1934026 (Refugee)

1934026 (Refugee) [2022] AATA 4194 (31 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1934026
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Haag
DATE:31 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 31 October 2022 at 10:18am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – fear of harm from military and police – opponent of government’s change to contract system for his occupation – warned by senior staff and member(s) of political party – no evidence of activities or warnings provided, and no harm – member of opposition political party – information provided by member of parliament unreliable and no other evidence of membership of activity provided – supporter rather than member – country information – late claim by second applicant on ground of domestic violence withdrawn and no proper basis acknowledged – adverse inference on credibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 201 FCR 505
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 26 November 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji applied for the visas on 16 January 2019. The delegate refused to grant the visas on the basis that the primary applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and is 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).
The applicants appeared before the Tribunal on 10 October 2022 to give evidence and present arguments.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 5AAA of the Migration Act 1958
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant in this case to specify all particulars of a 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 the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Applicant’s identity – ‘receiving country’
The applicants provided the Department with a copy of their Fijian passports, and other documents that demonstrate he is a citizen of Fiji. The identity of the applicants is not in issue in the review.
The documents provided by the applicant is consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any country other than Fiji. Therefore, based on the information provided by the applicant, the Tribunal finds that the applicant and the secondary applicant are citizens of Fiji, and as such protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Migration history
[The applicant] was granted a visitor visa on 19 December 2017[1]. He departed his home country Fiji, from Nadi airport [in] September 2018 using his Fijian passport. He arrived in Australia [in] 22 September 2018 as a visitor. The applicant entered Australia as the holder of a FA 600 visitor visa. On 24 October 2018 the applicant applied for a permanent protection visa (XA 866) that was deemed invalid. On 16 January 2019 the applicant lodged a valid application for a permanent protection visa (XA 866).
[1] Unless otherwise indicated, all following information is contained in Department file [number].
On 23 January 2019 the applicant was granted a bridging visa C (WC 303) which is currently in effect.
Between June 2015 and August 2015, the applicant visited [Country 1]. In the visa application he gave ‘study’ as the reason for visiting [Country 1].
[The second named applicant], who is the applicant’s spouse, was granted a visitor visa on the same date as the applicant, namely 19 December 2017. She departed her home country Fiji from Nadi airport using her Fijian passport and arrived in Australia [in] September 2018.
The second named applicant arrived in Australia as the holder of a visitor visa. The applicant included her in the application for a protection visa on the basis that she is a member of the same family unit as the applicant.
Claims for protection and supporting documents
In the application for a protection visa the applicant provided the following reasons for leaving Fiji:

1. Feb 2018 I resigned from [Employer 1] as [an Occupation 1].[2]
2. I resigned because I do not support the new contract system
for [Occupation 1]s implemented by the current government.
3.In 2016 I began to voice my opinion about the working con
tract system for [Occupation 1]s newly implemented by the current
Bainimarama government. I totally disagree with terms and c
onditions of the contract.
4.So, from 2016 to 2017 my senior officers of [Employer 1] verbally warn me of the consequences of what I was
doing.
5. During this time I turned to a political party the Social
Democratic Party of Fiji voicing my opinion and they support me
because the next election they will take away the contract system
for government workers as part of their manifesto.
6.I was told and warned by our senior officers of [Employer 1] to stop what I was doing. But I kept voicing my
disagreement on the contract.
7.I know the pressure from my senior staff was tremendous so i
[2] Applicant’s emphasis here and following.
decided to resign on Feb 2018.
8. After resigning I was still vocal on the contract and the
government of the day about their leadership using my support to
the political party as a means of voicing my opinions.
9. A member of the political party warned me that the police
and the army are after me trying to apprehend me from further
interference. After a few days I made my mind that I have to run
away fearing my life as I have seen people being brutally treated
because they voice their opinion about the government of the
day.
10. So we decided to leave the country leaving everything in Fiji.

In the application the applicant indicated that he had not experienced harm in his home country. He also stated that he did not move or try to move to another part of his home country to seek safety.
In the visa application form the applicant was asked to provide details for why he did not try to move to another part of Fiji. He provided this response:
The country belong to the current government.They can easily
get you out from where you are hiding.They have the resources
and the manpower so you can not hide from them.
As happened before where people are arrested from homes and
anywhere and brutally tortured. Some were severely injured and
others died.
In the visa application from the applicant was asked to explain what he thinks will happen if he returns to Fiji. He provided this response:
It is clearly evident that people who voice concerns about the
government will be apprehended. As happened in the past and
is still happening hence if i go back to ill be apprehended and
brutally assaulted because I am voicing my opinion.
The same government that has a history of brutality ending
in death is still here running the government for the next four years.
In the visa application from the applicant was asked does he think he will be harmed or mistreated if he returns to Fiji. He provided this response:
Yes
The applicant was asked to elaboration the forgoing answer. He was asked to give details including: the type of harm or mistreatment he is likely to experience; the person/persons who would be responsible for the harm or mistreatment and why they would harm or mistreat the applicant. The applicant provided this response:
Arrested and interrogated
The police and the army will arrest and interrogated me because I
feared my life being victimised hence I ran away from them.
As soon as I come back to Fiji they will find me.
The applicant was asked does he think the authorities in Fiji can protect him if he returns to Fiji. He provided this response:
No
The applicant was then asked to give details about why he thinks the authorities could not, or would not, protect him. He provided this response:
The system is theirs and everything belongs to them. The army
and police leadership belongs to them so they are in total control
of the people in the security of the nation.
