1936633 (Refugee)

1936633 (Refugee) [2023] AATA 2711 (5 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1936633
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Vlahos
DATE:5 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 5^th June 2023 at 9.11AM.
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian ethnicity – iTaukei – work-related demands from the Fiji military – no incidents of past harm – political opinion – adverse opinion concerning the 2006 coup – not politically active – mental health care – implicated in fraud case – immigration watchlist – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
and Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Another (1994) 34 ALD 347
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 12 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 citizen of Fiji, applied for the visa on 30 August 2019. The delegate refused to grant the visa on the basis that the application did not satisfy sub-section 36(2) of the Act.
The applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments. The Tribunal no other written or oral evidence from other parties.
The applicant was not represented at the hearing either by a registered migration agent or lawyer.
No interpreter was requested for these proceedings.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of origin and nationality
Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal at the hearing[1] and the absence of any evidence to the contrary, the Tribunal accepts and finds that the applicant is a national (citizen) of the Republic of Fiji and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on this basis, the Tribunal accepts and finds that the applicant’s identity is as is claimed.
Third Country protection considered
[1]see, Department of Home Affairs File no. [number] and AAT File document: Applicant’s Republic of Fiji Passport [number].
From evidence before the Tribunal, the applicant does not have the right to enter or to reside in a country other than his country-of-origin Fiji. Therefore, the Tribunal finds that s. 36(3) of the Act does not apply to the applicant’s circumstances.
Department’s file accessed by the Tribunal
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard and has considered the information referred to in delegate’s decision record and all information on file.
Delegate’s decision provided to the Tribunal
The applicant provided the Tribunal with a copy of the delegate’s decision now the subject of review by the Tribunal.
Background of the applicant: his migration and visa history
The applicant arrived in Australia on a Tourist visa [in] September 2019 as the holder of validly issued UD-601 Electronic Travel Authority visa (ETA). On 30 August 2019 the applicant applied for a XA-866 Protection visa which the Department refused to grant but granted the associated Bridging visa.
EVIDENCE AT THE HEARING
Applicant: Personal background
The applicant was born on [date] in [City 1], Fiji. He is an indigenous Fijian (iTaukei) ethnicity. The applicant is married but his spouse is living in Fiji but has no children. While in Fiji, the applicant was employed as a [Position 1] for [Employer 1] from 2011 to 2013. From 2013 to June 2019, he was employed as a [Position 2] for the [Employer 1] contractor [Employer 2]. His responsibilities made him responsible for [worksites] in [City 2] and [Village 1] in [Fiji].
The Applicant’s claims for Protection
The applicant’s claims for Protection and supporting evidence are contained in the Department’s file [number]. The applicant’s claims are summarised as follows:
§While working in this position, military officers took advantage of the applicant and mistreated him because he was an iTaukei. A high-ranking military officer came to his office and demanded he [undertake specified work tasks].
§The applicant also received phone calls regarding this matter from other high-ranking officers who forced him to [perform work tasks] as soon as possible.
§The applicant got scared for his life because, in the past, some other supervisor was taken to the army camp and tortured.
§After the visit from the officer in his [worksite], the applicant lived in constant fear that the same thing would happen to him.
§After the coup in 2006, the applicant’s rights were taken away from him by the military government. The government of Fiji is undemocratic and presents a threat to the applicant.
§The applicant had to run away to maintain his sanity. He did not want to do something that would have a negative impact on his family. His depression disappeared when he arrived in Australia and found safety here.
§In Australia, the applicant has freedom of speech, and he is free to discuss any matters about his home country without fear of being reported to the military or the police.
§The applicant cannot relocate to another part of Fiji to be safe because it is the government that has been threatening him and his family.
§The applicant fears he would be tortured and silenced if he goes back.
Applicant was interviewed by the Department
The applicant was interviewed via a videoconference call between the Department’s Sydney and Melbourne offices on 4 December 2019. The details of that interview were recorded in the delegate’s decision record.[2]
[2] see, Department of Home Affairs File no. [number] Delegate’s decision record, see in particular, pp.2-4
In his evidence, the applicant confirmed he was employed as a [Position 1] for [Employer 1] from 2011 to 2013. The applicant also confirmed that from January 2013 to June 2019 he was working as a ‘[Position 2]’ for the [Employer 1]’s contractor firm (an “Australian/NZ-owned company according to the applicant”). Part of his employment responsibilities was that he was ‘in charge’ of the [worksites] which were situated in [City 2] and [Village 1] in [Fiji].
The applicant told the Tribunal that while he was working in this position, local military officers (which he did not name) approached him and “demanded” of him to do certain [tasks] in the area.
The applicant told the Tribunal that a “high-ranking officer” came to the applicant’s office and “demanded” that he “without delay” [undertake Work Task 1] and when that was completed to their satisfaction (the military’s) the applicant was “to complete [Work Task 2]”. The applicant provided no description of the [work location] or the whereabouts of the [work location].
The applicant also told the Tribunal that he also received “phone calls from other high-ranking officers” to [complete] “other [work tasks] as soon as possible.” The applicant did not provide any specific examples to the Tribunal concerning these requests from the local military for him to [perform specified work tasks].
The applicant told the Tribunal that these telephone calls from high-ranking military persons became too much for him to handle and he determined that he would leave Fiji when the opportunity surfaced.
The applicant told the Tribunal that his fears became more intense when he found out that “in the past, some other supervisor was taken to the army camp and was tortured.” However, the applicant did not provide any details of this incident.
The Tribunal asked the applicant was he at anytime forcefully detained by the military and tortured. The applicant said that he “completed all of his tasks” and was never “harmed” by the military but that he always had (and still has) “a fear about the military” in Fiji. The applicant feared, the military’s “influence in Fiji” over all society and the government.
According to the applicant, after the 2006 coup d’état the applicant’s ‘rights’ were “taken away” by the military government which was (at that time) “undemocratic” and “threatening to the applicant.”
The applicant was asked by the Tribunal in what ways was the military government (in 2006) threatening to him and how did it take away from him his ‘personal freedoms.’ The applicant’s response was to tell the Tribunal that he “was in fear of what - they (the military) will do to me” but did not provide any specific instance of the military having attempted to restrain him against his will or having inflicted any acts of violence on his person.
The Tribunal told the applicant that according to the available country information on Fiji, the pro-military government (the result of the 2006 coup d’état) had been defeated at the polls in 2019 and even the former military general and prime minister had been accused and charged as having abused power and was awaiting a trial. The applicant accepted that this was the situation currently in his country, but he told the Tribunal that the “military” still had “influence” and would exert that influence if they needed to do so on anyone they pleased including on the applicant because of his past relationship with the military.
