1932405 (Refugee)

1932405 (Refugee) [2023] AATA 861 (10 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Christopher Parish (MARN: 9791199)
CASE NUMBER:  1932405
COUNTRY OF REFERENCE:                   Fiji
MEMBER:David James
DATE:10 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 January 2023 at 2:19pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – union membership – termination of employment – economic situation in Fiji – employment opportunities – failed asylum seeker – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 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 2 July 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 14 November 2019. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 5 January 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review. However, the applicant’s representative, Mr Christopher Parish of South Australian Immigration Services, did not appear at the review hearing.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The applicant, when applying for the visa, outlined that his employment as a [Occupation 1] with the [Government Agency 1] had been terminated in December 2017. He claims his employment was terminated due to his union activities as a delegate with the Fiji Public Service Association. He outlined his claims for protection as being:
·Fiji has curtailed his human rights as a union delegate to fight and protect the fundamental rights of the workers.
·If he returns to Fiji, he will be victimised by the government and deprived of employment from other sectors because of his history of involvement with union matters.
·He has suffered physical and emotional stress as a consequence of being terminated from his employment. The government and private sectors are anti-union.
·Everywhere he goes he will be rejected for employment because of being a fighter for worker’s rights.
The applicant enclosed the following material with his application:
·     black and white photocopies of 2 photos depicting the applicant and other male persons standing in front of a building with a sign on it, ‘[name of building]’;
·     black and white photocopies of 2 photographs depicting the applicant inside a room with other men in what appears to be a gathering or meeting;
·     Copies of the applicant’s passport, birth certificate, and marriage certificate;
·     Certificate of Completion from [University 1] as to the applicant’s completion of a Higher Education Certificate Teaching in Technical and Vocational Education and Training and the applicant’s transcript of Academic Record for that award.;
·     2 certificates as to trade and training qualifications issues by the Ministry of Labour, Industrial Relations and Employment;
·     5 certificates of trade qualifications;
·     Letter from the Ministry of Infrastructure and Transport which states that:
This serves to confirm that [the applicant] was formerly employed as a [Occupation 1] with the department of [Government Agency 1] from 2000 until his termination of contract in 2017.
Furthermore, he was also the Fiji Public Service Association Union Representative for the department and was very vocal in carrying out his union duties and responsibilities.
·     A letter from [Church 1] attesting to the applicant’s role as a Public Service Association representative; and
·     A letter from the Fiji Public Service Association confirming the applicant’s membership with the association from 2010 till 2017.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 24 October 2019 to refuse the protection visa was made on the information before the delegate. The delegate accepted that the applicant may have been dismissed from his government employment for past union activities and may have been denied employment by some Fijian employers for being seen as a ‘trouble-maker’. However, as the applicant spent over two years in Fiji after his dismissal there was no indication that in this period, he was unable to subsist and he was never threatened nor did the applicant claim that he had been arrested, detained or physically mistreated while employed or after his dismissal. The delegate was not satisfied that the applicant would be denied any sort of employment in Fiji by employers across the country. The delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and was therefore not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The delegate also found that the applicant was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: s 36(2)(b) and s 36(2)(c) of the Act.
Invitation to attend hearing
On 19 October 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on Tuesday 8 November 2022. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 4 November 2022 the applicant’s representative Mr Christopher Parish of South Australian Immigration Services contacted the Tribunal by email seeking the scheduled hearing be postponed. He stated:
As advised over the phone it is regretted that the applicant [the applicant] had not been advised of the hearing due to be at 1-30 pm on the 8^th November next week.
The writer does not know how come the advice to the applicant was missed – except to say that the writer had been in hospital for a week which threw office matters out considerably.
The review applicant is in [City 1] from which town there are only 3 flights a week to Brisbane and apart from the lack of preparation he is unable to attend on the 8th November.
The situation is unfortunate and regretted and there is no option other than to ask for a later deferred hearing .
Kindly accept my apology and consider a later hearing.
The Tribunal in response to the postponement request notified the applicant through his representative on 4 November 2022 that:
The presiding Senior Member notes than an automated SMS hearing reminder was sent to your telephone number (Applicant), which advised you of your hearing date and reminded you to check the details of the hearing invitation. In this regard, we note that there has been no contact with the Tribunal until today in relation to your inability to attend your hearing.