Even the judicial system is not independent. They have control over it.
The applicant claimed he would not be able to relocate within Fiji to an area where he would not be harmed. He was asked about why he is unable to relocate withing Fiji and he gave this response:
Relocation to any other part of Fiji is not the right option for me.
This people and the government in Fiji controls everything from
land, sea and air. They are easily accessible to any part of Fiji as they have total control over resources and manpower in Fiji.
According to the visa application form [the second named applicant] is not making her own protection claims.
The applicant provided documents to the Department in support of the visa applications including:
a.A document ‘To Whom it May Concern’ dated 19/11/2015. The document is on the letterhead of [Employer 1] and states it was signed by [Mrs A] for ‘The Acting [office holder]’. The document confirms that the applicant is employed by the [Employer 1] as [Job title] at [Section], [Workplace], Suva. Additionally, the document confirms the applicant has been in service for the lase twenty-six years.
b.A work reference on letterhead of [Employer 1] which states it was signed by ‘[office holder, [Mrs B]. The document is dated ‘04/05/2017. This document confirms the applicant was employed by [Employer 1] as a head [Occupation 1] on contract w.e.f 27/06/2016 to 28/06/2019 at [Workplace]. Additionally, the document confirms the applicant was employed by [Employer 1] for twenty-eight years.
c.Documents that verify the applicant’s contributions whilst in Australia to various charitable purposes in support of people in need of assistance.
d.The applicant’s Curriculum Vitae
e.The secondary applicant’s Curriculum Vitae
f.Photograph of a male person on the tray of a truck being assisted by several persons who appear to be holding a bandage to his forehead. The applicant does not say he is depicted in the photograph.
g.A country report on Fiji prepared by Amnesty International, London, published in 2016. The report has the title ‘Beating Justice’ with the sub-heading ‘How Fiji’s Security Forces get Away with Torture.’
The Tribunal read and considered all the documents the applicant lodged with the Department, and the documents listed below in [31].
The applicant also provided documents to the Tribunal including:
a.A joint statement in which the applicant and [the secondary applicant] state the applicant is now the secondary applicant and [the second applicant] is the primary applicant. They state jointly that [the second applicant] came to Australia for protection from ‘severe domestic violence.’
b.This joint statement was accompanied by a large body of country information that reports on domestic violence in Fiji.
c.A letter of support with the date 15 July 2019 on letter head of the ‘Hon. [Mr C] MP’ with a signature in that name at the foot of the letter.
d.Three documents reporting on instances of alleged brutality by the military or police in Fiji, dated 19 March 2012; 5 March 2013, updated 18 July 2018; and 4 December 2016 respectively. The documents report on brutality to people in the custody of military personnel in relation to an attempt by soldiers to murder the Prime Minister Josaia (Frank) Bainimarama, referred to in the article as ‘dictator.’ The documents report on government officers acting brutally, one draws on a video recording of a person being beaten by people who appear to be ‘officials and similar reports;’ another document appears to be a summary of incidents of police brutality towards suspected criminals in police custody, and that this behaviour is entrenched. Another is a copy of the 2016 Amnesty International report on Fiji (see [29g.]).
e.A bundle of documents reporting on conditions in Fiji:
·An undated and unsourced document that narrates the circumstances around the Attorney General, and allegations he was behind a fatal bombing on political rivals in the aftermath of the 1987 military coup;
·An undated document that seems to summarise other documents that report the [Church] in Fiji has a history of supporting military coups in Fiji.
·A character reference for [the applicant] dated 7 July 2022 on the letterhead of the ‘[Church] in Australia.’ The author of the document is the head of the Church in Australia. He speaks to the applicant’s good character and that the Reverend appointed the applicant to the position of Pastor responsible for the whole of [State].
·A reproduction of an academic paper attributed to the Australian National University that addresses the role played by tribal chiefs in Fijian society and public administration.
·A paper attributed to Sanjay Ramesh, Sydney, Australia with the date 30 April 2007. The paper discussed four military coups that occurred in Fiji and expresses various opinions concerning the coups.
·An opinion paper attributed to Graham Leung with the date 13 March 2021. The paper focuses on aspects of the recent political history of Fiji and the role of the military.
·A paper attributed on John Braddock and Amnesty International which reports on allegations that police and the authorities in Fiji have tortured individuals in their custody.
·A report with the heading ‘Freedom In The World – Fiji 2022 Report.’ The report advances opinions on the nature or Fijian society and current politics. The report opines that the government institutions may be used repressively.
·A letter of support for [the applicant] signed by [Ms D], President of [Organisation 1] with the date 26 June 2022. The document references that the applicant’s experience as [an Occupation 1] led to him being appointed Chair of [a Group] of the [Organisation 1] for the 2022 year, and the applicant has been active and effective in that role.
·A report attributed to Jenny Hayward-Jones with the date March 2013 that reports on alleged incidents of police brutality in Fiji and is highly critical of Prime Minister Josaia (Frank) Bainimarama and his role in leading a military coup in Fiji and undermining the established institutions of good government.
·A document with the heading ‘Analysis of leadership in Fiji’. The document is undated, and the name of the name author is not clearly identified. The document traverses the history of leadership and government in Fiji and the preceding period of British colonial rule to present times.
·A discussion paper attributed to Joshua McDonald with the date 30 November 2020 that discusses the concerns of the Fijian Law Society about mounting reports of acts of brutality by police and members of the military.