The applicant also described the current Fijian government as “fragile” and that the military do and have exerted “their influence” over various departments of government in order to suit “their own interests.” The applicant provided an example to the Tribunal, claiming that the Fijian ‘police’ were influenced by the military.
The applicant was asked by the Tribunal if, while was in Australia, did he participate in any political activities directed against the Fijian military on social media or in him participating in a public protest? The explained to the Tribunal, that he participated politically on social media making comments about the Fijian military and the actions or inactions of the Fijian police. The Tribunal asked the applicant – if he had any copies of his social media activities but the applicant said he had known. The Tribunal asked if the applicant had authored any articles which had been published on social media websites condemning the Fijian military and again the applicant did not provide examples of his claimed activities except to draw the Tribunal’s attention to articles published by others, concerning the politics of Fiji.
The Applicant’s further concerns if he is returned to Fiji
Further, the applicant told the Tribunal, that the Fijian police was “influenced by the military” and “could not be trusted”. He also said that the Fijian police could not provide “protection to citizens” like him who were being persecuted by elements within the Fiji armed forces. The applicant presented no actual evidence of this except to refer the Tribunal to certain copies of news reports he had submitted concerning recent developments involving former military persons in criminal activities which were now before the courts on Trial in Fiji.
Why was the applicant on a Fiji Immigration watchlist?
The applicant was asked by the Tribunal – why had he been placed on immigration watchlist? The applicant explained that when he was in Fiji, he and his wife (who remains in Fiji) obtained from a government instrumentality “a loan” – a “housing loan” in the amount of Fiji$[amount]. The loan was applied and obtained for the sole purpose for purchasing a home but (as was explained by the applicant) the loan money was diverted towards purchasing a motor vehicle. The applicant explained that court proceedings are pending in order for the government instrumentality to retrieve the misappropriated funds. The applicant and his wife have been named as co-defendants in this matter. The matter, according to the applicant is current awaiting hearing before the local Magistrates’ Court.
The applicant explained that his name being placed on Fiji Immigration watchlist could be related by this legal issue which is pending currently before the Magistrates’ Court in Fiji.
The applicant was asked if he had any documents issued to him by the Magistrates’ Court in Fiji? He explained that a lawyer had been retained by his wife and the lawyer has all the documents and is representing both the applicant and his wife before the Court in this matter.
The applicant told the Tribunal that the scheduled hearing of this matter was for [date] 2023. The applicant undertook to provide the Tribunal with information concerning the outcome of the court hearing.
Any threats made by the applicant’s persecutors towards his wife?
The applicant told the Tribunal that his spouse in Fiji has not been intimidated by the military because of his past dealings with the military.
The applicant also was asked and confirmed for the Tribunal that he had not faced “any persecution because of his ethnicity” other than as he has made clear in his claims currently before the Tribunal.
The applicant’s health
The applicant told the Tribunal that he had no issues with his health and that his “health was good.”
Request to provide further documentary evidence
The applicant gave an undertaking to provide all documents relevant to his evidence he had provided to the Tribunal at the hearing, no later than the close of business on 30 May 2023.
Information – post hearing submissions provided by the applicant
On 30 May 2023 by email, the applicant provided further information to the Tribunal concerning the Magistrates’ Court proceedings in [Organisation 1] ‘fraud matter’ which suggested that court proceedings have been re-scheduled for [date] 2023 and that the applicant’s wife had engaged [solicitors] to represent the matter before the court. Also, the applicant provided a reference from the President of the Fijian Association and confirmed that the applicant was “ok” as far as it concerned his physical and mental health.[3]
COUNTRY INFORMATION – REPUBLIC OF FIJI – INDIGENOUS FIJIANS – THE STATE AND THE RULE OF LAW
[3] see AAT File applicant’s email and “attachments” dated 30.05.2023.
Fiji – general information – the Fijian economy
The available country information reports that Fiji is one of the most developed and connected of the Pacific Island economies. Earnings from the tourism industry and remittances from Fijians working abroad represent the country’s largest foreign exchange earners.[4] Economic growth was forecast at 3.8 per cent in 2017, continuing to be driven by the services sector (tourism and retail), construction and manufacturing, and is supported by the lowest interest rates and low fuel prices.[5] Fiji’s economy grew an average 3.6 percent annually in the five years to 2018.[6] Despite the challenges brought by four devastating cyclones in April 2018, in May 2018 then-PM Bainimarama forecast the economy’s growth “for the nineth consecutive year, the longest period of sustained economic growth ever recorded”; the Reserve Bank of Fiji then projected 3.2 percent growth in 2018 and 3.4 percent growth in 2019.[7] In May 2019, the Bank revised its projection down from 3.4 to 2.7 percent growth in real gross domestic product in 2019, in line with the slowdown anticipated for the global economy.[8]
[4] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see, paragraph 5.5, CISEDB50AD5787.
[5] [File number] – [applicant name] – News Articles II – 11/12/2019.
[6] ‘The World Factbook -Fiji’, Central Intelligence Agency, 12 December 2016, CIS38A80123230
[7] Fiji on course for 11^th year of growth: PM Bainimarama, Filipe Naigulevu, The Fiji Times, 28 May 2018, CIS7B839411209.
[8] ‘RBF revises Fiji’s GDP growth for 2019’, Singh I, FBC [Fiji Broadcasting Corporation] News, 10 May 2019, 20190618103429.
