1936092 (Refugee)
[2025] ARTA 737
•28 February 2025
1936092 (REFUGEE) [2025] ARTA 737 (28 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1936092
Tribunal:Damien Power
Date:28 February 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 28 February 2025 at 11:57am
CATCHWORDS
REFUGEE – protection visa – Fiji – unfair dismissal, employment blacklisting, financial difficulties, emotional trauma and fear of retaliation – government corruption and collusion – joint hearing with wife’s application relying on same grounds – children’s education – country information – recent change of government and economic conditions – dismissal and review process, work history and employment prospects – no evidence of mental health or treatment provided – late claims of workplace senior mismanagement – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 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 national of Fiji, applied for the visa on 13 November 2018. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 20 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s wife.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
BACKGROUND
The applicant is a male aged [Age] years of age from Fiji. He is married with [children]. His family currently resides with him in Australia.
The applicant speaks, reads and writes English and Fijian.
Evidence before the Department
Migration History
The applicant last arrived in Australia [in] September 2018. The applicant had previously travelled to Australia numerous times between 2013 and his last arrival here in 2018.
On 13 November 2018, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 20 December 2019, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The claims contained in the applicant’s protection visa application are set out below:
· The applicant was unfairly dismissed by his employer, the [Employer 1].
· The applicant was unable to find work as most of the board members in most government ministries and corporate bodies are the same throughout Fiji. The applicant’s name has been marked within Fiji.
· The applicant had financial difficulties as a result of these events. Even though they were not physically harmed, his family were traumatised.
· The applicant approached his former CEO, [Mr B]. On his advice, the applicant sought mediation over his dismissal. The applicant attended mediation, and the matter is now before the High Court.
· The applicant’s family moved back to their village, as they were emotionally disturbed by the events surrounding his termination.
· The applicant believes he will be mistreated by the current regime if he returns to Fiji. Top decision makers in Fiji are dictatorial and corrupt. It would be hard to apply for jobs as most boards of directors are the same throughout the utility and government sectors. Relocating within Fiji would not help.
· The applicant felt it would be better to move to Australia where his potential could be better utilised.
Department interview
The applicant was not offered an interview with the Department.
Supporting evidence
The applicant provided a range of detailed correspondence relating to his dismissal and the process followed by his [employer]. He also provided a news article from the ABC and a printout of a Fiji Ministry of Health and Medical Services webpage, both relating to mental health. He also provided a support letter from the Social Democratic Liberal Party (SODELPA) of Fiji.
The applicant also provided evidence of his many professional qualifications, and a range of references from his employers.
The delegate’s decision
While noting perceptions of corruption in Fiji, the delegate did not accept that the applicant would be at risk of serious or significant harm in Fiji, pointing to the improvement in the political situation and the applicant’s lack of a significant profile with authorities. The delegate found that indigenous Fijians are not discriminated against in Fiji and benefit from some positive discrimination. The delegate did not accept that the applicant would be denied employment or be unable to subsist in Fiji, pointing to the relative soundness of the Fijian economy and legislation granting protections to workers. The delegate also pointed to the applicant’s range of skills and qualifications. The delegate also found that health services in Fiji were largely free and generally effective, and that there were services to assist Fijians with mental health concerns, if necessary.
Evidence before the Tribunal
Application for review
On 21 December 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
Additional submissions or evidence
The applicant provided a letter from [Mrs C] (dated 15 January 2025) that outlines events pertinent to the applicant’s dismissal from the [Employer 1]
The applicant also provided the Tribunal with a range of documents relating to his employment, as well as a number of character references and support letters and other miscellaneous documents.
The hearing
The applicant attended a hearing on 20 February 2025.
The applicant provided further detail about his experiences in Fiji and Australia, and about his claims for protection at the hearing. The applicant also gave evidence about his background, work history and other matters. The Tribunal also heard evidence from the applicant’s wife.
The evidence of the applicant and of the applicant’s wife, where relevant to the consideration of his claims, is discussed in detail under Reasons and Findings.