The hearing will therefore proceed as set our below (8 November 2022, 1:30pm).
On Saturday 5 November 2022 at 5:54 am the applicant’s respondent informed the Tribunal that:
In regards to the AAT Hearing set for the 8^th November I advise that [the applicant] may not be able to attend.
The matter will be confirmed on Monday.
On Monday 7 November 2022 the applicant’s representative contacted the Tribunal both by telephone and then shortly after by email indicating that the applicant had not been permitted to fly from [City 1] to Brisbane due to Covid issues. The Tribunal in response postponed the hearing and then on 9 November 2022 notified the applicant through his representative of the new scheduled hearing date of 5 January 2023. A medical certificate confirming the applicant’s Covid symptoms was later provided to the Tribunal.
On Tuesday 3 January 20223 at 6.26 am the Tribunal received an email from the applicant’s representative in which he stated that:
Migration Agent has been informed that the abovenamed >> [the applicant] is not able to attend the hearing due on the 5th January. He asks if the AAT can telephone him on [mobile number]. Migration Agent does apologise for the inconvenience
This matter is very embarrassing and annoying to the migration agent who did not lodge the original application with the Immigration Dept and had very clearly in the past told the applicant that his case has no hope of success.
The Tribunal in response on 3 January 2023 informed the applicant’s representative that:
The Tribunal notes that the Applicant has had ample opportunity to make the necessary travel arrangements to appear in Brisbane. Therefore, the request for the Applicant to appear by telephone is refused and the Applicant will be required to appear before the Presiding Senior Member at the Brisbane Registry on 5 January 2023 at 9:00am (QLD time).
On 4 January 2023 the Tribunal received the following request from the applicant’s representative:
[The applicant] has telephoned the writer this morning and he asks if Telephone interview can be done Or >> arranged for VIDEO WEB INTERVIEW.
This is all very annoying and inconveniencing the writer and the AAT.
If the above cannot be accommodated can a future hearing date be set?
After receiving further information as requested including a Statutory declaration from the applicant’s employer, [Employer 1] in which it was outlined that the applicant was needed in his duties before and after his scheduled hearing date due to staff shortages. Given the nature of his [Occupation 2] duties and the Tribunal having ascertained that he would be able to attend his hearing via video-link the Tribunal proceeded with the hearing as scheduled but with the applicant appearing by video-link.
Country information
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including ‘Employment and welfare’ at 2.18 to 2.23 where at 2.21 the report states that:
Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
As to the ‘Political System’ the report at 2.28 to 2.29 states:
Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.
There are 14 provinces and one dependency (Rotuma, a group of islands about 500 kilometres north of the main Fiji islands, about halfway between Fiji and Tuvalu) as well as 13 municipal councils. Provincial councils for iTaukei residents also exist in some places, sometimes with the input of traditional village headmen. Provincial and local governments are appointed, not elected.
‘Security Situation’ which is outlined at 2.34 of the Report and provides that:
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).
‘Political Opinion (Actual or Imputed)’ at 3.25 to 3.39 where it states at 3.25 that:
The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.
And at 3.32 under the sub-heading of ‘Opposition parties’ it is reported that:
Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.
And ‘Conditions for returnees’ at 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.
Review hearing – 5 January 2023

The Tribunal hearing was conducted at the Brisbane Registry in the English language with the applicant appearing via video-link. The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criterion explained that his discussions with his representative as to the statutory framework had not been very clear and he requested the Tribunal provide a further explanation to him.
The Tribunal then provided an outline of the refugee and complementary criterion to the applicant who acknowledged that he understood the criterion but that having heard the explanation as to the grounds of persecution, for the refugee criterion, and the types of harm in relation to complementary protection, he said he did not meet the five grounds of persecution or any of the complementary grounds as his application was in relation to his employment opportunities in Fiji. He further explained that he wished to stay in Australia and that at his previous employment he was a union representative and the government had not recognised his position and this had caused him to fear that he would not be able to obtain further employment.
The applicant confirmed his claims as those that had been outlined in his application for the visa; see paragraph 15 above. The applicant’s evidence as relevant (in summary) was that:
·He was presently living in [City 1], where he was working for [Employer 1] as a [Occupation 2] and had been in that position since the 5^th of April 2022. He stated that when he arrived in Australia, he had initially obtained employment as [Occupation 1] with a subcontractor for [Company 1] at the [mines] and had worked in that position for about 2 years.
·He has 5 children, aged [age], [age], [age], [age] and [age] years of age. The two youngest are still at school, and his [age]-year-old child is studying [Discipline 1] and his [age]-year-old is completing [Discipline 2] studies. All of his children but his eldest child who lives away and works as a [Occupation 3] reside in the family home with his wife. He supports his family by sending them money. He stated that he earns about $2,200.00 a fortnight on average depending on the hours he works and sends about $800.00 a fortnight back home to his family in Fiji.
·He fears returning home as although there is a new government there is uncertainty in the economy and if he returns it will be difficult for him to find a job and be able to support his family. He explained that he is presently paying for the construction of a new home and if he was without a job he could not pay for the family’s new home.
·He confirmed his work history in Fiji as:
o[Employer 2], apprentice [Occupation 4]/[Occupation 1], October 1989 to August 2000;
o[Employer 3], [Occupation 4], September 2000 to November 2004;
o[Government Agency 1], [Occupation 1], December 2004 to December 2017 when his contract of employment was terminated; and
o[Church 1], volunteer community worker, January 2018 to April 2019.
·He had joined the Public Employees Union in 1989 in Fiji and when the union ceased to operate, he joined the Fiji Public Service Association in around 2020. He confirmed that his union membership and union activities were known to all of his Fiji employers and explained that in Fiji ‘you join the union and then the union finds you work’. He said that he had not experienced any serious problems as a result of his union membership but that when he had advocated for rights and conditions sometimes the attitude of his employers changed and there were some instances of name calling or being moved around the workplace to different roles. However, he agreed but for his termination in 2017 he had never been punished for his union activities by any of his past employers.
·As to his termination of employment in 2017, he stated that he had received a termination letter which he had provided to the department. See above at paragraph 16 as to the letter from the Ministry of Infrastructure and Transport dated [in] 2019.
·When questioned about his termination letter which was dated after his termination and appeared to be a letter of service and recommendation, which highlighted his union advocacy in what seems to be a positive notation (see paragraph 16 above). The applicant said he interpreted the letter as having identified his advocacy for the rights of workers as the reason for his termination. (The Tribunal does not accept this interpretation of the letter given the wording of same).
·He said that when he was terminated, he was terminated together with about six other workers. In reply to the tribunal questioning him as to whether he had been terminated due to the poor economic situation in Fiji and not his union membership; the applicant did not agree and said that he believed he had been terminated for his union membership. He further explained that as he was the only [Occupation 1], and he was later replaced with another [Occupation 1] he had in his view been terminated for his union activities. As to his letter of termination, he said he believed it was written to glamorise his union membership and it did not really explain why he was terminated.
·After his termination he confirmed he worked as a volunteer community worker for [Church 1] who were funded by community donations.
·He explained that after his termination, he had applied for some other work but was not successful. In reply to further questions as to how he had supported himself and his family, he stated that a friend who was ‘self-employed’ had given him some casual construction work building houses throughout the period from his termination of employment until he left for Australia. He agreed that he did have employment after his termination and that it had been sufficient to support himself and his family.
·As to his claims he confirmed he had worked for the government and had his employment terminated. He said he had been victimised by the leadership in Fiji predominately because of his advocacy but he was unable to provide any examples of such victimisation and he agreed that since 2010 and his membership and advocacy with the Fijian Public Service Association there had been no action taken against him.
·As to his fears of victimisation from the government and being deprived of employment, he stated that the new government was more lenient to unions and workers rights. As such he indicated that he no longer held these concerns given the recent change of government in Fiji. However, he repeated his fear that it could still be difficult for him to support his family given the current economic situation in Fiji as he believes the new government has been left with an enormous debt from the previous government.