Fiji – Political situation
Country information reports indicate that during the period of military rule after the then Fiji Military Forces commander, Commodore Josaia Voreqe (Frank) Bainimarama, overthrew the elected government in December 2006, freedom of speech, expression and association were curtailed in Fiji; the military government employed repressive tactics to stifle protests and intimidate critics; and serious human rights abuses occurred. This included the arrest, detention and physical mistreatment by the military of perceived opponents.[9] However, subsequent reports indicate a generally improving human rights situation in Fiji. The US Department of State reported in 2013 and 2014 that the military had ceased its practice of detaining, and in many cases abusing, persons deemed critics of the government.[10] Fiji’s Constitution set out in the Constitution of the Republic of Fiji (Promulgation) Decree 2013, which came into force on 6 September 2013, provides for protection against arbitrary arrest and detention. The Constitution provides for the right of any person to challenge the lawfulness of their arrest in court and the government generally respected these requirements.[11] The 2013 Constitution guarantees citizens the right to form or join a political party, participate in a political party’s activities or recruit members on its behalf, and campaign for a political party, candidate or cause.[12] Military rule was removed, and general election held in 2014.[13] There was greater state tolerance of political gatherings, but the government could limit this right in the interests of national security, public safety, public order, public morality, public health, and the orderly conduct of elections.[14] DFAT assessed in 2017 that senior opposition political party members (those running for office) faced a moderate risk of being monitored and intimidated by the security services, especially in the lead-up to elections, but were at the low risk of being arbitrarily detained or harassed.[15] Six political parties were able to contest the November 2018 general election.[16] Three parties reached the five percent threshold required by law to secure seats in Parliament.[17] The election resulted in a narrow win for the Fiji First Party, led by Mr Bainimarama.[18] A Multinational Observer Group declared that parties and candidates were ‘generally able’ to convey their political messages to the electorate, that the election process was ‘transparent and credible overall’ and that the outcome ‘broadly represented’ the will of Fijian voters, although trust in institutions ‘remains an issue in some quarters.’[19]
[9] ‘US Department of State, Country Reports on Human Rights Practices for 2011: Fiji’, Released by the Bureau of Democracy, Human Rights and Labour, 24 May 2012, CX267567: ‘FIJI: Freedom in the World 2011- Fiji’, Freedom House , 21 June 2011, CX233610; ‘FIJI: Coup related harassment, threats, and human rights abuses’, DFAT, CIR No. 07/15, 13 February 2007, CX233610: ‘FIJI: Systematic human rights violations after military crackdown’, Amnesty International, 7 September 2009.
[10] ‘2012 Country reports on human rights practices – Fiji’, US Department of State also State Department, 19 April 2013, CX309551; United States Department of State, Country Reports on Human Rights Practices for 2013: Fiji, Bureau of Democracy Human Rights and Labour, 27 February 2014, CIS2975.
[11] ‘Country reports on Human Rights Practices for 2018 – Fiji’, US Department of State, Bureau of Democracy , Human Rights, and Labour, US Department of State, 13 March 2019, see section 1, p. 3 20190314114844.
[12] ‘Constitution of the Republic of Fiji (Promulgation) Decree 2013 (DecreeNo.24 of 2013)’ p.3 201903141144 Government of Fiji, 6 September 2013 (in force 6 September 2013), section 23, in the Government of Fiji Gazette. Extraordinary, Vol 14 No.80, 6 September 2013)
[13] ‘Human Rights and Democracy: The 2014 Foreign & Commonwealth Office Report’, Foreign and Commonwealth Office, UK Government, 12 March 2015, CISEC96CF1345
[14] ‘Freedom in the World 2018 – Fiji’, Freedom House, 5 October 2018, NGED867A610043, p. 2; ‘Country Reports on Human Rights Practices for 2018 – Fiji’, US Department of State, Bureau of Democracy, Human Rights, and Labour, US Department of State, 13 March 2019, 20190314114844, p.8.
[15] ‘DFAT Country Information Report – Fiji 27 September 2017’, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787, p. 17.
[16] ‘2018 Fijian General Election. Final Report of the Multinational Observer Group’, Multinational Observer Group Fiji Elections, 20 February 2019, p. 18, 20190226083455
[17] Ibid, see p. 37
[18] ‘Fiji election: PM Frank Bainimarama’s Fiji First Party narrowly wins election’, Australian Broadcasting Corporation (ABC) (News), 18 November 2018, CXBB8A1DA3455
[19] ‘2018 Fijian General Election, Final Report of the Multinational Observer Group’, Multinational Observer Group Fiji Elections2018, 20 February 2019, 20190226083455, at p.6; ‘EU Annual Report on Human Rights and Democracy in the World 2018 Country Updates’, [Council of the European Union], [29 May 2019], pp.223-224, 20190617092205; ‘Country Reports on Human Rights Practices for 2018 – Fiji’, US Department of State, Bureau of Democracy, Human Rights and Labour, US Department of State, 13 March 2019, 20190314114844 p.1.

Fiji has an extensive network of non-government organisations (NGO), most of which have freedom of operation and are able to hold public meetings, publish reports and documents, implement programs, and meet with government and non-government figures. The environment for civil society is, however, subject to certain legal and non-legal constraints.[20] NGO operations are constrained by the Crimes Decree 2009, which includes criticism of the government in its definition of sedition; the Public Order (Amendment) Decree 2012, which contains a broad prohibition on speech that could damage the economy; and the Media Industry Development Decree 2010, which authorises the government to vet all publications. DFAT assessed in 2017 that ‘high-profile public figures, including the leaders of organisations, who may be seen to challenge the government’s authority or undermine its legitimacy, are at risk of negative attention, such as arrest or detention.[21] The Council of the European Union recently reported that enforcement of the restrictive media decree and monitoring by the Media Industry Development Authority (MIDA)[22] is ‘continuing to impose pressure on journalists, editors, and media owners, triggering self-censorship and hindering full and transparent democratic debate.’[23]
[20] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 14 April 2015, section 3.75, at p.17, CISEC96CF1559.
[21] ‘DFAT Country Information Report – Fiji 27 September 2017’, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787, see paragraph 3.41, at p. 16.
[22] ‘Country Reports on Human Rights Practices for 2018 – Fiji’, US Department of State, Bureau of Democracy, Human Rights, and Labour, 13 March 2019, p.8 Section 2.a, 20190314114844.
[23] ‘Country Updates on Human Rights and Democracy 2017’, European Union, 28 May [14 June] 2018, p. [209], CIS7B839411446.
DFAT reported in 2017 that social media has become “a significant forum for political discussion in Fiji, with approximately 440,000 Facebook users and an active Twitter and blogger community.”[24] The report provides a quote from (former) PM Bainimarama’s speech at the University of the South Pacific’s 2016 Open Day, where he warned students about the ‘misuse of social media by some people to cause division and upset.’[25] The (former) PM went on to say that “freedom of expression is a vital component of any democracy…but it is not an absolute right. With freedom comes responsibility – a responsibility to keep our society cohesive and protect the rights of every citizen.”[26]
[24] DFAT Country Information Report – Fiji 27 September 2017’ Department of Foreign Affairs and Trade (DFAT), 27 September 2017, CISEDB50AD5787, at p. 20.
[25] Ibid at pp.20-21.