The applicant did not make any post-hearing submissions.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
The applicant provided a copy of the bio-data pages of his Fijian passport, as well as his previous passport (and passports for his family members). The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of his claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that his receiving country for the purposes of assessing his claims for protection is Fiji. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than Fiji.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant attended the hearing with his wife, [Ms A]. Both the applicant and his wife have lodged reviews of their respective protection visa refusals and asked to have their matters heard together.
As the applicant’s wife’s claims are directly related to her husband’s claims, the Tribunal heard from both parties at the hearing, and concerns raised with their evidence was put to them jointly.
The applicant was asked about his employment here in Australia. He said that he was currently working as [an occupation 1] for a company called [Employer 2]. He had also worked at various times for the [Employer 3], doing [job tasks] work, and at a [workplace 1].
In Fiji, the applicant had worked for the [Employer 1] for approximately six years, between 2012 and 2018. He began in an administrative role there and worked his way up to a managerial position. Prior to that, he had worked for the [Employer 4] as [an occupation 2], as [an occupation 3], and as an [occupation 4].
The applicant’s parents are both still alive and residing in Fiji, although his mother is not well. The applicant’s [sister] is [an occupation 3] at a government [workplace 2]. His [brother] works for the [Employer 5]. The applicant and his wife have [children] who are all residing in Australia with them.
The applicant was asked why he feared returning to Fiji. The applicant said that he had been terminated from his position at the [Employer 1]. The people who had terminated him were still in power and he feared retaliation. He and his family had been harmed psychologically.
The applicant was asked to talk more about his dismissal. The applicant said that, prior to his own dismissal, the Chief Operating Officer (COO) of the [Employer 1] had also been terminated. The applicant had reported directly to the COO, a man called [Mr B]. The applicant said that there had been chaos in his department following the COO’s termination.
The applicant said that he had invited the former COO to talk at a workshop run by the [Employer 1] in May 2018. The applicant said that there was no memorandum indicating that the former COO could not be invited to speak. He had asked the COO to talk at the workshop and clear up some doubts among his staff members. He said that [Mr B] had only spoken for about ten minutes. However, this event had led to the applicant’s dismissal.
I asked the applicant whether he had informed the new head of the [Employer 1] at the time about his plans to invite [Mr B] to speak at the workshop. The applicant said he had raised the matter verbally. I asked the applicant whether he had put the request to invite [Mr B] in writing. The applicant said that he could not recall. However, he said that he had told the new head of the authority at the time, [Mr D], about his plans to invite [Mr B] to the workshop.
The applicant said that both [Mr D] and [Mr B] had attended the workshop. I asked the applicant what [Mr D] had said after [Mr B] had finished speaking. The applicant said that [Mr D] had not said anything at the time and had left the workshop.
I asked the applicant when he had first learned that there were concerns regarding [Mr B]’s attendance at the workshop. The applicant said that he had learned about the issue the very next day, which was a Friday. An investigation was conducted into the matter. The applicant was suspended with pay for approximately three or four months while the matter was resolved. The applicant maintained that he had done nothing wrong, and that there was no memorandum or other written direction stating he could not invite [Mr B] to the workshop. Eventually, on 3 August 2018, he received a letter terminating his appointment.
The [Employer 1] said that the applicant should not have invited the former COO to attend the workshop, under all the circumstances. They also said that the applicant had not expressed any remorse for his actions. I put it to the applicant that this appeared to be true - from what he had said to me, he was still of the opinion he had done nothing wrong. The applicant confirmed that this was the case.
The applicant said that he had not acted corruptly, and that the termination was political. He said that he called [Mr B] and asked his advice. [Mr B] advised him to enter into a mediation process. Both he and [Mr B] had attended a mediation before a panel at the Ministry of Labour. The applicant again contended that there he had been no memorandum or written direction that prevented or forbade him from inviting [Mr B] to the workshop. The applicant was asked about the outcome of the mediation. The applicant did not give a lot of detail about the panel’s decision but indicated that they were either unwilling or unable to overturn his dismissal. He said that they had not provided a written record of their decision. To the best of his recollection, the mediation had been concluded at the end of August.