·In relation to suffering physical and emotional stress, as a consequence of being terminated from employment and the government and private sector being anti-union; he said this was no longer the case and he no longer held those fears given the recent change in government. However, he again repeated his concerns that there was little to no employment opportunities in Fiji due to the current economic situation.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be citizen of Fiji and provided a copy of his passport, based on this material the Tribunal finds that the applicant is who he says he is, and a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[1] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[2] This is consistent with the established proposition that it is for the applicant to make his or her own case.[3]
[1] Section 5AAA of the Act.
[2] Ibid (with effect from 14 April 2015).
[3] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal; required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[4] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[5]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[4] Fox v Percy (2003) 214 CLR 118
[5] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] A similar approach is taken in the Department’s Refugee Law Guidelines[7] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[8] which provides useful guidance for this Tribunal.
Membership of a particular social group – union membership and an actual and/or imputed anti-government political profile (union membership)
[6] SZLVZ v MIAC [2008] FCA 1816 at [25].
[7] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[8] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal accepts that the applicant was a long-term union member and union advocate as evidenced by the letter from the Fiji Public Service Association dated [in] 2019 and the letter from the Ministry of Infrastructure and Transport dated [in] 2019 referred to by the applicant as his termination of employment letter. However, given the contents of the termination letter that seems to compliment the applicant for his union duties and responsibilities and the applicant’s evidence as to the then and now poor economic situation in Fiji with its lack of employment opportunities, the Tribunal is not satisfied that the applicant’s employment was terminated solely because of his union membership and duties.
As to the applicant’s claim of having his human rights violated, the applicant relied upon the employment opportunities in Fiji after his termination and was unable to provide any evidence to suggest that the Fijian government had excluded him from employment after his termination. Further in evidence, the applicant disclosed that he had been able to obtain casual work in the construction industry which was sufficient to support himself and his family. The Tribunal does not accept that the applicant’s human rights were violated as a result of his employment being terminated and being unable to obtain permanent employment in Fiji. The Tribunal also notes that the applicant’s evidence was to the effect that at the time of his termination Fiji was in a state of economic instability, and there were little to no job opportunities in Fiji. The Tribunal does not accept that if the applicant was to return to Fiji he would be victimised by the government and deprived of employment both in government and other sectors.
Additionally, the Tribunal notes that the applicant’s own evidence was to the effect that given the recent change of government in Fiji, he no longer had fears of being victimised by the government and deprived of employment due to his union membership. He explained to the Tribunal that given the new government was more lenient towards unions and workers’ rights he did not now fear being victimised due to his past union activities. The Tribunal finds that the applicant’s fears in relation to returning to Fiji are limited to his concerns as to employment opportunities generally and not as to any specific targeting and/or systematic persecution that would be aimed at him due to his past union membership, union advocacy and any actual and/or imputed political profile arising from his past union membership and activities.
The Tribunal finds that the applicant’s fears of victimisation and being deprived of an opportunity of employment arising from his union membership and any actual and/or imputed political profile arising from his unionism are not well-founded.
Failed Asylum seeker
The Tribunal has also considered the applicant’s position as a failed asylum seeker. The Tribunal notes that the applicant did not experience any difficulties in departing Fiji on his own passport and when the relevant Country information was discussed with the applicant, he agreed that he had no fears in this regard but for his ability to obtain employment and provide for his family. The Tribunal noting the relevant country information finds that the applicant does not a face a real chance in the reasonably foreseeable future of being persecuted as a failed asylum seeker.
Refugee criterion
The Tribunal having considered all of the applicant’s claims both individually and cumulatively does not accept any of the applicant’s claims and is not satisfied that there is a real chance of serious harm for reasons of his membership of a particular social group being a member of a union or having an actual and/or imputed anti-government profile arising from his union membership and activities or being economically prejudiced due to limited employment opportunities, which is a situation faced by the population generally in Fiji and/or being a failed asylum seeker. The Tribunal is not satisfied on the evidence before it that there is a real chance the applicant will suffer serious harm amounting to persecution for any other reason either. The Tribunal finds that the applicant’s fear of persecution is not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) 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.
As the Tribunal has found that the applicant does not meet the refugee and complementary protection criterions and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Fiji.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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.
…

[2023] AATA 861

10 January 2023

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