[26] Ibid at p.21
Mental health treatment in Fiji
Health care in Fiji is largely free and generally effective, with the government providing public primary and secondary health care service.[27] DFAT was unable to independently verify anecdotal reports of indigenous Fijians waiting longer at public hospitals when indigenous nurses were present.[28] There is a Free Medicine Programme, which is accessible for low-income earners.[29] There is a Free Medicine Programme, which is accessible for low income earners.[30] The program received a budget of $10 million in the 2016 to 2017 fiscal year[31], which is mostly “devoted to the procurement and distribution of medicines to local pharmacies and health facilities throughout Fiji”[32]. The program includes access to medicine to treat a variety of conditions, including mental health.[33]
[27] Ibid at p.6
[28] Ibid at p.7
[29] Fiji Free Medicine Program [2015], Fiji. Ministry of Health & Medical Services, Ministry of Health & Medical Services website, 03 March 2015, CISEC96CF15603
[30] 'How to Benefit from Government’s Free Medicines Programme. Akbar', Fiji Sun, 16 February 2017, CXC90406614206
[31] 'Free medicine program benefits over 24,000 people in Fiji', Xinhua (net) also News.cn also China View, 15 February 2017, CXC90406614207
[32] Free Medicine Program [2016], [Fiji. Ministry of Health & Medical Services], [Fiji.] Ministry of Health & Medical Services website, 08 November 2016, CIS38A80125055
[33] World Health Organization, Department of Mental Health and Substance Abuse 2012, [Mental Health Atlas 2011.] Fiji, 22 July; CIS961F9402150
World Health Organization (WHO) reported in July 2012 that Fiji spent about 1.9% of its total health budget on mental health (all of it on its mental hospital).[34] In September 2014 the Ministry of Health’s deputy secretary for hospital services said the Ministry had incorporated its Mental Health Unit into the National Wellness Centre and that training had been conducted in all four divisions to over 200 staff.[35] The Ministry planned to assist more people through specialist community mental health teams established in hospitals in each division, mental health clinics, wellness clinics and home visits.[36]
[34] World Health Organization, Department of Mental Health and Substance Abuse 2012, [Mental Health Atlas 2011.] Fiji, 22 July; CIS961F9402150
[35] 'Government Launches Campaign for Mental Health Awareness', Fiji: Government of (fiji.gov.fj), 10 September 2014, CX1B9ECAB12983
[36] The Fijian Government 2014, ‘Government Launches Campaign for Mental Health Awareness’, 10 September; CX1B9ECAB12983. In October 2016 fijivillage.com reported that according to 2011 World Health Organisation (WHO) estimates, about 80,000 Fijians suffered from mental illness: Chaudhary F 2017, ‘Dr Nirvana Karan resigns’, The Fiji Times, 17 May; CXC90406614199. The same statistic is cited in Baleilevuka R 2016, ‘Minister demands respect for people suffering from Mental Illness’, fijivillage.com, 15 October; CX6A26A6E17068.
In October 2015 Fiji Sun, reporting the launch of Fiji’s National Mental Health and Suicide Prevention Policy in Suva on World Mental Health Day, quoted Youths Champs 4 Mental Health president Lionel Rogers stating there were services available for people to deal with their issues and cope with stress.[37] In September 2016 Fiji Sun reported a three-day workshop conducted by Youth Champs for Mental Health to train 17 students from eight secondary schools in Suva in mentoring on mental health and suicide prevention, with similar training programs planned for secondary schools in Lautoka and Labasa.[38]
[37] Mala S 2015, ‘Mental Health All Our Business: Adi Koila’, Fiji Sun, 10 October; CXBD6A0DE19588
[38] Satakala M 2016, ‘Prioritise Mental Health: Youth Champs’, Fiji Sun, 18 September; CX6A26A6E17076
Indigenous Fijians (i Taukei)
There is no official discrimination against indigenous Fijians in Fiji.[39] The overwhelming majority of government services are centralised and provided on a non-discriminatory basis. Other services, including rural development, are provided through the indigenous Fijian administration and could be considered to advantage indigenous Fijians or Rotumans.[40] Much of the British origin ‘native administration’ system, set up to protect indigenous Fijian culture, continues modified and renamed, and is a form of positive discrimination.[41] Indigenous Fijian (iTaukei), Rotuman and Banaban land rights were further strengthened under the 2013 Constitution.[42] No data on ethnicity was aggregated or released as part of the 2017 Census.[43] In August 2021 FBS reported estimates, based on its 2019-20 HIES, that iTaukei were 62 percent of the population.[44] In September 2021 FBS’s chief executive officer was terminated for endorsing publication of ‘unverifiable’ information relating to ethnicity and religion.[45] In the 2007 Census indigenous Fijians (iTaukei) comprised 57 percent of the population,[46] and at a 2018 estimate could constitute 59 percent of voters.[47] Indigenous Fijians predominate in the civil service and dominate the security forces.[48] 33 of the current 50 MPs are indigenous Fijian or Rotuman.[49] 34 of the 51 Members of Parliament (MPs) elected in November 2018[50], and 11 ministers and assistant ministers in the 23-member Cabinet in 2020, and nine in the 20-member Cabinet in mid-2021, are indigenous Fijian or Rotuman.[51]
[39] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see, 3.16 at p.14 CISEDB50AD5787.
[40] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see, Section 3.14, p. 13, CISEDB50AD5787.
[41] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see, Section 3.13, p. 13, CISEDB50AD5787.
[42] ‘World Directory of Minorities and Indigenous Peoples – Fiji Islands’, Minority Rights Group International, September 2017, on UNHCR Refworld website, p.[2], CISEDB50AD9299. On the 2013 Constitution on ethnicity in general see ‘Human Rights Director: Reflections on Significance of Constitution Day’, Raj A, Fiji Sun, 11 September 2021, 20210916141700.
[43] ‘Statement from the Government Statistician’, Fiji Bureau of Statistics, August 2021 [document modified8/09/21], p.4 including Table 1, 20210916140700; ‘477,500 of the Fijian population reside in the urban areas with a total estimated Fijian population of 864,132’, Narayan V, Fiji Village, 13 September 2021, 20210916135938.
[44] ‘2019-20 Household income and Expenditure Survey’, Fiji Bureau of Statistics, August 2021 [document last modified 8/09/2021], p.4 including Table 1, 20210916140700; ‘477,500 of the Fijian population reside in the urban areas with a total estimated Fijian population of 864, 132’, Narayan V, Fiji Village, 13 September 2021, 20210916141700.