The applicant claimed that he had applied for a number of jobs before leaving Fiji, only to find that he had been blacklisted. The applicant was asked how he knew this. The applicant said that people within the various agencies he had applied to had told him that he was the most qualified candidate but that his name had not been put forward.
The applicant had already travelled to Australia a number of times. After discussing recent events with his family, he decided to leave Fiji and travel to Australia alone.
[Ms A] was asked if anything had happened in the period of approximately eleven months that she had remained behind in Fiji with her children after her husband had departed. She said that nothing had happened.
CONSIDERATION OF CLAIMS
The applicant has claimed in his response to the [Employer 1] that he was unaware of any sensitivity or tension regarding [Mr B]’s termination. I put it to applicant that [Mr B]’s termination was public knowledge and that he had indicated publicly (to the [News source], for example[1]) his displeasure with his termination. I said that it may seem reasonable for senior managers or the board to object to applicant inviting to a work event a former COO who had left the organisation in contentious circumstances, and that this might reasonably be viewed as inappropriate or even unprofessional. The applicant responded that he thought the former COO could clear up some matters and explain things to his former colleagues.
[1] [Reference] - accessed on 19 Feb 2025
The applicant also claimed that he was denied natural justice. I put it to the applicant that his dismissal occurred through an extended process and that he had been given the right to respond. During the process he had been suspended with pay, and later sought and was granted mediation. I said that I may consider on the face of it that, even if another person may have made a different decision on the same facts, it was not a politically motivated exercise and that he had been given the benefit of due process and a right to respond. The applicant then raised the possibility that he had been targeted because he had publicly disagreed with other senior managers and accused them of wasting public funds. He further claimed that he may have been targeted because he had recommended against awarding a tender to a provider linked with one (or more) of the board members. These issues around his adverse feedback to senior managers and the tender / procurement issue that had not previously been raised in his statutory declaration to the Department.
I put it to the applicant that the fact that he was raising these matters now, when they had not been put forward previously to the Department or earlier to the Tribunal, may cause me to doubt about the credibility of those matters. The applicant said he had been emotional when he first arrived and had not had any advice on how to lodge his application. I do not accept this explanation. The applicant was a senior manager and is educated at a tertiary level. He provided a detailed submission to the department and many supporting documents, including documents relating to his dismissal. In his statement to the Department (dated 12 November 2018), he stated that he believed his dismissal was political because his father had been a SODELPA candidate, and [Mr B] had also stood for SODELPA. He did not raise issues with any tender process in that statement or describe denouncing his fellow managers for their wasteful practices.
I do not accept that the applicant would not have raised matters as central to his claims as the disputed tender process earlier, if these had actually occurred and he genuinely felt they had influenced the decision to terminate him.
The applicants put forward a letter from [Mrs C], the applicant’s sister‑in‑law, who also worked at the [Employer 1]. She details her experience of being questioned by management about her interactions with the applicant during his termination period. I accept this event occurred. However, although the sister‑in‑law was spoken to by her employers, she was not dismissed from her role at the [Employer 1] and (according to the applicants’ evidence) she continued to work there until a couple of months ago.
I note also that the applicant was himself employed by the [Employer 1] for six years, prior to his dismissal. He received several promotions during that time. There is no evidence that he was targeted or sanctioned prior to the incident with [Mr B].
The applicant’s dismissal occurred through an extended process, where he was given a right to respond and during which he was suspended with pay, As noted above, he subsequently sought and was granted mediation. The applicant did not dispute that he had invited the former COO to a [Employer 1] function and conceded that he was not remorseful about doing so, as noted in the [Employer 1]’s response.
I do not accept, given the public reporting about [Mr B]’s departure from the [Employer 1][2], that the applicant could reasonably have been unaware of the tensions surrounding [Mr B]’s termination. I also consider that it was not entirely unreasonable, in all the circumstances, for the [Employer 1] management to have been displeased by [Mr B]’s appearance at the workshop, given the contentious circumstances of his recent termination.