The Hearing
The applicant gave evidence at the hearing on 10 October 2022. [The second applicant] was present throughout the hearing: she is married to the applicant and the secondary applicant for the protection visa.
At the outset of the hearing, in speaking to both the applicant and the secondary applicant, it was established that consistently with the application made to the Department for the protection visa, the secondary applicant did not make her own claims for protection. Rather, she relied on him being granted a protection visa and that they are members of the same family unit. [The second applicant] informed the Tribunal that she relied on being a member of same family unit as the applicant, her husband, and that she did not make her own claims for protection.

Towards the conclusion of the applicant’s evidence at hearing, the Tribunal addressed the applicant to the new set of written claims he lodged by email with the Tribunal, that claimed [the second applicant] was owed protection on the basis of domestic violence in Fiji, and he was owed protection as a member of the same household unit as his wife.
The family violence claims were first raised with the Tribunal in writing on 30 March 2021. The claims were not made, and they were not the subject of evidence prior to the primary decision to refuse the visa on 26 November 2019.
In evidence at hearing the applicant made no reference to the domestic violence claims and offered no evidence in support of those claims. This position was consistent with the absence of written evidence that particularised any acts of domestic violence that [the second applicant] or [the applicant] suffered or feared they would suffer, if either or both returned to Fiji. There was no evidence of either applicant having experienced domestic violence in Australia.
[The applicant] submitted the domestic violence claims to the Tribunal. In response to the Tribunal addressing the applicant to these recent claims, it became evident he did not want to proceed with the claims. The Tribunal asked the applicant if he wanted to withdraw the claims. He said that he wanted to do so, and he acknowledged that there was no proper basis for making the claims.
The Tribunal inquired of [the second applicant], whether she withdrew the domestic violence claims. She informed the Tribunal that she wanted to withdraw the claims. [The second applicant]’s position was consistent with the complete absence of any evidence that she had suffered domestic violence, or that she feared she would suffer domestic violence if she returned to Fiji. It is also consistent with [the second applicant]’s informing the Tribunal that she did not make her own claims for protection, and that she relied on being a member of the same family unit as her husband, the first named applicant.
The Tribunal is satisfied that the applicant, [the applicant], is responsible for claiming protection based on family violence in Fiji and that he did so after the primary decision to refuse the applications. The Tribunal is also satisfied that the claims and the supporting evidence was not put before the primary decision maker.
The Tribunal is satisfied that [the applicant] lodged the domestic violence related claims, and the extensive country information to support those claims, for the purpose of advancing the prospects of success in this review proceeding. The Tribunal is also satisfied [the applicant] made the domestic violence related claims and provided the related country information to the Tribunal, in the knowledge there was not any proper basis for making the claims.
Finding adverse to the applicant’s veracity and reliability as a witness
The Tribunal considers that in respect of the domestic violence claims that:
·they are claims being made after the primary decision;
·there was an absence of evidence in support of the claims to demonstrate that either [the first or second applicants] had ever suffered domestic violence;
·there was an absence of evidence that either [the first or second applicants] feared they would be at risk of suffering domestic violence if removed to Fiji, now or in the reasonably foreseeable future; and
·considered in combination with the withdrawal of the domestic violence claims at hearing, and [the applicant]’s concession to the Tribunal that there was no proper basis for making the claims, cause the Tribunal to have significant doubts about the veracity and reliability of the applicant as a witness.
The applicant at risk because he was an active member of the Social Democratic Labour Party (SODELPA).
At hearing the applicant said he can’t return to Fiji because he was an active member of the opposition party, namely the SODELPA. The applicant accepted the SODELPA issued membership cards and provided receipts for membership fees.
The applicant provided no documentary evidence such as a membership card and receipts for payment of fees. The Tribunal noted earlier that the Hon. [Mr C] MP provided a letter of support to the applicant; it forms part of the evidence in this review. According to the evidence [Mr C] and the applicant were work colleagues. The document asserts the applicant is a ‘renowned and strong supporter’ and vocal member of the SODELPA from ‘its years of inception till to date.’ The latter statement is remarkably imprecise and vague in nature. It leaves unclear just when the applicant began to support the party and whether he was a member of the party. The document does not state the applicant was a member of the party. The difference between supporting a political party and membership of a political party is both self-evident and significant.
[Mr C] states that the applicant worked collaboratively with the party ‘from the last two elections.’ This is a general statement, vague in nature, and it is unsubstantiated by compelling specifics about the nature of work performed by the applicant in support of the party at the elections he is referring to.
It is also reasonable to expect [Mr C] MP to specifically state the applicant is a member of the party as distinct from a supporter of party, if the applicant was in fact a member of the party.
Considering the applicant, without explanation, provided no documentation such as a SODELPA membership card, receipts for payment of membership fees or other records or party issued documentation, capable of verifying that the applicant was a member of the SODELPA; that [Mr C] MP did not specifically state the applicant was a member of the party, instead saying he supports the party; the vague and non-specific general statements [Mr C] MP makes about the applicant being involved in party related political activities, on balance, the evidence relevant to establishing the applicant was a member of the SODELPA, is insufficient to establish to the satisfaction of the Tribunal that the applicant was a member of SODELPA.
At hearing, the applicant relied substantially upon the Tribunal accepting he is at risk of being harmed in Fiji because he actively opposed a government policy to change the legal basis upon which [Occupation 1]s would be employed by the government.
