1932321 (Refugee)

1932321 (Refugee) [2024] AATA 2696 (16 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932321

COUNTRY OF REFERENCE: Fiji
MEMBER:Clyde Cosentino
DATE:16 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 April 2024 at 12:51pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to the previous government – indigenous rights – race – Indigenous Fijian – restrictions on land owners – freedom of speech – mental health issues – health issues – change of government – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 24 January 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Receiving country
The applicant provided copies of the biodata page of his Fijian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before the Tribunal to the contrary. The Tribunal finds that the applicant is a citizen of Fiji, and that Fiji is his receiving country for the purposes of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
Protection visa application
The applicant, male, who was [age] years old at time of application, provides details in his protection visa application as follows:
a.He was born in Suva, Rewa Fiji. He lived in [Village 1] from [birth] until December 2018. He worked as [an occupation 1] at ‘[a named project]’ – Government at [Village 1] – Suva, from 2001 until 2011 and then as [an occupation 2] at [Agency 2] at [Town 1], from 2011 until 2013. He was employed as a ‘Church Worker’ from 2018 at [Village 1], Suva.
b.He has qualifications in [Occupation 3] from [Institution 1] in [location]. He completed a [Qualification 1] at [University 1] in [location].
c.The applicant first arrived in Australia [in] September 2017 for a Religious Training Conference and departed from Australia [in] October 2017.
The applicant sets out his claims in his protection visa application and in a separate statement, both of which were received by the department on 25 January 2019. His statement of claims is written as follows:
I am [applicant’s name] and I last arrived [in] Australia [in] December 2018. This visit [has] greatly helped me for an individual who has over the last 12 years or so, being suffering from depression anxiety. My life has been one where I have lived through and experienced one military coup after another. Democracy is not an option in Fiji. The little experience of democracy in 2001 was tarnished by the racial division that has been the course of unsettlement and a bleak future for me. There is a lot of racial discrimination in Fiji and this did not go well on me.
I do not feel safe going back to Fiji because the current government is taking away from us our Rights as indigenous and last settlers of Fiji. I am a strong advocate of Human Right and am proud to be a Fijian, one who also strongly advocate for traditional values to be maintained. With the government maintaining that we are all equal and that our right as traditional custodian of the land is taken away, this increases my stress and psychologically negatively affects me, resulting in me getting angry and depressed and becoming aggressive.
My right as an indigenous person has been deprived and suppressed because I am an iTaukei. During this visit to Australia, I saw the differences and experienced are very different atmosphere in this country, one that I have never experienced before. I now see the situation in Fiji as one that is not safe for myself, I felt threaten and am always afraid in Fiji.
Some of my rights that have been suppressed and this have resulted in the situation becoming a life-threatening situation for me. One of the rights I have been deprived of is my freedom of speech. I cannot criticize the government of the day because it will result in my being arrested and taken to task by the special joint force of the Police and the Military. People are now taken to court and charged for talking against the Government of Fiji. I now criticize the government and am able to speak freely about the government from this end when I now reside in Australia.
I have seen images of indigenous youths and adults taken by the military and the Police after the 2006 Military Coup and beaten to death. Those images and the thought of the current government have stayed in my mind for the last 10 years. These had over the years psychologically affected me and as a result I sometimes become very aggressive and violent while I was in Fiji. Over the last month I and those around me have noticed the change and have commented on how I have become more sociable and less tensed. This is because I now feel safe in this country.
I cannot move to any other part of Fiji because this problem is a major problem and it is the Fiji government that is a threat to me and my family. I do not have any other place to move to, because if I move to my village the whole village will be implicated and I could be seen as the one causing trouble. I do not want my village to suffer and to be stigmatized, so I would rather be on my own and do not move to another place.
The country is so small and moving to another part of the country will not solve the problem I was encountering but will only worsen my situation because in Fiji everyone knows each other. The military and the government will know my where about regardless (of) where I go in Fiji. The country is too small for one to hide.
Coming to Australia has greatly improved my health condition. Meeting new people who I have come to treasure and getting great counselling has greatly assisted me reducing the psychological stress. I cannot seek assistance from my relatives in Fiji because if I did, they will also be implicated. I cannot move to another place because wherever I go the Government will continue to do what they are doing now to me and my family and my problem will continue to increase.
The current government is the very authority that is causing all [these] problems. There is no one to turn to in Fiji. There is no NGO in place to assist us and my relatives have tried all their best but to no avail. My situation was getting worse in Fiji and I was afraid that it would result in Suicide or in my becoming violent. Australia has been a great saver for me.
The Fiji Government is responsible for the psychological harm. And this is so because they do not want the indigenous Fijian to be recognised as the first of people of Fiji and our cultural and traditional values are not respected by the current Fiji Government.