[2] [References] - both accessed on 19 Feb 2025
In his response to the [Employer 1], the applicant made mention of being a simple “Itaukei” worker, and that he and his fellow “Itaukei workers in the [Employer 1]” were being “singled out”. The applicant may have been inferring that he was being targeted on ethnic grounds, although this is not clear. In any event, the applicant was taken through his evidence and detail but did not suggest that he had been targeted as an ethnic Fijian.
The delegate in their decision noted that Itaukei in Fiji were generally the beneficiaries of positive discrimination, government services were delivered on a non-discriminatory basis, and that there was no evidence of discrimination against Itaukei in Fiji. The applicant has not disputed this country information or sought to rebut it. DFAT currently notes that Itaukei comprise a majority of the Fijian population and a majority of the security forces and public service[3].
[3] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
The applicant also provided varying reasons for his dismissal at his hearing. He raised at hearing the possibility that he had been targeted because he had publicly disagreed with other senior managers and accused them of wasting public funds. He then claimed that he may have been targeted because he had recommended against awarding a tender to a provider linked with one (or more) of the board members. As noted above, these issues had not been raised in his 12 November 2018 statement to the Department.
The applicant was asked about the basis for his dismissal in detail at his hearing and did not mention or allude to his ethnicity. When he did speculate on the basis for his dismissal, he put forward specific considerations that did not include reference to his Itaukei heritage. I do not accept that the applicant faced any discrimination on the grounds of his ethnicity, nor did he seek to put that claim forward at his hearing.
I accept that the applicant was dismissed from his job at the [Employer 1] and that his sister‑in‑law was later questioned by her employers regarding the applicant. The approach of the applicant’s employers was arguably heavy‑handed, and his dismissal was a significant penalty for his perceived lapse in judgement. However, while another person may have made a different decision on the same set of facts, I am not satisfied on the information before me that the applicant’s termination was political.
In any event, the applicant was advised at hearing that the assessment I needed to conduct was a forward-looking one. I had to determine whether he would still face serious or significant harm now on return to Fiji.
I put information to the applicant that the government in Fiji had now changed. Former Prime Minister Bainimarama had lost power and had even spent time in jail[4]. Many of his former associates had also been removed from their posts[5].
[4] Convicted former Fiji prime minister Frank Bainimarama released from prison early | RNZ News (last accessed on 19 February 2025)
[5] “Pacific news in brief for 5 December”, Radio New Zealand, 5 December 2023 ( “Suspended FCS Commissioner resigns”, FBC News, Sainiani Boila, 3 March 2023 (>
The applicant had provided a letter of support from SODELPA. The applicant said that he was not a member of SODELPA, but his father had run as a SODELPA candidate in the 2014 election. I was able to locate reporting that confirmed someone of the name [Mr E] had been a candidate for SODELPA and I accept that the applicant’s father was involved in SODELPA in Fiji[6].
[6] [Reference]
However, I put it to the applicant that SODELPA was now part of the governing coalition[7]. I said that the Department of Foreign Affairs and Trade (DFAT) was not aware of any reports of people being targeted by former Prime Minister (PM) Bainimarama, his supporters or the military since the change in government, and legal action against other former critics had been dismissed or dropped[8]. I said the current Rabuka government had, in fact, facilitated the return of some former Bainimarama critics[9].
[7] 'Common Claims Fiji December 2023 - Word', Country of Origin Information Services Section (COISS), 11 December 2023, 20231211152543
[8] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036
[9] Ibid
I said given that SODELPA was part of the governing coalition and even quite high-profile critics of the former government had not been targeted, I asked the applicant to articulate the exact nature of his fear of harm on return to Fiji. The applicant said that senior personnel (from his time in Fiji) were still at the [Employer 1]. The applicant said that Bainimarama’s Fiji First party had disbanded but members of that party were now part of the government. The applicant said that he had not submitted any information about this but had seen it in the Fiji Times.