As the Tribunal understands the evidence, the long-standing relationship between [Occupation 1]s and the government gave [Occupation 1]s certainty of continuous employment until they reached retirement age of either 55 or 60.
In evidence the applicant asserted the FijiFirst party in government led by Frank Bainimarama, proposed to replace this agreement with performance-based contracts renewable after three years, that required [Occupation 1]s seeking re-employment to meet work performance benchmarks.
The applicant claims he faces a risk of harm from members of the military and police force because of his history of opposing the government’s new employment contracts for [Occupation 1]s. The applicant claims he would be brutally assaulted and interrogated by police or military personnel if he is returned to Fiji. He also claimed his life would be at risk if he is removed to Fiji. The applicant seeks to support these claims with the country information he provided to the Department and Tribunal that speak to prior reports, about incidents of brutality by police and military personnel against people in their custody. He also relies on the ‘To Whom It May Concern’ document he obtained from his friend and former [Employer 1] colleague, now member of the SODELPA in opposition in the Fijian Parliament, the Hon. [Mr C] MP. The Tribunal has already referred to this document and will return to it.
The May 2022 DFAT country information report for Fiji (May 2022 DFAT report) informs that police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults do occur on some individuals in custody, and that preventative monitoring and accountability systems are not implemented or implemented effectively.
The country information before the Tribunal indicates police in Fiji frequently assault criminal suspects in their custody. The country information before the Tribunal does not indicate that since the 2014 national election police, or the military have been used by the government to persecute [Occupation 1]s who, legitimately exercise their fundamental human right of free speech, and actively disagreed with the government’s policy to employ [Occupation 1]s on limited term contracts, with an opportunity of renewal of their contract, subject to achieving a favourable performance review. There is no evidence that the applicant opposed [Occupation 1] contracts by any means or in any manner regarded in Fiji as illegal or that he was subjected to physical harm by police or military personnel in Fiji, or any other state-sponsored actors.
Relevantly, the 2014 and 2018 general elections in Fiji were judged to be credible by the Multinational Observer Group led by Australia. Both elections resulted in the election of Josaia Voreqe (Frank) Bainimarama, the leader of the coup d’état in 2006 that ousted the government of the country. The political party Josaia Voreqe (Frank) Bainimarama, subsequently established, FijiFirst, was first elected to govern the country in 2014: see 2022 DFAT country information report [2.4]. In this context, and according to the applicant’s evidence at hearing, the government first implemented employment contracts for [Occupation 1]s in 2016, and the applicant publicly criticised the policy.
The 2022 DFAT country information report informs:
5.1 The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.
5.2 The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.
5.3 Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état (see Recent history) are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.
To the extent that the country information provided by the applicant reports allegations of acts of brutality and persecution by members of the military, and that the Attorney General of Fiji was involved in acts of extreme violence against political opponents, the Tribunal places greater weight on the current 2022 DFAT county information report that informs the Military in Fiji is well regarded by the general population, and that the Military is unlikely to hinder the day-to-day activities of most Fijians.
Furthermore, the DFAT report informs that Fiji is a politically stable country. The most recent elections in 2018 were orderly and free from violence: [2.34]. DFAT also reports that:
2.4 Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s FijiFirst party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia.
Considering this DFAT country information, it is reasonable to apprehend that the political situation in Fiji has stabilised, and the 2006 coup d’état led by Josaia Voreqe (Frank) Bainimarama, the current Prime Minister of Fiji, has been superseded by the 2014 and 2018 elections, and that the Prime Minister, and the governing party he leads is widely regarded by Fijians to be legitimate, and the democratically elected government of Fiji.
The 2022 DFAT country information report informs of reports of alleged incidents of police harassing members of opposition parties, and that such incidents are likely to be the result from orders given by senior persons in the police force, military, or government. The Tribunal reproduces relevant parts of the report as follows.
3.36 DFAT is aware of allegations of police harassing members of opposition parties. In-country sources told DFAT that such incidents are likely the result of orders from senior people in the police, military or government. Police allegedly use the Public Order Act to effect arrests in order to prevent opposition meetings, prevent protests or even shut down debate. Opposition parties use social media regularly but may self-censor.
3.37 For example, in 2020 police raided a meeting held by Rabuka in Rakiraki in the north of Viti Levu. The meeting was stopped because Rabuka allegedly did not have a permit for a meeting of more than 10 people. Police were aware of the meeting going ahead as organisers had sought clarification on a permit to operate outside of a curfew implemented to control COVID-19. The dispersal was apparently peaceful and the media reported that police headquarters in Suva had asked Rakiraki police for an explanation of the events.
3.38 The events described above have been directed at high-profile people within the opposition. DFAT understands that rank and file and low-profile opposition party members would be much less likely to experience interference. Those involved or perceived to be involved in opposition parties who facilitate high-profile criticism (for example, journalists or social media users) may be questioned by police, but DFAT understands that this is not a widespread problem affecting low-profile party members.
3.39 Politics and parliamentary tactics can be energetic and robust. Opposition political parties and figures are public with their views, and efforts to discipline them are in accordance with the law. DFAT assesses that opposition political parties and their members experience a low risk of official violence but notes that discrimination in the form of questioning or restriction on activities is possible.
Relevant to the weight to be given to the country information concerning harassment of members of opposing political parties, is the finding that the Tribunal is not satisfied the applicant was ever a member of the SODELPA.