[45] ‘Axe Falls On Stats Chief’, Chand S, Fiji Sun, 16 September 2021, 20210916135010; ‘CEO of Fiji Bureau of Statistics sacked’, Narayan V, Fiji Village, 15 September 2021, 20210916135010; ‘Ministry confirms termination of Naigama’, FBC News,15 September 2021, 20210916134834; ‘Bureau of Stats CEO axed for breach of contract’, Chaudhary F, The Fiji Times, 16 September 2021, 20210916133448, re ‘2019-20 Household Income and Expenditure Survey’, Fiji Bureau of Statistics, August 2021 [document last modified 8/09/2021], pp.9 & 61-62, 20210916140700. International statisticians criticised the termination: ‘World bodies call out Fiji Government over statisticians sacking’, RNZ [Radio New Zealand], 14 October 2021, 20211014070701.
[46] ‘Sharing the City: Urban Growth and Governance in Suva, Fiji’, Phillips, T and Keen, Australian National University: State, Society & Governance in Melanesia, 27 September 2016, p.4, CIS38A80122052.
[47]‘Stand on numbers’, Professor Wadan Narsey, The Fiji Times, 3 February 2018, CXBBA1DA23211, No data on ethnicity has been released from the most recent census (2017); ‘Race data held back’, Luke Nacei, The Fiji Times, 17 January 2018, CXBB8A1DA23209; ‘Call for a release of ethnic data from Fiji census’, Radio New Zealand International, 22 January 2018,CXBB8A1DA23212.
[48] ‘Country Reports on Human Rights Practices for 2017 – Fiji’, US Department of State, Bureau of Democracy, Human Rights and Labour, 20 April 2018, p.14 Section 3, OGD95BE927438.
[49] ‘Members of Parliament [Fiji, elected November 2018]’, Parliament of the Republic of Fiji, undated, Accessed 7 May 2019, 20190507153532.
[50] ‘Members of Parliament’ n.d [current], Parliament of the Republic of Fiji, accessed 27 October 2017, CISEDB50AD6086.
[51] ‘Cabinet Ministers sworn-in’, Kate T, The Fiji Times, 22 November 2018, on Internet Archive Wayback Machine, captured 22 November 2018, 20190507152513. ‘Indo-Fijians…held six of the 13 cabinet minister positions and six of the ten assistant-minister positions’ according to ‘Country Reports on Human Rights Practices for 2019 – Fiji’, Bureau of Democracy, Human Rights and Labour, United States Department of State, 11 March 2020, p.13, section 3, 20200312105300; ‘Members of Parliament [Republic of Fiji],’ 24 August 2021, pp[1]-[2], 20210824084319.
State protection
The Fijian Police Force is generally seen as capable and impartial, but has been involved in the adverse treatment of opposition activists. Fiji has a police-to-population comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific.[52] The Fiji Police Force is generally a professional, albeit under-resourced, law enforcement organisation.[53] It is generally seen to be impartial, and has some ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible.[54] However, there have been credible allegations of police involvement in beatings and assaults[55] and impunity is a problem in cases with political implications.[56] DFAT reported in 2017 that credible contacts had also made allegations to it that the Police intelligence Bureau was routinely involved in monitoring and occasional harassment of opposition activists.[57]
[52] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 5.8, p.27, CISEDB50AD5787.
[53] ‘Fiji 2018 Crime and Safety Report’, Overseas Security Advisory Council (OSAC), 26 June 2018, p.[8], 20190523134942.
[54] ‘DFAT Country Information Report – Fiji’ Department of Foreign Affairs and Trade, 27 September 2017
[55] ‘Country Reports on Human Rights Practices for 2019 – Fiji’, Bureau of Democracy, Human Rights and Labour, United States Department of State, 11 March 2020, p. 1 section 1.a, 20200312105300; ‘Country Reports on Human Rights Practices for 2018 – Fiji’ US Department of State, Bureau of Democracy, Human Rights, and Labour, 13 March 2019, p.1 Section 1.a, ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 5.9, p.27, CISEDB50AD5787, see also ‘Beating Justice: How Fiji’s Security Forces Get Away with Torture’, Amnesty International, 4 December 2016, CIS38A80122896.
[56] ‘Country Reports on Human Rights Practices for 2017 – Fiji’, US Department of State, Bureau of Democracy, Human Rights, and Labour, 20 April 2018, p.1 Executive Summary 1.a and p. 4 Section 1.d, OGD95BE927438; ‘Country Reports on Human Rights Practices for 2019 – Fiji’, Bureau of Democracy, Human Rights and Labour, United States Department of State, 11 March 2020, p. 1 Executive Summary & p.2 Section 1.c, 20200312105300.
[57] ‘DFAT Country Information Report – Fiji’ Department of Foreign Affairs and Trade, 27 September 2017, Section 5.9, p.7, CISEDB50AD5787.
Judiciary
The judiciary in Fiji is not fully independent and, as a result, it does not provide protection to high-profile opponents of the government. DFAT reported in 2017 that the government retains influence over judicial appointments, and the judiciary appears to display partiality in the exercise of its authority.[58] In low-level civil and criminal cases, the courts generally appear competent and even-handed, but partiality may emerge in politically sensitive cases.[59] A shortage of prosecutors and judges has resulted in the slow processing of cases.[60] The Judicial system has been assessed as not being capable of providing protection to high-level opponents of the government. For low-profile and non-political matters, however, it is generally capable of effective state protection.[61]
[58] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Sections 5.14 and 5.16, at pp. 27, 28, CISEDB50AD5787.
[59] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Sections 5.14 and 5.16, at pp. 28, CISEDB50AD5787.
[60] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 5.16, p.28, CISEDB50AD5787.
[61] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, Section 5.17, p.28, CISEDB50AD5787.
FINDINGS AND REASONS FOR DECISION
The issue of credibility
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v MIEA (1996) 64 FCR 151 the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:
“care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”
The Tribunal also accepts that “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt”: see, United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva, 1992) at paragraph [196]. However, the Handbook also states at paragraph [203] that:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run contrary to generally known facts.”
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: see, MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; see also: Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Consideration of the applicant’s claims – is the applicant entitled to protection as provided for by s. 36(2)(a) of the Act?
Issues with the Fiji military
The applicant told the Tribunal that he was employed as a [Position 1] for [Employer 1] from 2011 to 2013 and later from January 2013 to June 2019 he was employed as a [Position 2] for [Employer 1]. The Tribunal accepts the applicant’s employment history as claimed.
