was questioned by police for alleged breaches of the law, as were a FTUC official, Shiu Lingam, and the Fiji Nursing Association General Secretary, and the three spent a night in police custody, as did FTUC General Secretary Anthony.⁶ On 3 May the Fiji Sun newspaper reported that it understood that the unions supporting the protest included the FTU and the Fijian Teachers Association (FTA).⁷ An international socialist news website later reported:
The Fijian Teachers Association (FTA) had earlier received a letter from the secretary of education instructing teachers not to join the protests. FTA president Netani Druavesi said teachers’ rights were protected under the constitution and the letter was “illegal and a threat to the country’s educators.” Eight FTA executive members were questioned by police about the proposed protests.⁸
Because the police refused to permit assembly, including on union and other private property, the FTUC postponed the planned 3 and 4 May 2019 protests.⁹
Footnotes
1 ‘Unions are falsely claiming that 2,000 teachers have been demoted - Sayed-Khaiyum‘, Narayan V, fijivillage.com, 5 September 2018
2 ‘Joint statement by FTU and FTA’, Delabatiki P & Singh A D, Fiji Teachers Confederation (FTC), 5 September 2018, pp.1, 2-3 & 1, on Fiji Teachers Union (FTU) website
3 ‘FTA President Druavesi claims new education reforms are anti‑iTaukei’, Narayan V & Reece L, fijivillage.com, 24 April 2019
4 ‘FTA President Druavesi claims new education reforms are anti‑iTaukei’, Narayan V & Reece L, fijivillage.com, 24 April 2019
5 'Anthony says prospects low for labour talks after arrest', RNZ [Radio New Zealand], 6 May 2019
6 ‘Felix Anthony and 3 other unionists to be further questioned today’, Narayan V & Turaga S, fijivillage.com, 2 May 2019; ‘Three unionists are being questioned by Police’, Narayan V, fijivillage.com, 1 May 2019
7 ‘Unions Saga: No March’, Gopal A, Fiji Sun, 3 May 2019
8 ‘Fiji authorities suppress May Day protests, arrest locked-out workers’, Braddock J, World Socialist Web Site, 10 May 2019
9 ‘Fiji protests called off; dozens of unionists still in custody’, RNZ [Radio New Zealand], 3 May 2019
Fiji country information current as at 25 August 2023
There is no official discrimination against Indigenous Fijians. 22 Indigenous Fijians are the majority ethnic group in Fiji and as such enjoy significant social, economic and political capital.23 The overwhelming majority of government services are centralised and provided on a non-discriminatory basis. Other services, including rural development, are provided through the Indigenous Fijian administration and advantage Indigenous Fijians or Rotumans.24 Much of the British-origin ‘native administration’ system, set up to protect Indigenous Fijian culture, continues modified and renamed, and is a form of positive discrimination. 25 The Social Democratic Liberal Party (SODELPA), which is part of the coalition government, largely draws its support from Indigenous Fijians.26 The Rabuka government has revived the Great Council of Chiefs (GCC), which in May 2023 reconvened for the first time in 16 years. The GCC is the highest chiefly political body in Fiji and was disbanded following the 2006 coup. In the past, critics of the GCC have claimed that the body excluded minority groups including Indo-Fijians; however, the new GCC claims it is keen to promote multiculturalism.27 It is unclear what role the GCC will play; a review is currently underway.28
Fiji’s political climate is currently in a state of flux but there has been no significant political unrest or deterioration of government functions since the new government was elected.162 In the December 2022 elections, Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power.163 FijiFirst won the popular vote (42.5 per cent); however, it only won 26 seats, just short of the 28 needed to form government.164 The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three party coalition that includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP). 165 Rabuka instigated both 1987 coups and served as Prime Minister between 1992 and 1999. 166 His coalition holds a slim majority in parliament.167 Despite some irregularities, international observers assessed the electoral process as being free and fair overall.168
Footnotes
22 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.12
23 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.12
24 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.12; ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, p.13
25 ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, p.13; 'The People Have Spoken: The 2014 Elections in Fiji', Ratuva, S and Law son, S (eds), Australian National University, 1 March 2016, pp. 42–44; ‘Fiji: The politics of conflict reduction’, Fraenkel, J, Routledge, 2013, p. 171, CIS25155; 'Fiji Before the Storm: elections and the politics of development', Lal, B V, Australian National University E Press, 2000, p. 74
26 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.11
27 ‘Fiji's Great Council of Chiefs reconvenes after 16 years, promises racial equality’, ABC News, 24 May 2023
28 ‘'Symbol of a worldview ': Understand the GCC and its role first, Fijian academic says’, Radio New Zealand, 12 June 2023
162 'Fiji - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023
163 ‘Fiji’s new politics', Interpreter, The (Low y Institute for International Policy), 17 January 2023; 'Fiji: A chance to stop political history repeating', Interpreter, The (Low y Institute for International Policy), 14 February 2023
164 ‘Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023; ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, The Guardian, 18 December 2022
165 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
166 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.16
167 ‘Fiji’s new politics’, The Interpreter, 17 January 2023
168 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.11
Online reports
·     Office of the Prime Minister: PM Rabuka Acknowledges Teachers’ Contribution to the Nation
The Hon Prime Minister, Sitiveni Rabuka was accorded a Fijian traditional welcome ceremony by the Fiji Confederation of Teachers at the FTA hall yesterday (January 19th, 2023).
The occasion, which was attended by members of the confederation, marked their appreciation towards the government of the day on recent announcements in relation to teachers and also to pledge their allegiance to the coalition government.
Whilst delivering his official remarks, Prime Minister Rabuka stated, that the importance of teachers and their outstanding log of complaints demonstrates the difficulty some people have in fathoming the importance of their professions.
“There are times when everyone will be called to do something for the good of the nation. As teachers, you and those of us in Parliament have been called to do something for our nation.”
“When there is a need for us to rebuild, compromise is not enough. Each of us will have to make sacrifices,” the Prime Minister added.
“Thank you and all your predecessors who have taught our children over the years that has seen great leaders come and go. We have seen great men and women come and go and we acknowledge how great they were, but very few of us look behind them and see the men and women who taught them in school.”
Speaking on behalf of the Fiji Teachers Union, Mr. Muniappa Goundar said the teachers are happy and ready to engage in dialogue with the government.
“Your coalition government sir is a symbol of unity for our country and I can assure you of our allegiance,” said Mr. Goundar
“Trade Unions thrive and do well in an environment of freedom and under true democracy. We are appreciative of the fact that the Ministry of Education has invited us for a free and fair discussion on educational issues after so long,” Mr Goundar added.
A talanoa session with the Prime Minister and Minister for Education Hon. Aseri Radrodro convened after the traditional welcome ceremony that allowed the members of the Fiji Teachers Confederation to raise their concerns regarding their welfares.
·     Office of the Prime Minister: GCC Meeting Draws to a Colourful Close (26-05-2023)
The first Great Council of Chiefs meeting since 2007 drew to a sombre yet colourful close following the GCC’s endorsement of landmark decisions that would support the development of the i-Taukei.
Soon after the meeting proper concluded, GCC Chair and Minister for iTaukei Affairs Ifereimi Vasu announced to the media the strategic review of the iTaukei Land Trust Board, iTaukei Land and Administration and iTaukei Fisheries Commission comprising iTaukei Affairs Board, Provincial Councils, Tikina Councils and Village Councils. Other major decisions included, GCC endorsed the outcome of the iTaukei Resource Owners Forum that was held on March 30th and 31st. This reaffirms the President’s address on the economic advancement of iTaukei, and alleviating the poverty level of the i-Taukei, economic empowerment be a priority for the GCC and other i-Taukei institutions, Economic empowerment framework for the i-Taukei to be implemented by the iTaukei Institutions, confirmed liuliu ni yavusa be assisted in looking after their responsibilities through a monthly allowance of $200, and endorsement of the names of nominees to the Board of Governors for Ratu Sukuna Memorial School. While replying to questions posed by the media, Prime Minister Sitiveni Rabuka said, “the GCC or Bose Levu Vakaturaga will serve as a parallel institution to President Ratu Wiliame Katonivere where he could seek advice on any matters of interest to Fijians.”
·     FBC News: Education Summit to address emerging challenges (11 September 2023)
A Status of Education report in the country put together by the Ministry has brought to light huge concern areas that need urgent attention, says Education Minister Aseri Radrodro.
These issues are expected to take center stage during the Fiji National Education Summit, which kicks off in the next nine days.
The Minister highlighted that the education report captured issues such as the TVET sector, the Ministry’s organizational structure, the status and work conditions of teachers, the assessment system, and grant distribution.
Radrodro says discussions were held on the status report during pre-summit consultation and has helped guide the development of a new Fiji Education Policy Framework.
He says this will be presented at the summit.
The Education Minister says a wide range of stakeholders have been meeting since May this year to put together seven thematic groups as a focus area for a new education policy framework.
“An analysis of the school enrolment rate has shown a large number of students out of school, particularly at the secondary school age level. The Education Summit program provides a space for participants to discuss the issues facing out-of-school students and consider solutions to the issues. In the case of those who are already in school, some are at risk of dropping out due to limited pathways in the curriculum; unfortunately, the school programs are limited and exam-oriented.”
Radrodro says the three-day summit will focus on curriculum development, teacher development and training, early childhood, technical and vocational education, and education policy, among other issues.
150 participants are expected to be part of the three-day summit, which commences next Wednesday.

[2023] AATA 4398

12 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

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