Further, the country information provided by the applicant does not report that since the 2014 election, or during the period between the implementation of the new [Occupation 1] employment contracts in 2016 and the applicant’s departure from Fiji in 2018, that [Occupation 1]s who actively opposed employment contracts were targeted or harmed by members of the military or police. Relevantly, the applicant stated in his visa application form that he did not experience harm in Fiji.
The applicant claims that the trigger for him leaving Fiji in fear for his life was information he received from a member(s) of the SODELPA, that he was under surveillance by a group of officers in the army and police, and that he was at risk of arbitrary detention and persecution. According to the applicant, this caused him to fear for his life and leave Fiji. Consequently, he departed Fiji [in] September 2018 and arrived in Australia on the same day.
Keeping in mind the forgoing considerations, the Tribunal will consider further the essential reason relied on by the applicant to establish if he faces a real chance of persecution if he is removed to Fiji.
In evidence at hearing the applicant claimed he was an active member of [an] opposition political party, namely the SODELPA, and as [an Occupation 1], he voiced his opposition to the implementation of employment contracts for [Occupation 1]s. His membership of the opposition political party and public criticism of the Government’s [Occupation 1] contract policy resulted in him fearing he had been targeted for detention and torture by members of the military.
According to the applicant’s evidence, the government implemented the new employment contract policy in 2016. The applicant objected to the contracts because they would jeopardise the existing financial arrangements [Occupation 1]s had with banks. The applicant had arranged his financial affairs so that deductions from his salary were made and allocated by the bank to pay for his properties.
The applicant’s evidence indicates that his reasons for opposing the employment contracts were financial in nature and related to his personal financial arrangements with a bank, and the existing financial arrangement of other [Occupation 1]s and their banks. The applicant has not given evidence of being joined and supported by other [Occupation 1]s in the circumstances in which he asserts he spoke against the government’s [Occupation 1] contract policy.
Furthermore, the applicant has not asserted that he opposed the contracts because he was concerned that the contracts would impact negatively on the quality of [service] delivered to [people], or that the contracts were or are likely to operate in a discriminatory way and against their apparent intended purpose, namely to improve [Occupation 1] standards and the efficiency of [Occupation 1]s in Fiji.
The Tribunal asked the applicant to provide specifics of the steps he took in opposing the implementation of [Occupation 1] contracts. In summary, he said he spoke critically about the contracts to branch office holders of the SODELPA. Additionally, he attended to about three meetings of party members held at different branches of the party. At these meetings he raised his criticisms of the contracts from the floor for the purpose of raising awareness of the issue. All these meetings occurred in 2016.
According to the applicant’s evidence at hearing, in addition to his activities summarised above, on a few occasions he expressed his opposition to the contracts to his colleagues in the head office of [Employer 1] in Suva where he was working at that time. In part this evidence is consistent with the Curriculum Vitae (CV), which he lodged with the Department in support of the visa application. According to the CV, in 2016 the applicant was acting in the position of Senior [Job title], in [Employer 1].
According to the applicant’s oral evidence, after a meeting with party officials, a senior party member told him that if he continues, he will be given a warning letter and his employment terminated. The applicant told the Tribunal he does not remember the name of the person who said that. On another occasion the applicant went to party headquarters to try again to persuade the party to actively oppose the contracts for [Occupation 1]s. To this point the party did not oppose the government’s policy. In June 2016 unnamed party officials told the applicant he will be given a warning letter if he continues to agitate against the [Occupation 1] contracts.
As the Tribunal understands the applicant’s evidence, the warning letter the applicant was told to expect was provided for in [Employer 1] rules that applied to all employees of [Employer 1]. Further, according to the applicant, the rules properly allowed for [Employer 1] officials to issue warning letters to employees of [Employer 1]. However, the applicant said in evidence he was never given a warning letter.

According to the applicant’s evidence on or about September 2016 he applied to be posted to [an Occupation 1] position. The application was granted and signed by [Employer 1] on the advice of the [office holder] of [Employer 1].
According to the applicant’s evidence, he transferred to [an Occupation 1] position and retained his service ranking. Upon transfer from the [Employer 1] offices in Suva, he worked as [an Occupation 1] [working] for 14 weeks. In January 2017 he transferred to a different [workplace] where he took up the position of head [Occupation 1], a position the applicant equated to [Position 1] in the Australian [system].
The evidence and country information considered together, is insufficient to satisfy the Tribunal that the warnings given to the applicant that he may receive a warning letter that may lead to the termination of his employment for speaking out against [Occupation 1] contracts, referred to a potentiality that was politically motivated, rather than a warning the applicant may face disciplinary action for breaching rules that apply to all [Occupation 1]s. Nevertheless, the applicant was never issued with a warning letter, and he was permitted to transfer to a [Occupation 1] post, and shortly thereafter in early 2017, he was appointed to the position of head [Occupation 1]. The applicant does not claim his position as head [Occupation 1] did not align with his [Occupation 1] ranking, qualifications, and occupational experience.
According to the applicant’s evidence at hearing he continued to speak out against [Occupation 1]s being employed on contracts. In late 2016 and 2017, after the applicant transferred from the head office of [Employer 1] in Suva, he spoke to [people] at the [workplace] against [Occupation 1] contracts. The applicant asserts that some of the [people] were police or members of the military, but he did not know that at the times when he was speaking against employing [Occupation 1]s on contracts.