I said that [Mr B] was still in Fiji and had not been harmed. I said that [Mr B] had, in fact, served for a time as [a Public figure]’s [staff member][10]. He had also moved on other roles. I asked the applicant why he would be targeted when his former boss had not been harmed and had worked the government in various roles. The applicant said that [Mr B] was at a senior level. The applicant then talked about his family still developing its skills and made a vague reference to him being seen as a threat to ‘them’. The applicant’s answer was quite unclear so he was asked directly who would harm him or why he would be seen as a threat, given he had left the [Employer 1], he had been out of Fiji for more than six years, and his former boss had not been harmed. The applicant then mentioned psychological harm to himself and his children.
[10] [Reference] (last accessed on 19 February 2025)
I said to the applicant that he was highly qualified and appeared to me to be a resilient and adaptable individual. I put it to him that even if things had not changed at the [Employer 1], he could work elsewhere and that a person with his skills would be in some demand in Fiji. The applicant did not address this question directly. He said that all of his children were here and had adapted to the Australian standards. He said they were successful in school and were participating well. He said going back to Fiji would be difficult for them. He again mentioned that they would be triggered psychologically by returning to Fiji, especially his oldest [children]. The applicant’s two oldest [children] were [Age] and almost [Age] (which would mean that they were around [Age] and [Age] years of age respectively when they left Fiji).
I said that I understood that it was their strong preference for their family to remain in Australia, and that their circumstances may change on return to Fiji. I also understood it would be a big change to go back to Fiji. However, the visa application I was assessing was a protection visa. I had to look at whether they would face serious or significant harm on return to Fiji.
I said that the head of the [Employer 1] in Fiji had actually changed a number of times since the applicant’s departure from Fiji[11]. The current head of the [Employer 1] had recently elected not to extend his contract and a search was on for a new person to lead the Authority[12]. The government in Fiji had changed, and this usually brought about some change in senior personnel at government organisations. On that basis, I might have difficulty accepting that the personnel at the [Employer 1] had remained unchanged. However, I again put to the applicant that, regardless, it seemed as though he could work elsewhere in Fiji. The applicant again contended that the [Employer 1] senior management was essentially unchanged and that this was also true of other government organisations. He referred to one individual (not named) who was at the [Employer 1] and now worked for the [Employer 6]. Whenever he saw this person’s name, he had the old feelings.
[11] [Reference] (refer bottom pg 52 - last accessed on 19 February 2025); [Reference] (last accessed on 19 February 2025)
[12] [Reference]
I acknowledged that there had been difficult times in Fiji under the former government and did not wish to discount that. However, Frank Bainimarama had now actually spent a period in jail. Other leading figures, such as (former Police Commissioner Sitiveni) Qihilo and (then Commissioner of the Fijian Corrections Service, Francis) Kean had also lost their jobs[13]. Government departments had changed[14], [Mr B] himself was working for the government, and former critics of the Bainimarama government had returned to Fiji. I said when I considered all of that, I may have difficulty accepting that he would be unable to find work even in the government sector. I said that he could also seek employment in the private sector. I said I may find he could return to Fiji and find some sort of work. The applicant said the middle managers selecting people for interview had not changed and they were the ones who made the decisions.
[13] “Pacific news in brief for 5 December”, Radio New Zealand, 5 December 2023 ( “Suspended FCS Commissioner resigns”, FBC News, Sainiani Boila, 3 March 2023 (both last accessed on 19 February 2025) ( (last accessed on 19 February 2025)
[14] "A New Era in Fijian Politics", Patricia O'Brien, Center For Strategic and International Studies, 7 February 2023 (last accessed on 19 February 2025)
I asked the applicant again about the possibility of working in the private sector. The applicant said that he had never worked in the private sector in Fiji. I said that he had come to Australia and worked a number of different jobs. The applicant’s wife, [Ms A], was now working as [an occupation 5] and appeared to be excelling in that role. His brother and sister were employed by the government, as a government [occupation 3] and by the [Employer 5], respectively. I said that, given all of this, I was having difficulty accepting that the applicant would be unable to find work in Fiji, either in the public sector or in the private sector if necessary. The applicant again contended that it would depend on those who were selecting people for interview.
I said that the Fijian economy had proved remarkably resilient since the impact of COVID. The Fijian economy expanded by 20% in 2022, and by another 8% in 2023[15]. Westpac had estimated that Fiji’s economy was expected to grow by another 3.4% in the coming year[16]. They had also stated the following: “Formal sector wages have increased as businesses have gone the extra mile to retain existing workers”[17]. Fiji’s unemployment rate was a relatively healthy 4.3%.
[15] Fiji country brief | Australian Government Department of Foreign Affairs and Trade (last accessed on 19 February 2025)
[16] Westpac Wave - Quarterly update on Fiji economy | Westpac IQ (last accessed on 19 February 2025)
[17] Ibid
I said that when I looked at all those factors – a growing economy, increases in formal sector wages, and a relatively low unemployment rate – and contrasted them with his qualifications and work history, I found it difficult to believe he would not be somewhat sought after by employers in Fiji. The applicant said that the Fijian government should have called him. I put it to him again that he could find some sort of work. The applicant said that there were a lot of graduates in Fiji who could do better work than him. People there had different ideas on work. He then referred again to issues at the [Employer 1], and that there were still old ways of thinking. He said he would be better off putting his skills to use in Australia.
I put it to him that older workers still participated, formally or informally, in the economy of Fiji in reasonably significant numbers. I said that I understood what he said about graduates but that he had a lot of experience in quite senior roles which would appear to equip him well to compete in the job market, even against graduates. I said I might not accept that he would be unable to find work due to competition from graduates. The applicant said he was used to older ways, and things were now technologically driven. He said he had been away from Fiji.
I said he had a track record of employment here and had learned to do different things. [Ms A] had trained in a new field and gained promotion. I said it appeared as though they would be both well-placed to go back and find some sort of work. [Ms A] responded and said that the issue was a family one. She was employed at [Employer 6], but they had decided they should all be together in Australia, and she had come here with their children. She said it would be very difficult to return because her children had put down roots here and engaged with the Australian education system. Their children had said they wanted to stay here. It would be hard for them as parents to go back.
I said I understood that it would be hard to go back but that people do move their families for many different reasons. Their children would have the benefit of some education here, the support of two parents who had grown up in Fiji, and the support of their extended family in Fiji. I said it would be a big move to return to Fiji but I might find, despite the difficulties, that it would be possible for them to return. The applicant said that when he came here, he had waited for the 2018 election result. When Bainimarama was re-elected, he went straight away and lodged for protection. If the government had changed then, he would have gone back. But the government had not changed, so he had sent for his family. They were now settled here. For his children to adapt to the Fijian education system would he hard. He had worked as [an occupation 4] in Fiji, and it did not compare to the Australian scholastic system.
The applicant was asked about the portion of the SODELPA letter that claimed he faced severe punishment and even being murdered on return to Fiji. The applicant responded that the letter had been written a long time ago and he did not have such fears on return to Fiji. The applicant was asked to confirm that he did not fear severe punishment or death on return to Fiji, and he confirmed that was the case.
I have considered the applicant’s evidence carefully.
I accept that the applicant lost his managerial position at the [Employer 1]. I also accept that this would have had a significant impact on the applicant at the time.
However, as set out above, I am not satisfied that the dismissal was politically motivated. There were reasonable grounds for senior managers to be unhappy with the applicant’s actions in inviting the recently dismissed COO of the [Employer 1] back to a work function, particularly given that the dismissal was contentious. The applicant was given the benefit of an extended review process during which he was suspended with pay and given the right of reply. Although his sister‑in‑law was spoken to by managers at the [Employer 1] after the applicant’s termination, she continued to work at the [Employer 1] for many years. During his time at the [Employer 1] (including a period of some years after Mr Bainimarama won his first election in 2014[18]), the applicant rose steadily through the organisation to become a senior manager.