Indigenous rights are not recognised in Fiji. There is not Freedom of expression and the Media is controlled by the government. The country is not a democratic country and youths have no voice. All these limitations and restrictions have resulted in my negative attitude towards life and hence the psychological depression.
My rights as a person is exercised and I now have a sense of Freedom that I never experienced in Fiji. If I go back to Fiji I will continue to suffer psychological and mental stress and depression and my family will continue to suffer because they are the ones who take the brunt of my depression and stress. I blame it on them and my aggressive temper that had developed over the years had reached a critical stage because I started physically and verbally abusing my family.
If I return to Fiji, I know that the trauma will continue and that the aggressive [behaviour] and the feeling of being isolated and that where life must end will come back. This is because the situation in Fiji where Indigenous people are suppressed and tour rights taken away from us, my right to the land that my family line have owned since the inhabitant of Fiji is now at risk of us losing the land in the hands of the current government. The suppressing of the traditional leadership system in Fiji is very depressing. I am brought up from a family where we uphold the culture and tradition of our land. My life in Fiji is one of a depressing life and one where there was no other option but to end my life.
On 23 October 2019, the department refused the applicant’s Protection visa application.
On 13 November 2019, the applicant lodged an application for review with the Tribunal.
Pre-Hearing material
On 15 November 2019 the applicant provided a further statement of claims to the Tribunal as follows (no changes have been made to the statement of further claims including the capitalised font):
UPON VERIFYING THEE-MAL (sic) RELATING TO ISSUES THAT MAY HINDER THE PROCESS OF MY APPLICATION I WISH TO CLARIFY MY RELATION TOWARDS SHADOW INVOLVEMENT IN POLITICS OF MY COUNTRY OF BIRTH. AS YOU MAY AWARE THAT MY ADDRESS IN MY VISA APPLICATION WAS DONE IN MY MOTHERS VILLAGE [VILLAGE 1] (STRONG HOLD SDL-SOLDEPA PARTY AND SUPPORTED BY MEMBERS OF PARLIMENT [OPPOSITION]).
MOREOVER MY [RELATIVE A] WHO IS THE [OFFICIAL 1] OF PREVIOUS PARTY WHICH WAS OVERTHROWN BY THE PRESENT GOVERNMENT 2006 HAS DEFECTED AND MY INVOLMENT WITH THE PRESENT OPPOSITION PARTY WHICH LOST IN THE GENERAL [ELECTION 2018] WAS A MAJOR BLOW BECAUSE IN MY CONVERSATION WITH PRESENT [OFFICIAL 1] OF THE PARTY BEFORE THE ELECTION WAS TO CREATE A BILL [Name] TO UN!TE THE COUNTRY IN DEFEATING THE GOVERNMENT IN THE 2018 ELECTION .
HOWEVER THE PARTY COULD NOT PROCEED WITH THE RE-COUNT OF THE PAST ELECTION RESULT BECAUSE OF THE DECREE WHICH DOES NOT ALLOW PROCEEDING FURTHER SO THEJUDICIAL SYSTEM IS NOT INDEPENDENT SO AS PART OF FREEDOM OF SPEECH AS CLEARLY STATED BY THE PRESENT GOV IN DICTATING ENVIROMENT.
ALSO, MY PAST INVOLMENT WITH [an opposition] LEADER IN PRISON MINISTRIES 2016/17 MAXIMUM PRISON WILL AFFECT MY LIFE IF I RETURN TO MY COUNTRY OF BIRTH.
THEREFORE, I DO HOPE THAT MY APPLICATION WILL BE FACILLITATED IN THE NEAR FUTURE.
On 18 November 2019, the applicant provided to the Tribunal several news articles from the Fijian times. These articles were general news articles about law and order in Fiji at the time.
On 8 December 2023, the applicant provided to the Tribunal a ‘Pre-hearing Information Form’ with the following hand-written statement:
The dynamic of politics in Fiji has evolved and my status at the moment [is] not affected. Moreover, its nearly (5 years) I am living and working in the [community] Sector here in Australia also participating in Community development back in Fiji ([Village 2]) building a church with village elders and church member of Seventh Day Adventist Church ([Agency 2] also here in Australia [in Queensland] helping the church to purchase a piece of land to build a church.
However, my request [is] if you can grant me a new visa that will help me and those I am working with to complete this two project will be grateful.
On 20 December 2023, the Tribunal wrote to the applicant inviting him to attend a hearing on 17 January 2024.
Tribunal hearing
The applicant appeared before the Tribunal on 17 January 2024 to give oral evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicant was unrepresented in relation to the review. The applicant did not provide further documents to the Tribunal at the hearing.