According to the applicant’s oral evidence, in April 2017 he went again to the SODELPA about the government’s [Occupation 1] contract policy. On that occasion, according to the applicant, a member of the party warned him that the army knows what he is doing. As the Tribunal understands the applicant’s evidence, he understood from that information army personnel had targeted him because he opposed [Occupation 1]s being employed on contacts. Consequently, the warning caused him to fear he would be detained and tortured. This warning, and the related fear led him to leave Fiji in fear for his life.
If the applicant’s evidence is to be accepted as reliable, this warning from the member of the SODELPA was highly significant. It would put the applicant in fear he would be harmed by the military or police, detained, tortured, and killed.
If the applicant’s evidence about this warning is accepted, it is reasonable to expect he would have assessed the reliability of the information before acting on it, and leaving his home country. The applicant had a lot of time in which to assess the credibility of the person and information. According to the applicant’s oral evidence, the unidentified party member warned him in April 2017, and he left Fiji and travelled to Australia in September 2018.
It is evident the applicant assessed this information to the degree that it made him fear he would be seriously harmed by members of the military and decided to lay low. However, there is no evidence that he changed his address, or otherwise hid his whereabouts to avoid any risk of being detained by army or police personnel.
It is reasonable to expect, as a matter of common sense that the applicant would assess the credibility of the person who gave him the warning, an obvious step in assessing whether the information was reliable. This is especially the case since the applicant had been opposing [Occupation 1] contracts since 2016, the time when [Occupation 1] contracts were implemented, without experiencing any actual intervention by any member of the army or the police force, such as being warned by any member of either of those services that they would harm him, or that he risked them detaining him if he continued to oppose [Occupation 1] contracts.
The applicant did not name the relevant party official in the written material he provided to the Department or the Tribunal. At hearing when the applicant was specifically asked to name the party official, who he asserts warned him certain members of the army had targeted him, he said that he can’t recall his name. The applicant did not indicate to the Tribunal that he remembered the name but did not want to disclose it to preserve his anonymity and protect him from possible harm; or that the party official was a stranger, or he did not know his name. The applicant’s evidence is simply that he can’t recall his name.
The Tribunal finds it difficult to accept that the applicant, being the well-educated, highly experienced, and highly ranked [Occupation 1] he is, would be unable to recall the name of the person he claims gave him this information. Information that was central to his reasons for him leaving Fiji and seeking protection in Australia. The Tribunal is of the view, given the significance of this information to the applicant, and the applicant’s education and work experience, he would know the name of the informant and be able to recall it in this review, if in fact he was warned members of the military know what he is doing. Additionally, and according to his visa application form, the police and the army were after him and trying to apprehend him to prevent him from further interference with the implementation of the government’s employment contracts for [Occupation 1]s.
The applicant places reliance on the document dated 15 July 2019, said to have been signed by the Hon. [Mr C] MP, previously referred to in this decision, as evidence that supports his evidence, he was warned by a party official that he had been targeted by army personnel because of his opposition to the government’s [Occupation 1] contract policy. The Tribunal observed during the hearing the applicant referring to this document several times while answering the Tribunal’s questions.
During the hearing the Tribunal inquired of the applicant if he had written the Hon. [Mr C] MP document. In substance the applicant said he did not write the document, but he did provide the information contained in the third paragraph on the second page of the document. That paragraph states:
His move on reforms has a lot of effects on the current government as he was one of the few officers who voiced their disagreement regarding these reforms. An Army Officer in March 2017 informed the party officials that [the applicant] was under surveillance from a group of army officers because of his part in going against the government and its reforms especially on contracts.
This paragraph makes a serious allegation concerning the conduct of a group of army officers that was averse to the applicant’s wellbeing. On a straightforward reading of the document, the Hon. [Mr C] MP is lending the authority of his position to the reliability of the contents of the letter. It is apparent the document was written for the purpose of supporting the applicant’s endeavours to remain in Australia. According to the applicant’s evidence at hearing the Hon. [Mr C] MP and the applicant are personal friends and former work colleagues.
During the applicant’s evidence and in response to the Tribunal’s questions, the applicant disclosed that he provided to the Hon. [Mr C] MP the information contained in the paragraph reproduced in this decision ([83]). The Hon. [Mr C] MP did not disclose that the applicant provided this information to him.
The Hon. [Mr C] MP in neglecting to disclose that the applicant provided him with the information in the relevant paragraph, has created the impression he was independently aware of the happenings he refers to in the paragraph. This impression arises from a straightforward reading of the document, and in the opinion of the Tribunal, it is an impression that a reasonable reader would be draw from the document and it is misleading.
The failure of the Hon. [Mr C] MP to disclose in his document that the applicant was the source of the information he provided in the quoted paragraph is a matter of significant concern to the Tribunal. It leads the Tribunal to doubt the reliability of the Hon. [Mr C] MP, as an independent and accurate witness to the matters of fact stated in the relevant paragraph.
Additionally, the Tribunal doubts the reliability of the information provided by [Mr C] MP, to the extent that it states and otherwise indicates, that the applicant was given information by an unidentified person or persons in the party; that the applicant was actively targeted by members of the military in 2017 and 2018, and that he risked arbitrary detention and torture by military or police personnel if he remained in Fiji.
Considering the applicant’s oral evidence that he and the Hon. [Mr C] MP are friends and former colleagues and considering the failure of [Mr C] MP to disclose that the applicant was the source of the above quoted set of serious allegations against officers in the Fijian Army, the Tribunal apprehends that [Mr C] MP was biased in favour of the applicant at the time he wrote the July 2019 document.