[18] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
In any event, the government of Fiji has changed. Former PM Bainimarama, and some of his most senior officials have lost their jobs or even spent time in jail. Former critics of the previous Bainimarama government have returned to Fiji, and the applicant’s former boss at the [Employer 1] served as private secretary to the current Fijian PM. The applicant’s wife and children remained in Fiji for almost a year after his departure without incident. The applicant’s siblings are both employed in public sector roles. In all the circumstances, I do not accept as plausible that the applicant would be targeted on return to Fiji some six years after he left.
I do not accept, for the reasons set out above, that the applicant’s ethnicity played any role in his dismissal. As noted above, the delegate noted in their decision that Itaukei in Fiji were generally the beneficiaries of positive discrimination, government services were delivered on a non-discriminatory basis, and that there was no evidence of discrimination against Itaukei in Fiji. DFAT currently notes that Itaukei comprise a majority of the Fijian population and a majority of the security forces and public service[19]. The applicant himself was taken through his evidence in detail and did not raise his ethnicity as an issue in his dismissal or as a factor in his claimed fear of returning to Fiji.
[19] Ibid
I accept that the applicant’s children may have a different level of education in Fiji. However, Fiji has free public schooling, and sources have told DFAT that teacher quality is high[20]. Tertiary and vocational education (as evidenced by the father’s accomplishments) are also available in Fiji[21]. Although I acknowledge the applicant’s wish that their children remain in school here, they would be able to continue their schooling in Fiji. The applicant(s) did not contend that their children would be denied such education as exists in Fiji for any reason.
[20] Ibid
[21] Ibid
As set out above, the economic and labour market conditions in Fiji are relatively sound. The applicant has a breadth of employment experience and many qualifications. It was put to the applicant that there had been considerable changes after Rabuka took over as PM. The Center for Strategic and International Studies (CSIS) noted that in February 2023 that Rabuka’s new government had “exercised its prerogative to overturn appointments made by the previous government to diplomatic missions, government agencies, and institutions”. Information was also put to the applicant concerning changes to the [Employer 1] itself. Country information cited above indicates former [Employer 1] COO [Mr D] and much of the [Employer 1] Board have resigned. I do not accept as plausible that, noting the considerable political changes in Fiji since his departure, that the applicant would face ‘blacklisting’ from government positions. In any case, the applicant would not be limited to work in the government sector given his qualifications and the breadth of his work experience.
The applicant contended at one point that he would have difficulty competing with recent graduates in the labour market in Fiji. Country information indicates that many older Fijians can and do work past the official retirement age of 55, either by working for private companies, being self-employed or working in the informal sectors of the economy[22]. A paper published by the Fiji Institute of Applied Studies indicates that the total number of Fijians aged over 55 still in the workforce had risen from approximately 60,000 in 1996 to well over 90,000 in 2007[23]. Although the figures are somewhat dated, they also indicate that the labour force participation in Fiji even for workers aged 60 – 69 years of age was well over 30%[24].
[22] ‘Working Elderly in Fiji: Choice or Necessity?’, Kesaia Seniloli and Rupeni Tawake, Fijian Studies Vol. 14 No. 2, Fiji Institute of Applied Studies
[23] Ibid
[24] Ibid
The applicant has worked continuously in a variety of roles here in Australia. He came to Australia and found a variety of work, and now works for a [work sector 1] firm. His references indicate that he has been successful in making that transition. He also has an extensive background in [work sector 2] and management roles. The current government of Fiji has spoken of the need to strengthen technical skills in a number of sectors and specifically noted vocational education as one of the key areas requiring support[25]. In addition, the Rabuka government has committed to raising the minimum retirement age from 55 to 60 because of chronic shortages of teachers, doctors, and nurses[26]. A circular from Fijian Civil Service dated 23 January 2023 confirms that the amended retirement age policy went into effect on 1 January 2023[27]. The applicant has not only worked in the [work sector 2] but has also performed a variety of other roles (some quite senior) here and in Fiji. His wife has also recently reskilled as [an occupation 5] and has recently been promoted to team leader.
[25] “Availability of technical skills remain a challenge: Rabuka”, Kreetika Kumar, FBC News, 29 March 2023 (last accessed on 19 February 2025)
[26] “Retirement age policy to be reviewed”, Ritika Pratap, FBC News, 18 January 2023 (last accessed on 19 February 2025)
[27] ‘Retirement Age and Permanent Contracts’, Circular 02/2023, 23 January 2023 (last accessed on 19 February 2025 at
Given the above, I consider that the applicant is well-placed to find work on return to Fiji, notwithstanding his age. He has skills that are clearly in demand in Fiji, a strong employment record, and is currently well below the amended retirement age even for formal, government sector workers. I further find that he would not be discriminated against in finding employment for any of the reasons set out in s5J(1)(a).
The applicant provided an article from the ABC dating back to 2013, titled “Fiji to open region's first mental health facility”. The applicant also provided a printout of a page from the Ministry of Health & Medical Services which deals with mental health wellness. The application did not provide any explanation or context for these articles.
The applicant maintains that he was traumatised by events in Fiji surrounding his dismissal and that this trauma would be triggered on return to Fiji. However, the applicant quickly made plans to leave Fiji after his dismissal in 2018 and has worked steadily in Australia since arriving here. He did not contend that he has been formally diagnosed with any mental health issue or provide any evidence that he has ever consulted a mental health professional. He has not added any information regarding his own mental health, or regarding mental health issues generally, since lodging the ABC news article and the Ministry of Health webpage back in 2019 with his original application.
I accept that losing his managerial position in Fiji in what appear to have been somewhat acrimonious circumstances was unpleasant for the applicant and would have been stressful at the time. However, the applicant quickly made positive plans in response to the loss of his job by travelling to Australia and finding alternative employment, has worked steadily here since arriving, has not sought to provide any updated information or documentation regarding mental health issues, and has not provided any evidence that he ever consulted or needed to consult a mental health professional. The character references provided by the applicant appear to indicate someone who is performing well at work and who is engaged with his local community. On the information before me, I am not satisfied that the applicant is traumatised or suffers from mental health issues.
In their decision, the delegate noted information showing that Fiji has ‘largely free and generally effective’ healthcare, and that mental health assistance is available in Fiji. While noting ongoing resourcing constraints, DFAT has reported that healthcare is generally available to those that need it and that specialist health services are available[28]. Fiji’s geography continues to pose challenges in delivering healthcare, and stigma around mental health continues to be an issue in Fiji[29]. However, Fiji has undertaken steps to address the issues of mental health in Fiji. These include a variety of outreach programs, art therapy, and training programs[30]. Fiji has also received support from organisations such the International Organisation for Migration (IOM), the International Red Cross, and the Commonwealth Foundation by way of training, technical support, and assistance in developing mental health treatment plans[31]. In Fiji, persons with mental health issues are fully insured for treatment services and medication[32]. DFAT also notes the growth of private counselling services to supplement government mental health outpatient clinics[33].
[28] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
[29] 'Visit to Fiji. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras (A/HRC/47/28/Add.1)', Dainius Pūras, United Nations General Assembly, 12 April 2021, 20210811100914
[30] 'MENTAL HEALTH IN FIJI', Borgen Project, The, 30 March 2023, 20230621103639
[31] Ibid
[32] Ibid
[33] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336
Although I do not accept that the applicant has ongoing trauma associated with events in Fiji, I am nonetheless satisfied that he could receive adequate assistance with his mental health if issues arose on return to Fiji.
I am not satisfied that the applicant would be targeted on return to Fiji for any of the reasons claimed or discriminated against in finding employment. I do not accept that he would be unable to find work or support his family. I am not satisfied that the applicant would face harm for any of the reasons claimed.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
As set out above, I do not accept that the applicant would face serious harm in Fiji for any of the reasons claimed. I rely on the same reasoning in finding that there is not a real risk he would face significant harm for those (or any other) reasons.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 20 February 2025
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.
…
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