The applicant, in his evidence to the Tribunal claimed that while working for [Employer 1] he was ‘mistreated’ by the military because of his ethnicity – being an iTaukei. The applicant claimed that ‘high ranking officers’ demanded of him to undertake certain projects – for example, [Work task 1][62] [and Work Task 2] (the applicant did not identify [details or location of the work]). The applicant also claimed that he received other ‘phone calls from other high-ranking officers’ requesting him ‘to [undertake other work tasks] as soon as possible’. However, the applicant provided no description (when asked) about these specific projects except to say that he carried out all the requests made of him by the local military.
[62] [Information redacted]
Nevertheless, the applicant claimed that he felt ‘fear’ for his personal safety because he had heard that ‘other supervisors’ in a similar position as he was, had been arbitrarily detained by the military at a local military camp and tortured. When asked whether he was detained or tortured by the military, the Tribunal was told that he had never been detained by force or physically tortured by the military because (according to the applicant) he had “completed all of his tasks”.[63] Having admitted not being detained against his will, nor tortured, the applicant told the Tribunal that he still ‘feared the military’s influence in Fiji’ and ‘over Fiji society.’[64] The applicant also claimed that ‘after the coup d’etat in 2006’ his ‘rights were taken away’ by the military government which (according to the applicant) was ‘undemocratic’ and ‘threatening’ to him.[65] The applicant was questioned about these claims and asked to explain how the military specifically targeted him and for what reason or reasons. Again, the applicant’s response was that he ‘was in fear’ of what ‘they (the military) will do to me’[66] but when pressed on this to provide examples or a specific instances of the military interfering with his personal rights or freedoms, the applicant was mute and only referred to feeling fears generally and not in any way exhibiting a specific instance of having come under the attention or scrutiny of the military.
[63] see, AAT decision, in particular, paragraph [27].
[64] Ibid, at paragraph [27].
[65] Ibid, at paragraph [28].
[66] Ibid, at paragraph [29].

As noted above, the applicant specifically mentioned the military’s interest in [Work Task 1] and [Work Task 2]. Considering the overall credibility of the applicant’s description of his work for [Employer 1] from 2011 to 2013 and later for [Employer 2] from 2013 to June 2019, the Tribunal is willing to accept as the truth that [Employer 1] and [Employer 2] (while the applicant was employed with these organisations) had done work [as claimed] though it is difficult to verify (as was claimed) that the military had a particular interest in these particular projects as was claimed. The Tribunal was unable to find any information of the military being involved in any [such] projects in the time the applicant was employed with [Employer 1] and [Employer 2]. That being the case, following from the applicant’s own admission that he had done all that was required of him to do concerning these two specific projects, the Tribunal does not accept and finds that the military or elements of the Fijian military would have any cause to seek out the applicant for any particular reason or reasons.
Also, the Tribunal considered the applicant’s claim that the Fijian military was placing pressure on him because he was of indigenous Fijian ethnicity. Again, this claim was vague and not supported by evidence. Moreover, the Tribunal noted the advice of the Department of Foreign Affairs & Trade (DFAT) on Fiji which reports the following:[67]
“Ethnically, the military is overwhelmingly indigenous Fijian (probably over 90 percent, although official figures are unavailable). It is widely considered to be a stronghold of indigenous Fijian power.”
[67] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affair and Trade, 27 September 2017, see paragraph 5.5, CISEDB50AD5787.
Having considered the country information, and without any evidence to the contrary before the Tribunal, the Tribunal does not accept that the Fijian military would consider the applicant’s indigenous ethnicity as a basis or reason for mistreatment and persecution of the applicant.
Issue – that the applicant fears he will be generally mistreated and harmed because of his indigenous ethnicity if he returns to Fiji
The applicant claimed that he had no rights as an iTaukei, and he feared that harm would come to him if he returned to Fiji. The applicant was questioned by the Tribunal about this claim at the hearing, but he did provide any examples of having suffered harm and persecution because of his ethnicity outside what he claimed to having been ill-treated because of his ethnicity in his employment which the Tribunal had already dealt with above.
The Tribunal noted from the available DFAT country information reports that since 2009, the government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s political life.[68] It was also noted from the available information that without discounting the importance of race in communal and political relations, Fiji is an increasingly multi-racial and racially integrated country.[69] Having said this, it is important to remember, that indigenous Fijians who constitute nearly 60 per cent of Fiji’s population continue to feel a sense of economic marginalisation.[70] However, the applicant’s circumstances reveal that he had been employed by [Employer 1] as a [Position 2] from 2011 to 2013 and from January 2013 to June 2019 and in no way exhibited any mistreatment, harm or persecution because of his iTaukei ethnicity. Nor did the applicant provide any evidence to the Tribunal of having suffered any ‘marginalisation’ with the wider Fijian economy because of his iTaukei ethnicity. Therefore, the Tribunal does not accept that the applicant suffered harm or persecution in Fiji because of his iTaukei ethnicity as he claimed.
Issue – that the applicant was mistreated and harmed in Fiji because of his political opinion.
[68] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see paragraph 3.2, CISEDB50AD5787
[69] DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see paragraph 3.12, CISEDB50AD5787
[70] Ibid
The applicant claimed that Fiji was not a democracy, and that after the coup in 2006, he lost his ‘human rights’. The applicant was asked by the Tribunal to provide specific circumstances which his human rights had been lost because of the military having intervened in his country’s political life. The applicant only spoke in general and not specific terms; for example, he described the current Fijian government as “fragile” and that “the military do and have exerted their influence over various departments of government” in an attempt to “suit their own interests”. Another example, provided by the applicant was to tell the Tribunal that “the Fiji police were influenced by the military.”[71]
[71] see AAT decision, paragraph [31].
However, the applicant’s claim about his mistreatment and harm in Fiji for political reasons was vague and lacking specific detail which related to his person. The applicant provided no information which showed him to have been politically active while in Fiji and though he said he had posted some ‘political comments’ on social media the applicant provided only examples of other people’s comments on social media – no comments were provided by him which he had written. Indeed, the applicant was provided with further time (post-hearing) to provide such social media comments, but the Tribunal received none. The Tribunal accepts that the applicant may have had an adverse opinion concerning the 2006 coup and the politics associated with that coup, but that opinion was never made public and that he (while in Fiji) was not politically active, and had not posted any political comment on social media as he claimed. Therefore, the Tribunal finds that the applicant’s claim that he had been targeted by the authorities in Fiji because of his political opinion as not credible.
Issue – the applicant’s state of mental health
The applicant when interviewed by the delegate claimed that he would experience ‘anxiety’ and ‘psychological trauma’ because of the government’s ‘treatment of the political opposition’ and ‘indigenous people in Fiji.’ At the hearing, the applicant was specifically asked by the Tribunal concerning his health and the applicant’s response was that he had no issues past or at present concerning his physical and mental health. Nevertheless, for completeness, the Tribunal has considered the issue of health care in Fiji.
Health care in Fiji is largely free and generally effective, with the government providing public primary and secondary health care service.[72] DFAT was unable to independently verify anecdotal reports of indigenous Fijians waiting longer at public hospitals when indigenous nurses were available.[73] There is a Free Medicine Programme, which is accessible for low-income earners.[74] The program received a budget of $10 million in the 2016/2017 fiscal year,[75] which is mostly “devoted to the procurement and distribution of medicines to local pharmacies and health facilities throughout Fiji.”[76] The program includes access to medicine to treat a variety of conditions, including mental health.[77]
[72] DFAT Country Information Report – Fiji 27 September 2017, Department of Foreign Affairs and Trade (DFAT), 27 September 2017, at p.6 CISEDB50AD5787.
[73] Ibid at p.7
[74] Fiji Free Medicine Program [2015], Fiji Ministry of Health & Medical Services, Ministry of Health & Medical Services website, 03 March 2015, CISEC96CF15603.
[75] ‘How to Benefit from the Government’s Free Medicines Programme, Akbar’, Fiji Sun, 16 February 2017, CXC90406614206.
[76] ‘Free medicine program benefits over 24,000 people in Fiji’, Xinhua (net) also News.cn also China View, 15 February 2017, CXC90406614207.
[77] Free Medicine Program [2016], [Fiji. Ministry of Health & Medicine Services], [Fiji] Ministry of Health & Medical Services website, 08 November 2016, CIS38A80125055.
The World Health Organisation (WHO) reported in July 2012 that Fiji spent about 1.9% of its total health budget on mental health (all of it on its mental hospital).[78] In September 2014 the Ministry of Health’s deputy secretary for hospital services said the Ministry had incorporated its Mental Health Unit into the National Wellness Centre and that training had been conducted in all four divisions to over 200 staff.[79] The Ministry planned to assist more people through specialist community mental health teams established in hospitals in each division, mental health clinics, wellness clinics and home visits.[80]
7[78] World Health Organisation, Department of Mental Health and Substance Abuse 2012, [Mental Health Atlas 2011.] Fiji , 22 July; CIS961F9402150.
[79] ‘Government Launches Campaign for Mental Health Awareness’, Fiji: Government of (fiji.gov.fj), 10 September 2014, CX1BECAB12983.
[80] The Fijian Government 2014, ‘Government Launches Campaign for Mental Health Awareness’, 10 September; CX1B9ECAB12983. In October 2016 fijivillage.com reported that according to 2011 World Health Organisation (WHO) estimates, about 80,000 Fijians suffered from mental illness: Chaudhary F 2017, ‘Dr Nirvana Karan resigns’, The Fiji Times, 17 May;CXC90406614199. The same statistic is cited by Baleilevuka R 2016, ‘Minister demands respect for people suffering from Mental Illness’, fijivillage.com 15 October, CX6A26A6E17068.
In October 2015 the Fiji Sun, reporting the launch of Fiji’s National Mental Health and Suicide Prevention Policy in Suva on World Mental Heath Day, quoted Youths Champs 4 Mental Health president Lionel Rogers stating there were services available for people to deal with their issues and cope with stress.[81] In September 2016 the Fiji Sun reported a three-day workshop conducted by Youth Champs for Mental Health to train 17 students from eight secondary schools to Suva in mentoring on mental health and suicide prevention, with similar training programs planned for secondary schools in Lautoka and Labasa.[82]
[81] Mala S 2015, ‘Mental Health All Our Business: Adi Koila’, Fiji Sun, 10 October; CXBD6A0DE19588
[82] Katakala M 2016, ‘Prioritise Mental Health: Youth Camps’, Fiji Sun, 18 September, CX6A26A6E17076
Though the applicant told the Tribunal that his health was well and that he had no physical or psychological issues, or feared any psychological harm, the Tribunal did consider the available country information which indicates overall, that there are available resources to the applicant (if required in future) in order to support him in coping, managing, and treating any psychological or mental health condition he might develop. Furthermore, the conclusion can be made that there is no reason or reasons from the available evidence before the Tribunal to suggest that the applicant would be not be denied access to these services and treatment in Fiji if and when he required them.
Issue – the claim that the applicant fears mistreatment and harm from the authorities because of the ongoing investigation related to the [Organisation 1] fraud allegations.
From the outset, considering the applicant’s claims, the Tribunal asked the applicant to explain why the immigration authorities (in Fiji) had placed the applicant’s name on a ‘watchlist’?[83] In response, the applicant at first, with hesitation, told the Tribunal he did not know. When pressed by the Tribunal to recollect and to explain further, the applicant was of the opinion that his name may have been placed on a ‘watchlist’ by the immigration authorities in Fiji because of the pending proceedings concerning the [Organisation 1] fraud case before the Magistrates’ Court in [Fiji] which the applicant’s wife was a named party and (according to the applicant) he could be also a co-applicant. The Tribunal finds it plausible that the applicant’s name appearing on immigration ‘watchlist’ was to do with this [Organisation 1] fraud case and that he was either considered a ‘witness’ or a ‘co-accused’ or co-applicant by the authorities together with his wife and was so placed on this watchlist to ensure his appearance before the Court.
[83] see, Department of Home Affairs File no. [number] – Statement of Claim – Supporting Documents -Birth – Marriage Certificate.
Furthermore, the applicant told the Tribunal that the police had interviewed his wife regarding their joint loan application and involvement with a representative of [Organisation 1]. The applicant’s evidence was that he and his wife secured a housing loan (to purchase a home) in the amount of F$[amount] but used that money to purchase a motor vehicle. The applicant also told the Tribunal that court proceeding had been issued and that the matter was before the local Magistrates’ Court in [Fiji]. The applicant also told the Tribunal that his wife had engaged a solicitor for this matter. The country information reference by the Tribunal (and provided by the applicant)[84] supports the applicant’s claim that his wife (and he) was involved in the matter of [Organisation 1] fraud and is awaiting the outcome of the court case. The Tribunal accepts that there are legal proceedings on foot involving the applicant and his wife involving criminal fraud with [Organisation 1] and that the applicant might be a person of interest to the Fijian police.
[84] [File number] – [applicant name] – Supporting Documents
The applicant claims that he feared what might happen now that the matter was the subject of criminal prosecution by the police and before the Magistrates’ Court in [Fjji]. The Tribunal accepts that if the applicant was returned to Fiji, he would be interviewed by the police about the [Organisation 1] fraud and there is a possibility that the applicant may be prosecuted.