In giving consideration to information provided by [Mr C] MP, in combination with the evidence as a whole, the Tribunal, does not regard [Mr C] MP as an unbiased and reliable source of information concerning the applicant’s being informed, or his being informed (that is [Mr C] MP), or that any member of the party was informed that the applicant was under surveillance by a group of army officers in March 2017, and in 2018 of the army ‘surveillance team’ having ‘collected enough information about [the applicant] and his family and they were in a position to arrest him.’[3] On balance, the Tribunal has decided to give neutral weight to this information in the MP’s document.
[3] Tribunal file, ‘To Whom It May Concern Letter with the date 15 July 2019, on letter head of the Hon. [Mr C MP] p2
Accordingly, the Tribunal does not regard the information provided by [Mr C] MP about the applicant being targeted by a group of army officers, as information that gives material support to the applicant’s evidence at hearing, and in his visa application claims, that he was informed a group of army officers had placed him under surveillance; that they knew what he was doing; and that police or military personnel were trying to apprehend him to prevent him from further interference with the government’s [Occupation 1] contract policy.
According to the applicant’s evidence at hearing after the party official warned him in April 2017 about the military knowing what he was doing, he returned to his home, and he continued [doing Occupation 1] and preforming his role of ‘head [Occupation 1]’ of the [workplace] to which he had been posted. The applicant resigned from [Employer 1] in February in 2018.
According to the applicant’s evidence at hearing his political activities slowed down and he remained silent whilst he thought about his way out, and how to avoid being detained by members of the military and tortured. The applicant decided to resign from [Employer 1] in February 2018.
According to the reasons given by the applicant in his visa application form for resigning from [Occupation 1], ‘the pressure from my senior staff was tremendous so I decided to resign on Feb 2018.’[4]
[4] Department file, protection visa application form - emphasis made by the applicant.
According to the applicant’s evidence at hearing he departed Fiji in September 2018, and he did so, and travelled to Australia to avoid being detained and tortured by the Military.
There is no evidence that army or police personnel spoke to the applicant about his opposition to [Occupation 1] contracts or attempted to detain him while he resided in Fiji. This is surprising considering the applicant says: ‘it is clearly evident that people who voice concerns about the government will be apprehended’[5] These circumstances weigh against the applicant having a political profile in Fiji that meant he was regarded by the military, police or the government as a person who may pose a risk to the implementation of the government’s [Occupation 1] contract policy.
[5] Department file, visa application form p30.
Relevantly, in the latter part of the hearing, and in response to a question the applicant said the government introduced [Occupation 1] contracts after the election in September 2018. According to his evidence the issue was well known and widely discussed in the community. The applicant accepted at hearing that the government took the issue to the electorate before the 2018 election, and that the government was re-elected. The elections were independently and authoritatively judged to as credible: see [52].
Based on this evidence, it is apparent there was widespread discussion in the community of the government’s [Occupation 1] contract policy. There is no evidence the government used the police or military to stifle this discussion. There is no country information before the Tribunal that indicated the government attempted to stifle public discussion concerning [Occupation 1] contracts. According to the applicant’s evidence the government made [Occupation 1] contracts an election issue and in 2018 the government was elected. It would seem from this electoral result that the electorate mandated the government’s policy concerning [Occupation 1] contracts. The applicant also said in evidence that the government introduced [Occupation 1] contracts after the election in 2018, and before he left Fiji in September 2018.
The evidence suggests the government treated the [Occupation 1] contract policy as a political issue to be discussed openly and freely by the community, and a policy for the electorate to vote on at the 2018 election. This course of conduct conforms with the ordinary course of government according to established democratic standards. It is a process that is inconsistent with, and weighs against accepting that it is reasonably likely members of the military were used by the government to threaten harm to the applicant, and that a group of officers in the army or police personnel would target the applicant or use their positions to prevent the applicant from speaking against [Occupation 1] contracts, a matter that was well known and discussed in the community. The applicant was a part of that community.

100. It is also relevant to consider that according to the applicant’s evidence that he attended about three meetings involving members of the SODELPA. According to the most recent DFAT country information report on Fiji, the SODELPA is the main opposition party: see 3.14.
101. The applicant accepted in evidence that the SODELPA did not see fit to oppose the implementation of [Occupation 1] contracts. This is unsurprising considering the contracts were performance-based contracts, and that the applicant’s reasons for opposing the contracts was that they interfered with personal financial arrangements the applicant and some other [Occupation 1]s had made in relation to deducting money from their salaries for certain agreed purposes. According to the applicant’s oral evidence, was concerned he would lose his properties.
102. Furthermore, a document dated 4 May 2017, signed by [Ms B] for the [Employer 1], confirms that [the applicant] was employed at that time by [Employer 1] as a Head [Occupation 1] on contract [between] June 2016 [to] June 2019 at [Workplace].
103. There is no evidence that the applicant lost any of his properties or suffered financial detriment after the performance-based contracts were initially implemented in 2016. The applicant has not given evidence, or relied on country information that satisfies the Tribunal that there was widespread opposition to [Occupation 1] contracts amongst [Occupation 1]s or in the wider community.