The Tribunal explained to the applicant, at the start of the hearing, the refugee criterion and the complimentary protection criterion separately and how they applied under Australian law respectively.
The applicant stated he had a consultant assist him to put together the application for a protection visa. He thought the consultant was a migration agent. He confirmed he signed the application and confirmed that the claims he made to the department were true and correct.
He confirmed he sent to the Tribunal a further statement of claims on 15 November 2019 and that these claims were true and correct.
He confirmed that the claims made to the department and the claims made to the Tribunal in his further statement were all of his claims and that there were no new claims to be made apart from these.
He is presently living at an address in [Town 1]. He last lived in Fiji at his mother’s village, namely, [Village 1]. He was asked whether he still had family in [Village 1]. He replied that he had [siblings] living there. His parents had both passed away. He kept in touch with [these siblings] weekly or monthly depending on the circumstances.
He worked for the government in Fiji and also supported the Church for nearly 8 years in hospital, prisons and in the community, as his family came from a missionary background.
He was presently working for [Employer 1] utilising his skill set. He had been working there for three and a half years. He is currently on a Bridging Visa C with work rights and Medicare, but he cannot travel. He [worked in a specified role] in [Town 1].
He first came to Australia in September 2017 to further develop his skills in support ministry which he was conducting in Fiji. It was a two-week course. He returned to Fiji after the course.
He then returned to Australia in December 2018 and remained in Australia ever since. He had no problems entering and re-entering Fiji at Nadi airport.
He renewed his Fijian passport at the Fijian Consulate in Sydney [prior to] the hearing. His only issues in renewing a Fijian passport in Australia was obtaining identity documents, which he has done. He was advised by the Fijian Consulate that it would take about 8 weeks for his passport to arrive. The Consulate advised him that there were no issues in him having his passport renewed.
When asked why he renewed his Fijian passport he stated that he wanted to remain permanently in Australia. He likes living and working in the outback and wanted to serve the people in the outback. He said it has been quite an educational journey for him.
The Tribunal then referred the applicant to his handwritten response to the ‘Pre-hearing Information Form’ and read it fully to him again. The applicant noted that he remembered writing this. The Tribunal then asked him what he meant by his sentence: “The dynamics of politics in Fiji has evolved and my status at the moment [is] not affected”. The applicant responded that the new elected government were the same people he had been working with in the past in helping to work towards better policies. He has chatted with the [Official 1] of the ruling party in the past and now thinks the government has dismantled the draconian policies that have been affecting the applicant and other Fijians. The applicant believes that this government will stabilise issues that have been a concern for the applicant and others. The Tribunal then asked the applicant whether it had gotten better as a result of the current government. The applicant agreed that it had.

The applicant confirmed that the current new government was the government that he had been working with in the past. The Tribunal then asked the applicant whether all the claims of concern that he had made when the previous government was in power did not exist anymore given the new government in power. The applicant responded that there were some ‘loopholes’ that might affect this. However, for the time being everything was going “quite well” with the new government in place.
The applicant confirmed that the current government is trying to make changes to Draconian laws of the past. He confirmed that this was a positive thing.
The Tribunal put to the applicant that, if the new government in power is a government that is making positive change and that this government was a government that he supported in the past, what was his fear in returning to Fiji now. The applicant responded that the only fear that he can see now related to his health problems and that this would not be “accommodated” for properly if he was to return to Fiji. He elaborated that the health system was in chaos. He stated that this was one of his main fears.
The Tribunal noted that country information from the Department of Foreign Affairs (DFAT) and Trade in December 2023 noted that that most Fijians had access to quality healthcare, that the quality of health care in urban areas was good though more basic in rural areas, that Fiji responded well to Covid 19 pandemic, and that mental health care is available through the health system though most people are cared for at home. The Tribunal pointed out that the information indicated that there was a functioning and relatively good health system in Fiji. The applicant was invited to comment. The applicant asked if the information provided any data about this. The Tribunal referred to the information which indicated that the Fijian health care system was the most complex and developed of all the Pacific Island countries, that health care was free, that the government provides general public health services including free primary and secondary health care, preventive care, generalist services and hospitalisation. It did say that there was a shortage of supplies and medications in rural areas but most people access care through the public system. There is a growing private health systems and significant NGO’s provide health care to the public. The Tribunal again invited the applicant to provide comments to this information. The applicant stated that it is only the services that were good but not the issuing of medicines and tablets through the healthcare system.
The Tribunal asked whether there was a fear of returning under the current government which is trying to make changes and which the applicant supported in the past. The applicant stated that the fear in returning is that the new government who is governing at the moment is not quite stable yet. There is also the fear and the underlying threat of the opposition returning to power in Fiji. The Tribunal asked why he fears the opposition if he returns. He stated that they are still very active in the political arena including their loyal supporters who are doing the work of threatening people and persecuting them.