The Tribunal notes that state actions may not amount to persecution if it involves a law of general application, that is, a law that applies to everyone in the state without intentionally and deliberately targeting any one group, where such a law is appropriate and adapted to achieving a proper and legitimate state objective. This was made clear by examples in McHugh’s judgement in Applicant A, where his Honour stated that: ‘enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory.’[85]
[85] see, Legend – Refugee law Guidelines – 11.5 Laws of general application
The police in Fiji are generally seen as capable and impartial, but has been involved in the adverse treatment of opposition activists. It is generally seen to be impartial, and has some ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible.[86] Though impunity and corruption are problems[87] however, and there have also been credible allegations of police involvement in beatings and assaults.[88] ‘Credible’ contacts have also made allegations to DFAT that the Police Intelligence Bureau is routinely involved in monitoring and occasional harassment of political/opposition activists.
[86] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see section 5.11, p.27, CISEDB50AD5787
[87] ‘Country Reports on Human Rights Practices for 2017 – Fiji’, US Department of State, Bureau of Democracy, Human Rights, and Labour, 20 April 2018, p. 4 Section 1.d, OGD95BE927438.
[88] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see section 5.9, p.27, CISEDB50AD5787
On the other hand, as the information incorporated above reports, the judiciary in Fiji is not fully independent and, as a result, it does not provide protection to high-profile opponents of the government. The government retains influence over judicial appointments, and the judiciary appears to display partiality in the exercise of its authority.[89] In low-level civil and criminal cases, the courts generally appear competent and even-handed, but partiality may emerge in politically sensitive cases.[90] A shortage of prosecutors and judges has caused a slowdown in the processing of cases.[91] The judicial system has been assessed as not being capable of providing protection to high-profile opponents of the government. For low-profile and non-political matters, however, it is generally capable of providing effective state protection.[92]
[89] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see sections 5.14 and 5.16, pp.27,28, CISEDB50AD5787.
[90] Ibid see section 5.16 p.28, CISEDB50AD5787,
[91] ‘Country Reports on Human Rights Practices for 2018 – Fiji’, US Department of State, Bureau of Democracy, Human Rights, and Labour, 13 March 2019, p.5 section 1.d 20190314114844.
[92] ‘DFAT Country Information Report – Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, see section 5.17, at p. 28, CISEDB50AD5787.
The Tribunal concedes that there are difficulties and shortcomings in the policing system in Fiji in general terms, however, there is no substantial evidence before the Tribunal to indicate that the applicant would be treated discriminatorily by the police or the courts. There is no evidence before the Tribunal to indicate that the applicant has a significant political profile that would place him in a higher risk of discrimination or harm. Indeed, based on the information before the Tribunal, it is reasonable to expect that the applicant is of interest to the Fijian police for the same reason as his wife. It is acceptable, in the opinion of the Tribunal, that being questioned or interrogated with no further harm has been determined not to amount to persecution. In the Tribunal’s opinion, there is no evidence before the Tribunal that the applicant’s wife has been in anyway mistreated or harmed during the investigation process by the police or the court. The wife has permitted legal representation and is awaiting her hearing before the court. The same due process will be provided to the applicant when he returns to Fiji. Therefore, without any evidence to the contrary, the Tribunal finds that the applicant would be treated in a non-discriminatory manner according to workings of a law of general application with regards to the current proceedings before the Magistrates’ Court in [Fiji] concerning the [Organisation 1] matter.
While it fair to say that abuses of human rights was the norm and practice by the interim government in the immediate aftermath of the 2006 coup, there have been many improvements regarding this in recent times. One major development since the recent elections - being the actual charged and pending trial of the former leader of the 2006 coup and former Prime Minister, Commodore Frank Bainimarama, and the former Police Commissioner.[93] There is no evidence before the Tribunal to indicate that the applicant has an adverse political or ethnic profile which would attract the adverse interest of the current Fijian authorities if, and when he returns to Fiji. The interest of the Fijian authorities in relation to the ‘[Organisation 1] investigation’ is in the normal due process with the law of general application, and there is no evidence before the Tribunal to indicate that the law would be applied to the applicant in a discriminatory manner for any reason ort reason provided for by s.5J(1)(a) of the Act.
[93] see, news report, 11 May 2023, RNZ, Ex-Fiji Prime Minister Frank Bainimarama and suspended police commissioner Sitiveni Qiliho are due to face trial in July over one count each of abuse of office allegations, a local court has heard. The former strongmen leader and Qiliho were held in a Suva police cell in March over allegations relating to interfering with an active police investigation. They were bailed at the Suva Magistrates Court with strict conditions, including being ordered not to leave the country. "The charges relate to a complaint laid with the police by the University of the South Pacific in 2019 in relation to the activities of former staff members," the Office of the Director of Public Prosecution said in a statement. "They are alleged to have arbitrarily and in abuse of the authority of their respective offices directed for the termination of an active investigation. "Resident Magistrate Seini Puamau has set the trial date from July 17-28 on Thursday. A pre-trial hearing will take place on June 19. Bail has been extended for both men. The former PM said outside court on March 11 that he will fight the charge for his reputation and for democracy.

The Tribunal has considered all of the claims above, of the applicant, both individually and cumulatively. The Tribunal finds that if the applicant was to return to Fiji, he would not face a real chance of persecution now or the foreseeable future as provided for and required by s.5J(1)(b) of the Act.
Therefore, the Tribunal is not satisfied that the applicant meets the criteria in s.5H(1) of the Act and therefore is not a refugee. As the Tribunal is satisfied that the applicant does not meet the criteria set out in s.5H(1) of the Act, an assessment in regard to s.5H(2) of the Act[94] has not been made.
[94] Section 5H (2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
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).
Complementary Protection considered
Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion – complementary protection criterion in s. 36(2)(aa). The Tribunal considered whether the applicant would face a real chance of persecution in Fiji in connection with his race/ethnicity and political opinion (actual or imputed) and also considered the applicant’s psychological issues and concern associated with the investigation of the [Organisation 1] fraud by the Fijian police. The Tribunal has found there is no real chance the applicant will suffer serious harm from any of the reasons he claimed if he returns to Fiji. Having considered the country information discussed in this decision above, the Tribunal further finds there is no real risk of the applicant facing significant harm, as is provided for in s.36(2A), for these reasons if he returns to Fiji in the reasonable future. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or

(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.

[2023] AATA 2711

5 June 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

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