104. To summarise material aspects of the applicant’s evidence: he started speaking out against [Occupation 1] contracts in 2016 and continued to do so until he resigned from [Employer 1] in February 2018. Towards the end of the period 2014 – 2016 whilst the applicant held the position of Acting Senior [Job title] in [Employer 1],[6] he spoke to colleagues against employment contracts. He was told he would receive a warning letter if he continued to agitate against [Occupation 1] contracts. The applicant was never issued with a warning letter. After he left the position at the head office of [Employer 1], and he returned to [Occupation 1], first in a [workplace] and then as Head [Occupation] of [Workplace]. He spoke to parents, some of whom were police and members of the military, voicing his opposition to [Occupation 1] contracts.
[6] Department file, applicant’s Curriculum Vitae.
105. There is no evidence that any parents suggested or warned the applicant to stop opposing [Occupation 1] contracts. There is no evidence that establishes the advice to the applicant about the prospect of being issued with a warning for speaking against [Occupation 1] contracts, may have been connected to police or military personnel, or was outside the disciplinary code of conduct applicable to all employees of [Employer 1]. According to the applicant’s evidence, the rules applicable to the conduct of all [Employer 1] employees provided for warning letters to be issued to all [Employer 1].
106. Furthermore, between 2016 and February 2018, according to the applicant’s oral evidence, he attended about two meetings of SODELPA party officials. He sought to persuade them to oppose [Occupation 1] contracts. He was told they would work on it and try to support him. Opposition to [Occupation 1] contracts was never adopted as a party policy. The applicant attended a small number of party branch meetings: about three as the Tribunal understands the applicant’s evidence. He spoke from the floor of the meetings when he voiced his opposition to the contracts.
107. The applicant’s evidence about his public opposition to [Occupation 1] contracts does not establish he attracted supporters to his cause and led people in a campaign against [Occupation 1] contracts, held or participated in public rallies or was an influential public voice in any social media campaign against [Occupation 1] contracts.
108. The applicant said in his visa application form that the had not suffered harm in Fiji.
109. Nevertheless, he made the following claims:
The country belong to the current government.They can easily
get you out from where you are hiding.They have the resources
and the manpower so you cannot hide from them.
As happened before where people are arrested from homes and
anywhere and brutally tortured. Some were severely injured and
others died.
It is clearly evident that people who voice concerns about the
government will be apprehended. As happened in the past and
is still happening hence if i go back to ill be apprehended and
brutally assaulted because I am voicing my opinion.
The same government that has a history of brutality ending
in death is still here running the government for the next four years.[7]
[7] Applicant’s emphasis.
110. There is no evidence the applicant left his family home or otherwise went into hiding in Fiji to avoid arrest, torture and perhaps death and the risks of persecution the applicant claims he faced in Fiji, and that he would face if he is removed to Fiji.
111. There is no evidence of military, and/or police attempting to detain the applicant, despite the applicant asserting they have the resources to find persons who oppose the government anywhere in Fiji; and that state actors have a history of persecuting and sometimes killing individuals who oppose the government.
Findings
112. Considering the evidence as a whole, the evidence is insufficient to establish to the satisfaction of the Tribunal that the government, or any army officers or members of the police force acting on the instructions of members of the government or of their own initiative, regarded the applicant’s anti-[Occupation 1] contract activities, or the applicant himself, as posing a threat to the implementation of the government’s [Occupation 1] contract policy, to social stability, to the government’s electoral prospects, or to the public perception of the legitimacy of the government.

113. Furthermore, the evidence is insufficient to establish to the satisfaction of the Tribunal, that state or non-state actors in Fiji regarded the applicant as a person likely to act outside the scope of mainstream, legitimate, and accepted community discourse and disagreement in respect to government policies and [Occupation 1] contracts.
114. Considering the Tribunal’s significant doubt about the veracity and accuracy of the applicant as a witness [41], the whole of the evidence and country information before the Tribunal, the evidence is insufficient to establish to the satisfaction of the Tribunal that the applicant was ever adversely targeted by any members of the government, military or police personnel for any reason whatsoever.
115. Furthermore, having considered the applicant’s claims individually and cumulatively, and the evidence as a whole and in combination with the cited country information, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his actual or imputed political opinion, or for any other reason specified in the provisions of s 5J(1)(a) of the Act, or for any other reason, if he is removed to Fiji now or in the reasonably foreseeable future.
116. Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out is s 5H of the Act.
Complimentary Protection
117. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
118. A person will meet that criterion if there are ‘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’.
119. Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.

120. The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 201 FCR 505.
121. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
122. In applying the decision in MIAC v SZQRB (2013) 201 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Fiji now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A).
123. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.
124. For the reasons given above the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
[The second named applicant]
125. The Tribunal is satisfied [the applicant], and [the second named applicant], currently live together in a well-established and long-standing marriage. Therefore, the Tribunal finds [the second applicant] is a member of the family unit of [the applicant], as defined in Regulation 1.12 of the Migration Regulations 1994, and therefore is also a member of the same family unit as defined in s 5(1) of the Act.
126. The Tribunal is not satisfied the first named applicant meets the legislative requirements for the grant of a protection visa. Accordingly, the second named applicant, being a member of the family unit of the first named applicant, does not satisfy s 36(2)(b) or section 36(2)(c) of the Act, because the second named applicant is not a member of the family unit of a non-citizen who holds a protection visa of the same class applied for in this application, and who engages Australia’s protection obligations under s 36(2)(a) or section 36(2)(aa) of the Act. Therefore, the second named applicant is ineligible for a protection visa.
127. There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
decision
128. The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Haag

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.
…

[2022] AATA 4194

31 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice