2006412 (Refugee)

This case concerned an appeal by a Fijian national against the decision not to grant him a protection visa. The applicant, who arrived in Australia in January 2015 on a tourist visa that subsequently ceased, remained in Australia unlawfully until his application for protection on 10 March 2020. He had been convicted of property damage in November 2019 and detained following his release from jail. The applicant claimed to have supported the opposition Social Democratic Liberal Party (SODELPA) and alleged he had been subjected to abuse and death threats from the Fijian military prior to leaving Fiji due to his political views and indigenous ethnicity.

The legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958, specifically whether he was a refugee due to a well-founded fear of persecution for reasons of political opinion or ethnicity, or alternatively, whether he faced a real risk of significant harm as a consequence of being removed from Australia. The court was required to assess the credibility of the applicant's claims in light of the evidence presented and country information.

The court affirmed the decision not to grant the protection visa. It found that while the applicant was indigenous Fijian and claimed to support SODELPA, the evidence did not establish a real chance of him suffering serious or significant harm upon return to Fiji due to his ethnicity or political views. The court noted inconsistencies in the applicant's account regarding his level of political activity and the timing of alleged harm. Specifically, the applicant's assertion of being taken to an army camp and tortured, which he initially linked to his political support, was later placed by him as occurring approximately four to five years before his departure to Australia, suggesting an incident around 2010 or 2011, which predated his alleged involvement with SODELPA campaigning prior to the 2014 elections. The court concluded that the applicant did not satisfy the criteria for a protection visa under section 36(2)(a) or (aa) of the Act.