The Tribunal asked whether it was the opposition that he feared and not the current government. The applicant confirmed this was the case. The Tribunal asked why the opposition would have any interest in him if he returned. He stated because of his not agreeing with land policies and fishing rights in the past. The Tribunal asked whether he was a profile supporter of these rights. The applicant stated that he was someone who was just trying to address the fact that they should have a more responsible policy for landowners and fishermen.
The Tribunal asked whether health concerns being adequately dealt with and the fear of the current opposition party were the only two fears he had in returning to Fiji. He confirmed this was the case.
The Tribunal put to the applicant that the claims he made to the department and the claims that he made to the Tribunal (before the hearing) were claims made before the election of the current government. The Tribunal asked whether those claims were relevant anymore. The applicant responded that some were, and others were not.
The Tribunal then asked which claims made to the department and to the Tribunal respectively are relevant at the time of the hearing considering that there is a new government in place in Fiji. He stated that the claims that were presently relevant for him was the instability of the current government. There is no solid confirmation that things will run smoothly with the current government. There is still the fear of those who are loyal to the previous government who will be a threat to him and others who are living overseas. He fears that there is a risk in returning to Fiji.
The Tribunal then put relevant country information to the applicant for his comment. It referred to DFAT’s report on the political environment in Fiji. It stated that the current government had been in power since December 2022. There had been no political unrest or deterioration of government since the Rabuka government was elected. The transition of power has been peaceful, with the military so far refusing to intervene. DFAT was not aware of any credible reports that the new government has harassed or ill-treated any supporters of the former Bainimarama government. In fact, the current government has taken steps to facilitate the return of several critics of the former Bainimarama government of Fiji. The Tribunal stated that there appeared to be a strong functioning government with no civil unrest. The applicant stated that he did not have a response to this information.
The Tribunal indicated that he mentioned his [Relative A] was [a leader among] the opposition. The applicant stated that that was when the current government was in opposition. His [Relative A] has been living in Fiji for more than 50 years now. [Details deleted.] The applicant believed that he was working with Rabuka’s government now. He is probably supporting Rabuka. He currently lives in the same village as the applicant’s [siblings]. He is currently living safe and well in his village ([Village 1], the applicant’s mother’s village).
The Tribunal asked why he did not mention anything about his [Relative A] in any of the initial claims or at any time except late at the hearing. He stated that he did not mention it because it was “quick” and he was not in a good state of mind. But when he realised “it was dealing with politics” he decided to mention it at the hearing.
The Tribunal indicated that he had someone who helped him with his application. The Tribunal indicated that it might have thought that such an important matter would have been mentioned first up when completing his application. The applicant stated that his involvement with politics was a “shadow”. He was not involved in politics directly.
The Tribunal asked whether his [Relative A] was the only person who had a profile in his family. The applicant confirmed this was the case. The applicant stated that his [Relative A’s] position was [Official 1] of the former SDL party. The Tribunal indicated that it was concerned that he did not mention the importance of his [Relative A] until presenting these claims to the Tribunal. The applicant stated he had no comments to make about this.
The Tribunal also raised with the applicant that he had made a claim about his indigenous heritage. The Tribunal asked whether this was still a claim for him. The applicant stated that it was a big factor before but not now because of the new government. The Tribunal put to the applicant, for his comments, country information about DFAT. It stated that there is no official discrimination against Indigenous Fijians. The Tribunal indicated that SODELPA, which is part of the coalition government, largely draws its support from Indigenous Fijians. The applicant stated that he did not have any comments to make about this country information.
The Tribunal indicated that the applicant raised a claim that he feared for his life because he worked with someone in prison ministry. The applicant confirmed that this claim was not relevant to him anymore.
The Tribunal asked whether there was anything else he wanted to raise at the hearing in support of his claims or adding to his fears of returning to Fiji. The applicant stated that he had nothing further to raise.
The Tribunal referred to the media articles provided to the Tribunal. The Tribunal asked him, whether because of the new government, these articles were still relevant. The applicant stated that these articles were not relevant now given the new government in power now.
Post-Hearing submissions
The applicant provided the following post-hearing submissions by email:
“… … …
… … … I'm informing you this morning about my present role in [Town 1] where I'm a
active member of [Agency 3] member for the last two years participating in meeting and raising awareness in alcohol consumption in the community including safe workplace for staff at the hospital.
Secondly I have also contributed to the community in opening a [specified small business].
Lastly at the moment I'm doing online study to upgrade my skills in [Employer 1].
… … …”
Consideration of the claims and evidence, assessment and findings
In determining whether the applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. In assessing the credibility of the applicant’s claims, the Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility. The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[2] 4 Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547
The Tribunal has read all the material before it and heard and assessed the oral and written evidence presented by the applicant.
The Tribunal has considered the news articles provided by the applicant. However, it also has considered the applicant’s evidence at the hearing that the articles are not relevant to his claims anymore given that there has now been a change of government in December 2022 in Fiji. Having considered this evidence, the Tribunal does not give any weight to the articles as presented by the applicant to the Tribunal and does not give them any weight as evidence in support to the applicant’s claims.
The Tribunal has also considered his post-hearing submission which simply informs the Tribunal about his active role in the [Agency 3] in [Town 1] and how it is relevant to his work there. The Tribunal has also considered his submission about his community minded business that he has opened there and also how he is upgrading his skills at [Employer 1]. The Tribunal finds that all these matters go to his work in the community sector in Australia and even to his employment in Australia but does not relate to his protection claims. Accordingly, the Tribunal gives no weight to these submissions as they relate to his protection claims.
In considering all the evidence before it, the Tribunal accepts that the applicant has supported the Social Democratic Liberal Party (SODELPA) in a small way before coming to Australia, and that the SODELPA party, along with the People’s Alliance (PA) and the National Federation Party (NFP), are a coalition of three parties governing Fiji since the December 2022 Fiji National elections.[3] The new Prime Minister, Sitiveni Rabuka, leads this three-party coalition.[4]
[3] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023, 20230619093756
[4] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023, 20230619093756
The Tribunal accepts the applicant’s evidence at the hearing that he now believes that the current government of Fiji is working towards better policies for his country. It accepts his evidence that the current government is dismantling “draconian policies’, as he put it at the hearing, which has been affecting the applicant and other Fijians over many years. It accepts his evidence at the hearing that he believes that the government will stabilise issues that have been of concern to the applicant and others in the past. The Tribunal accepts his evidence at the hearing that he does not have any fear of suffering serious harm under the existing Fijian government.
At the hearing, the Tribunal asked the applicant whether he still wished to rely on his original claims given there is a new government which has been elected after he came to Australia, and that this new government has been at work in making change and improvements to Fiji since December 2022, and that the SODELPA party is the party he supported when he was in Fiji and is now part of the new government. The applicant gave unequivocal evidence at the hearing that, given theses changes in Fiji, he had only two claims he wished to rely on, namely, (1) that the Fijian health system will not meet his current health concerns; and (2) that the current government is not yet stable enough to deal with the underlying threat of the opposition party who still have loyal supporters threatening people and persecuting them including the applicant because he did not agree with the former government’s land policies and fishing rights policies. In this instance, the applicant was clear that he was not a profile supporter of these policies but someone who was trying to address a more responsible policy for landowners and fishermen.
Before the Tribunal assesses each of these two claims, it needs to assess other claims raised by the applicant in his original application and in pre-hearing submissions submitted to the Tribunal.
Thus, the applicant raised in his original application the claim that his rights as an iTaukei indigenous person has been deprived and suppressed as a result of the former government’s policies and his fear that the land his family have had for generations would be taken away by the former government. Secondly, the applicant raised a number of concerns about the lack of democracy, as well as the lack of freedom of speech and expression, including restriction of media, that he experienced under the former government, and the psychological harm he experienced under the former government. Thirdly, he raised a new claim in pre-hearing submissions that his [Relative A] was the [Official 1] of the opposition party during the time of Bainimarama’s government. Fourthly, that he feared for his life because of his prison ministry work back in Fiji before coming to Australia.
ITaukei Indigenous Fijian
The Tribunal notes that the applicant provided oral evidence at the hearing confirming that, while his claim that iTaukei Indigenous Fijians have been deprived and suppressed as a result of the former government’s policies and his fear that the land his family have had for generations would be taken away by the former government might have been a genuine fear for him while the former Bainimarama government was in power, it was not a genuine fear now for the applicant under the new Rabuka government which came into power in December 2022, after he lodged his protection visa. The Tribunal finds that the applicant’s evidence here, confirming that this fear is not a genuine fear anymore under the new Rabuka government, is consistent with country information put to the applicant at the hearing. Thus, DFAT Country of Origin Information Services, Fiji dated 11 December 2023 has this to say about ITaukei Indigenous Fijians under the current Rabuka government:
There is no official discrimination against Indigenous Fijians.[5] Indigenous Fijians are the majority ethnic group in Fiji and as such enjoy significant social, economic and political capital.[6] 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.[7] 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.[8] The Social Democratic Liberal Party (SODELPA), which is part of the coalition government, largely draws its support from Indigenous Fijians.[9] 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.[10]
[5] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.12,
[6] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.12,
[7] '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,
[8] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, p.13, CISEDB50AD5787; 'The People Have Spoken: The 2014 Elections in Fiji', Ratuva, S and Lawson, S (eds), Australian National University, 1 March 2016, pp. 42–44, CIS38A8012633; ‘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, CIS8BEF434391
[9] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.11,
[10] ‘Fiji's Great Council of Chiefs reconvenes after 16 years, promises racial equality’, ABC News, 24 May 2023
When a summary of this country information was put to the applicant, particularly the information that there is no official discrimination against Indigenous Fijians and that SODELPA largely draws its support form Indigenous Fijians, the applicant indicated that he had no response to make about this.
Given the clear country information above and given the applicant’s evidence that this claim is not a genuine fear for him anymore under the new Rabuka government, the Tribunal finds that there is no real chance or real risk that, if he returned to Fiji, he would suffer serious or significant harm for being Itaukea Indigenous Fijian.
Lack of democracy, lack of freedom of speech and expression; restriction of media experienced under the former government, and psychological harm experienced under the former government of Fiji
While this was an original claim made by the applicant in his protection visa application while the Bainimarama government was in power, the applicant has confirmed in evidence that these claims are not relevant anymore given that the Rabuka led Coalition government, which includes the SODELPA party which he supported back in Fiji, is presently in power. The applicant’s own evidence is that the current Rabuka government will stabilise issues that have been a concern to the applicant. The applicant provided evidence in writing that the dynamics of politics has evolved and his status at this time is not affected, and he provided oral evidence that the current government has brought a range of improvements to the country.

The Tribunal finds that the applicant’s evidence here, confirming that this fear is not a genuine fear anymore under the new Rabuka government, is consistent with country information put to the applicant at the hearing. DFAT Country of Origin Information Services, Fiji dated 11 December 2023 points to the following political assessment in Fiji:
There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[11] In the December 2022 elections, Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power.[12] FijiFirst won the popular vote (42.5 per cent); however, it only won 26 seats, just short of the 28 needed to form government.[13] 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).[14] Rabuka instigated both 1987 coups and served as Prime Minister between 1992 and 1999.[15] His coalition holds a slim majority in parliament.[16] Despite some irregularities, international observers assessed the electoral process as being free and fair overall.[17]
The transition of power has been peaceful, with the military so far refusing to intervene.[18]
… … …
In August 2023, DFAT stated that it was not aware of any credible reports that the new government has harassed or ill-treated any supporters of the former Bainimarama government.[19]
… … …
[11] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023
[12] ‘Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023, 20230619092820; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for International Policy), 14 February 2023
[13] ‘Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244; ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, The Guardian, 18 December 2022
[14] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023
[15] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022
[16] ‘Fiji’s new politics’, The Interpreter, 17 January 2023
[17] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023, 20230831112859; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.11
[18] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023
[19] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023
When a summary of this country information was put to the applicant indicating that there appeared to be from this country information a strong functioning government with no civil unrest, the applicant did not provide a response to it.
Given the clear country information above with positive changes made to the political landscape by the new Rabuka government, and given the applicant has not raised this as a continuing claim given the new change of government, and given the applicant has provided no new evidence to support his claims as written in his protection visa application, the Tribunal finds that there is no real chance or real risk that, if he returned to Fiji, he would suffer serious harm or significant harm for any political reasons, imputed or otherwise.
Applicant’s [Relative A] as [Official 1] of the opposition party during the time of Bainimarama’s government in Fiji
The applicant raised this new claim after he lodged his protection visa application. The Tribunal has concerns that this evidence has been raised at a late stage and s 423A of the Act was raised with the applicant for his comments. The Tribunal does not find convincing at all the applicant’s response that the reason he provided this evidence about this [Relative A] at a late stage was because he was not in a good state of mind and because he did so when the hearing reached a point where politics was being raised. The Tribunal notes that the applicant has had ample opportunity when lodging his protection visa application (with the assistance of a migration agent he believes) to make a claim about his [Relative A’s] involvement in politics in Fiji and to elaborate on this. However, even given these doubts, the Tribunal is willing to accept that the applicant’s [Relative A] had a profile in opposition during the time of Bainimarama’s government.
The Tribunal places significant weight on the applicant’s evidence at the hearing, however, that his [Relative A], who previously [changed his political allegiance], later changed and worked for Rabuka’s Coalition government after the change of government in December 2022. The applicant provided evidence that his [Relative A] is currently living in the same village as his [siblings] (in [Village 1]) and that he is living safe and well at that village. The applicant provided evidence that his [Relative A] worked as a “shadow’ in politics and that he was not involved in politics directly.
Given the clear DFAT reporting above relating to positive changes made to the political landscape by the new Rabuka government, and given the same DFAT report that there has been no credible reports that the new government has harassed or ill-treated any supporters of the former Bainimarama government, and given the evidence by the applicant that his [Relative A] is living safe and well back in his own village and did not involve himself in politics directly and is working for the current government, the Tribunal finds that there is no real chance or real risk that, if the applicant returned to Fiji, he would suffer serious harm or significant harm for his association with his [Relative A] who has had been involved in politics in both sides of government.
Fearing for his life because of his prison ministry work back in Fiji
The applicant raised in his protection visa application that he feared that he would be harmed because of his work connections to a person in prison ministry back in Fiji. When the Tribunal raised with the applicant whether this was still a claim he wished to pursue, the applicant said it was not and that it was not a relevant claim to him anymore.
Given that the applicant has resiled his claim in this regard, the Tribunal finds that there is no real chance or real risk that, if he returned to Fiji, he would suffer serious harm or significant harm for reason of his prison ministry work in Fiji.
The Tribunal will now make an assessment on the applicant’s two claims confirmed by him at the hearing.
The Fijian health system will not meet his current health concerns
The applicant claims that the Fijian health system will not meet his current health concerns. The applicant only raised his health claims at a late time at the time of the hearing. His only elaboration at the hearing was that the Fijian health system would not be able to accommodate for his health concerns and needs if he was to return to Fiji. He stated that the Fijian health system was in chaos. In either instance, the applicant did not provide any further evidence to support these claims.
As put to the applicant at the hearing, recent country information portrays a strong health system back in Fiji. Thus, DFAT Country of Origin Information Services, Fiji dated 11 December 2023 provides the following relevant information on Fiji’s health system:
Most Fijians have access to free healthcare.[20] The Fijian health care system is the most complex and developed of the Pacific Island countries. [21]Approximately 70-80 per cent of the population have access to primary health care.[22] Higher than average regional health outcomes are reflected in comparatively high life expectancy at birth of 72 years. Healthcare is free and the government provides generous public health services, including free primary and secondary health care: preventive care, generalist and specialist services, and hospitalisation. X-ray and other support services are not generally subsidised.[23] Specialist healthcare is generally available, particularly in large hospitals.[24]
The quality of healthcare is better in urban areas and may be basic in rural areas, including the outer islands.[25] In rural and remote areas, public health care is limited, understaffed and many people travel hours for treatment.[26] In rural areas, there are often shortages of supplies and medications.[27] Most people access care through the public system; however, there is a growing private health care sector and a significant number of NGOs provide health care services to the public.[28] In August 2021, the Fijian government stated it was on track to meet the World Health Organization’s (WHO) target of one doctor per 1,000 people. The last official figures from 2015, showed 0.9 doctors per 1,000 people.[29] There is a government free medicine scheme for low-income individuals. There are five main hospitals in Fiji, four of which are state-funded institutions, and one – Suva Private – is a commercial facility.[30] Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor.[31]
… … …
Mental health care is available through the public health system, although most people are cared for at home rather than in medical facilities.[32] Mental health care through the public system is free, with the WHO noting that patients usually pay nothing at the point of service for care or medications.[33] Availability of care varies between locations; there is a lack of mental health services in more remote areas and counsellors are not available.[34] Fiji has one psychiatric facility (St. Giles Psychiatric Hospital in Suva) and four mental health outpatient facilities attached to other hospitals.[35] Facilities and treatment options at St. Giles are basic and medication may not be available.[36] There are also three units in general hospitals that provide inpatient mental health care.[37]
… … …
[20] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022
[21] ‘A review of health leadership and management capacity in Fiji’, UNSW, 2011, p.3
[22] ‘A review of health leadership and management capacity in Fiji’, UNSW, 2011, p.3
[23] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, p.6 paragraph 2.2, ‘Social Security Programs Throughout the World: Asia and the Pacific’, 2016, [United States] Social Security Administration, March 2017, p.80; 'Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance', UNICEF, February 2015, p. 147
[24] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.7
[25] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.7
[26] ‘5 Facts about healthcare in Fiji’, The Borgen Project, 31 July 2020
[27] ‘Fiji Country Security Report’, The Overseas Security Advisory Council US Department of State, 14 June 2023
[28] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.7; ‘A review of health leadership and management capacity in Fiji’, UNSW, 2011
[29] ‘Physicians (per 1,000 people)’, World Health Organisation, undated, accessed 9 June 2023
[30] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, p.6 paragraph 2.25; ‘How to Benefit from Government’s Free Medicines Programme: Akbar’, DEPTFO News, Fiji Sun, 16 February 2017
[31] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.7
[32] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.8
[33] ‘Mental Health Atlas 2020 Country Profile: Fiji’, The World Health Organization, 15 April 2022,; ‘Mental health in Fiji’, The Borgen Project, 30 March 2023
[34] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.8
[35] ‘Mental Health Atlas 2020 Country Profile: Fiji’, The World Health Organization, 15 April 2022,; ‘Mental health in Fiji’, The Borgen Project, 30 March 2023
[36] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.8
[37] ‘Mental Health Atlas 2020 Country Profile: Fiji’, The World Health Organization, 15 April 2022
The Tribunal has considered the applicant’s responses to this country information. The applicant, himself, agreed that the services provided were good but that there was an inadequacy of distribution of medicine and tablets through the health system in Fiji. While the Tribunal accepts on the country information that distribution of medicine can be in short supplies in rural areas, the applicant has provided evidence that he has worked in full time employment for government and Church in different areas of Suva and [Town 1] and has also completed tertiary [studies] as well. The applicant has shown an extensive employment and tertiary education history where he has been able to work in both urban areas and non-urban areas. He has shown an ability to move around to where both work and education opportunities requires him to be situated. He has not been restricted in one place where medicines and health services cannot be accessed. Thus, the Tribunal finds that he is not being prevented in utilising health services and medicines where they are available, nor are they being withheld from him for any refugee reason or for any other reason. On the country information before it, the Tribunal does not find that the applicant will be denied or not have access to adequate medicines or health supplies if he were to return to Fiji.
In assessing this particular claim, the Tribunal finds the harm feared by the applicant, namely the Fijian health system will not meet his current health concerns, to not be for any of the reasons in s 5J(1)(a) of the Act. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c) - that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct - are not satisfied. Further, the Tribunal finds that the harm feared by the applicant does not amount to serious harm and therefore the requirement in s 5J(4)(b) is not satisfied.
The current government is not yet stable enough to deal with the underlying threat of the opposition party who still have loyal supporters threatening people including the applicant who did not agree with the former government’s land and fishing right policies.
The Tribunal has considered the applicant’s claims here but does not accept them given that they are inconsistent with recent country information (DFAT Country of Origin Information Services, Fiji dated 11 December 2023) which was raised with the applicant and has been referred to already in this decision. Thus, in summary, it has been reported by DFAT that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected. Further, it has been reported that the transition to power has been peaceful.
Moreover, DFAT Country of Origin Information Services, Fiji dated 11 December 2023 goes further in its country assessment by reporting the following:
No reports were located of former Prime Minister Bainimarama, his supporters, or the military pursuing Fijians who opposed the former government, since the Rabuka government was elected.[38] In August 2023, DFAT stated that it was not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing Fijian nationals who publicly opposed him or his party since the change of government in December 2022.[39] DFAT further noted that it was not aware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.[40]
[38] Sources consulted include CISNET, UNHCR Refworld, The European Country of Origin Information Network (ECOI), US Department of State, NGO and human rights organisations, local news sources and major international newspapers
[39] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023
[40] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023
Given this country information that there has been no violence or repercussions from Bainimarama government supporters towards Fijians who publicly opposed Bainimarama and the former government, and given the lack of further evidence provided by the applicant, the Tribunal finds that, looking to the reasonably foreseeable future, there is no real chance that, if he was returned to Fiji, he would suffer serious harm due to the perceived instability of the current government to deal with the underlying threat of the opposition party who still have loyal supporters threatening people including the applicant who did not agree with the former government’s land and fishing right policies. The Tribunal, therefore, finds the requirement in s 5J(1) (b) of the Act is not satisfied.
The Tribunal has considered all the claims individually and cumulatively. Even considering all of these matters cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for one or more of the reasons in s 5J(1)(a) of the Act and finds the requirement in s 5J(b) of the Act not to be satisfied. The applicant therefore, does not have a well-founded fear of persecution under s 5J(1) of the Act.
As the Tribunal has found the applicant to not be a refugee, as it relates to his claim that the Fijian health system will not meet his current health concerns, it has also considered whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, he will suffer significant harm. The Tribunal notes that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal finds that the harm feared by the applicant, namely the Fijian health system will not meet his current health concerns to not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[41] None of the claims made by the applicant satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, the Tribunal finds that the claimed harm does not amount to significant harm.
[41] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).

As the Tribunal has found the applicant to not be a refugee, as it relates to his claims that the current government is not yet stable enough to deal with the underlying threat of the opposition party who still have loyal supporters threatening people including the applicant who did not agree with the former government’s land and fishing right policies, it has also considered whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk he will suffer significant harm. Given the evidence before the Tribunal that there has been no violence or repercussions from Bainimarama government supporters towards Fijians who publicly opposed Bainimarama and the former government, and given the lack of further evidence provided by the applicant, and given the finding of the Tribunal that there is no real chance that applicant will suffer serious harm were he to return to Fiji, the Tribunal finds that there is no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk he will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Clyde Cosentino
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2696

16 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Remedies