2006668 (Refugee)

2006668 (Refugee) [2024] AATA 2646 (17 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006668
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Patrick Francis
DATE:17 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2024 at 1:01pm
CATCHWORDS
REFUGEE – protection visa – Fiji – harm from Fijian authorities – protest or political activities – the 2000 coup – harm from members of the military or police – economic situation – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 4 April 2020 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 19 July 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that any of the claims made by the applicant related to the refugee grounds set out in subsection 5J(1)(a) of the Act. As such the delegate concluded the applicant did not face a real chance of persecution and did not meet the definition of a refugee. The delegate was not satisfied that any of the claims made by the applicant amounted to him facing significant harm and therefore determined that the applicant did not meet the requirements to be granted protection on the basis of ‘complementary protection’ grounds.
The applicant appeared before the Tribunal on 22 January 2024 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Department of Foreign Affairs and Trade Country Information Report Fiji, 20 May 2022 (DFAT Report 2022) is referred to in detail below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the matter should be affirmed.
The applicant arrived in Australia [in] February 2014 and lodged his application for a protection visa on 19 July 2019. He provided his Fijian passport with his visa application and claimed at hearing and in the application that he was a citizen of Fiji. The Tribunal accepts that evidence and accordingly finds he is a citizen of Fiji and has assessed his claims against Fiji as his country of nationality and the ‘receiving country’ per s5(1).
Claims in protection visa application
In completing his protection visa application form the applicant provided responses to a number of questions.
At question 76 of the visa application form is the question ‘Why did you leave that country/those countries? Provide specific details’. The response indicates that the applicant was looking for opportunities outside to experience a different culture, he had taken a lesser salary in hope of widening his horizons and developing himself and his career. Further, that he wanted to see something different and, although there were opportunities in Europe, he chose to stay in Australia as it was closer to home.
At question 77 the question is asked ‘What do you think will happen to you if you return to that country/those countries?’. In response the applicant has written:
There is nothing happened if I returned to that country, it’s got terrible crime and poverty, but nothing much I can do.
At question 78 is the question ‘Did you experience harm in that country/those countries?’ Against which the box “No” is ticked.
Elsewhere in the visa application form it was indicated the applicant attempted to move within Fiji but was sick and tired of culture when relatives try to interfere with his life and it ended up with fighting. He set out, at question 82, that he did not believe the authorities Fiji could or would protect him if he went back as “the authorities would not protect me because the workers and trade unionists have been routinely targeted, harassed and physically assaulted." At question 83 he indicated that he couldn’t relocate within Fiji because the economy was not good.
As set out above, the delegate rejected the visa application on the grounds that the delegate was not satisfied the applicant’s claims related to any of the refugee grounds in the Act or that any of the claims made by the applicant in the visa application form amounted to him facing significant harm.
In lodging his application for review to this Tribunal the applicant provided a copy of the delegate’s decision.
Hearing
At hearing the applicant made new claims, that another reason he had come to Australia apart from financial concerns was that he had been assaulted by the police and military personnel in Fiji. He said that in 2000 there had been a mutiny by the military in Suva during which one of his cousin’s brothers was tortured and murdered. In addition a former schoolmate who was his best friend was murdered. He claimed to “always go against the military and national security” during that time because of the behaviour of the special army group. He referred to them being protected under a law. The Tribunal noted that was now some 23 years earlier and queried why the applicant would currently be in danger. He responded stating that in 2006 he was investigated by the criminal investigation unit who accused him of assaulting a young man in a nightclub. He said he was picked up at work and they tried to force him to say that he assaulted the young man to death. It was however someone else. The Tribunal noted those events appear to have occurred some 10 years prior to his departure from Fiji and queried whether that issue would seem to be resolved. The applicant confirmed that somebody else was responsible for the death and not him. He said however that the relatives of the young men keep blaming him and most of those relatives are in the military.
The applicant referred to events in February 2011 when he was taken with six other friends to the army barracks and was assaulted and tortured. He said this occurred because “they don’t want us to have a democratic protest”. In response to the Tribunal’s request for further detail regarding the assault, the applicant lifted his hand to demonstrate that one finger was missing. He said they were kept there for 2 ½ days and were assaulted. After their release they were told not to tell anyone or they would be killed. When asked why he thought this occurred the applicant responded that he and others were planning to have a democratic protest against the military government that took over in 2006. The Tribunal spoke further with the applicant about country information contained in a report from the Department of Foreign Affairs and Trade which indicated the issues arising from the 2000 and 2006 coups were largely resolved. The Tribunal queried why the applicant thought he might be at risk now in Fiji, noting time had passed and there was a different government. The applicant referred to an argument between the three political parties and his fear that the military might take over again. He said that if that occurred they would go for people “like us”, people who were always against them. The Tribunal queried why the applicant would have a profile as being against the military or government such that they would take action. The applicant said that he was a normal citizen but he didn’t like how the military would treat the citizens.
The Tribunal raised with the applicant that the fears he expressed at hearing were not contained in his protection visa application and specifically referred to those claims. Initially the applicant was silent, he indicated he understood the question but then said that sometimes he didn’t understand English. Although claiming that a friend had helped him to complete the form, he acknowledged at hearing that it was his handwriting in the visa application form. He acknowledged his evidence at hearing was that he came to Australia temporarily with a view to make some money so that he could return to Fiji and provide financial support for his family and help with his sons’ future. The Tribunal queried whether his earlier claims were consistent with his claims at hearing. In response the applicant referred to things being new to him in Australia in 2014, the impending expiry of his visa when he was about to board a flight back to Fiji that year, that he did not actually board the flight and that he knew he would stay illegally in Australia. The Tribunal again sought further detail from the applicant as to the difference between his claims in the visa application form and those made at hearing. The Tribunal queried whether anything changed between the time of the application and the time of hearing. In response the applicant referred broadly to the possibility that there might be another military coup in Fiji. In later discussions the Tribunal raised its concern regarding the failure to make those claims for protection earlier given the questions asked in the visa application form. The applicant inferred that it was only after the delegate’s decision that he understand how to apply for the visa.
When asked what he was concerned about if he returned Fiji the applicant said that he could be blamed for the death of the young man and indicated that if he went to prison there could be action from the young man’s relatives. The Tribunal noted that the applicant indicated that he had been cleared by the police of any wrongdoing and that he had lived in Fiji for many years after the incident and, as such, queried why he would fear harm from the police or the family. The applicant broadly referred to aggrieved family members in Fiji who had a relative or friend in the military utilising that connection. In the attempt to clarify and explain, the Tribunal again noted that he referred to a death in 2006, that no charges were laid, that no court hearings were held and that he had lived there for 10 years after the incident. The applicant referred to a Fijian law in which security personnel had been protected. He later asserted that the only thing he feared was relatives of the deceased, most of whom knew him although he did not know them.
The Tribunal referred to the visa application form indicating concerns about crime and poverty in Fiji and spoke with the applicant about why such claims regarding the man’s death were not included in his visa form, noting that specific questions were asked about harm. The applicant was initially silent. The Tribunal then referred to the responses provided at question 77 and queried whether that indicated his view at the time was that nothing would occur to him in Fiji. The applicant said that he asked one of his friends to apply, that he (the applicant) told him what to write. In later responses to the Tribunal’s questions, the applicant specifically acknowledged it was his own handwriting in the visa application form.
The Tribunal queried whether the applicant considered that the police or other authorities in Fiji could provide protection for him. He said that he did not think so. He indicated he had made one police report “when they came and took me” but asserted that the military destroyed the report as part of a broader burning of documents (including things such as police reports and medical reports) in 2006 after the military coup.
The Tribunal further spoke with the applicant about a report by the Department of Foreign Affairs and Trade regarding circumstances in Fiji and the effectiveness of the police force. In part, such information referred to the expectation that victims of crime in Fiji can expect fair treatment with dignity, that the Fijian police force overall has the capacity to protect individuals from societal harassment, discrimination and violence and that police are usually effective in carrying out their role in day-to-day crime detection and investigation and prevention. The Tribunal queried whether such information might suggest that effective protection would be available to the applicant. In response he referred to “the national security force most of the time making things in practical ways but sometimes it hardly happened”. He indicated, in the Tribunal’s understanding, that just because there are written laws it doesn’t mean that things happen in accordance with those laws. The Tribunal queried whether there was any reason that the police authorities might not assist the applicant in his particular circumstances. He said that most of the time they had an excuse, like lack of transport, hardly receiving calls or they might say that there was nobody there to help. He also indicated that what is said in newspapers is different to what happens in practice.
The Tribunal spoke further with the applicant about the incident in which he lost a finger. He said that it occurred in February 2011 by the military who tortured him with six other friends. The butt of the gun was banged against his fingers and crushed his bones. This occurred because they didn’t want them to have a democratic protest. The Tribunal queried whether the applicant retained concerns for the future in light of this incident. He responded stating that if anything happened they (the military) would mostly go for the people who used to go against them. He said Rambuka and Bainamarama were both military commanders who created a law to get themselves off from their wrongdoing. The Tribunal noted that the government in Fiji has changed and queried whether that concern remained. The applicant referred to tension in the government and the three major political parties. His concern is that there would be another military intervention very soon. The Tribunal asked how that might impact on him. He said that he “always” goes against the military for what they did to his cousins’ brother and his best friend from school. The Tribunal sought details from the applicant as to how he had gone against the military. The applicant was initially silent, then claimed that those responsible was still walking free, that the law safeguards them. Again the Tribunal asked what the applicant had done that would bring him to the attention of the military. The applicant then responded stating that most of the relatives of the young man who died blamed him and they are military personnel. The Tribunal queried whether such personnel would blame him if the police had investigated and not charged him. The applicant asserted that “if you do anything like that they will go after you, take the law into their own hands”.
The Tribunal also spoke with the applicant about how it was he was associated with the death of the young man. Initially he said that he did not know. He then said that they tried to create more trouble, they misunderstood the situation and what the police statement said. The Tribunal indicated its concern that the applicant had provided little detail about those events and why it was that he might be blamed. His response was “I think that is all”. He again referred to be not well-educated or fluent in English.
The applicant also gave evidence regarding his concerns about the economic situation in Fiji. He initially referred to the broader economic situation and inadequate wages. The Tribunal asked the applicant about his individual concern. The applicant indicated that he wished for the Australian Government to allow visas so that he and others like himself could work and fund the family back home and pay for the education of their children. The Tribunal asked the applicant about whether he would survive financially in Fiji and he indicated he would not. The only detail he provided in response was that concerning his ability to pay for his son’s university fees. Earlier in the hearing the applicant had given evidence that his wife and [number] adult children remain in Fiji, that the only problems they faced were financial ones because it was very expensive in urban areas. The applicant gave evidence regarding his employment in Fiji which was apparently in contrast to that provided in his visa application form. During discussions it was clarified that he believes he is entitled to a pension from the National Provident Fund in Fiji. He said he had not brought his wife with him to Australia because he did not plan to come and stay in Australia; he just wanted to come earn a bit of money and go back home.
Consideration

The applicant did not request an interpreter for the hearing which was conducted in English. The Tribunal notes that, where it appeared the applicant had difficulties at times understanding particular questions, the Tribunal either repeated the question or further explained it. At the end of the hearing the Tribunal also afforded the applicant opportunities to clarify any matters he believed were not understood sufficiently or to provide any further evidence he believed to be relevant. The Tribunal considers the applicant understood the matters under discussion and the questions asked of him and was able to participate effectively in the hearing.
The applicant claims that he fears harm from the police or military in Fiji for three different reasons. First, that he protested generally against the coup in 2006 or was planning to do so. Secondly, on the basis that he protested about the death of a family member and schoolfriend after the 2000 coup. Thirdly, that members of the military or police who were friends or family members of the young man killed in 2006 would seek to harm him. His claim extends to fear of harm from civilian family members or friends of the deceased. The Tribunal notes that the applicant’s evidence on these three claims was often intertwined in his responses.
Delay in lodging application
At hearing the applicant acknowledged he arrived in Australia in February 2014 but did not lodge a protection visa application until 2019, a delay of some five years. He claims not to have known what visa to apply for in order to make his status in Australia legal. On the basis of the applicant’s evidence the Tribunal finds that the applicant was aware in 2014 that his visa at the time was to expire. He gave no evidence of making any efforts to clarify his visa options in Australia. His initial evidence at hearing was that he came to Australia with the intention of staying temporarily to make money on return to Fiji to support his family. His evidence does not satisfy the Tribunal that there was, for example, some intervening or further event between that time and the date of his application such as to explain the delay. In the circumstances of this application, the Tribunal finds that the delay some five years in lodging the application is not consistent with the applicant’s claims to fear harm on return to Fiji for the reasons he states.
Inconsistencies in claims made in visa application form and at hearing
The applicant’s claims, as set out in the protection visa application form and those made at hearing, vary considerably. In his visa application form the reasons expressed for the applicant’s travel to Australia referred to an opportunity to experience different cultures and to further his career. He further indicated that nothing would happen to him if he returned to Fiji although noted that there was crime and poverty.
The applicant initially asserted at hearing that he asked one of his friends to apply for him and that he told his friend what to write. However, he later acknowledged that he completed the form in his own handwriting and provided no satisfactory explanation (in the Tribunal’s view) as to how the involvement of any other person influenced what he wrote in that application or his understanding of the questions asked. The applicant gave responses to particular questions asked of him in the visa application form which are in contrast to his claims at hearing. The Tribunal does not accept that the applicant failed to understand the meaning of the questions asked of him in the form. His initial silence in response to the Tribunal’s questions at hearing and subsequent vague referral to the assistance of a third party undermines the credibility of his claims. The Tribunal finds that the applicant set out in his protection visa application form that he did not experience harm in Fiji and that he departed Fiji for reasons unrelated to a fear of harm for the reasons he now claims. The Tribunal finds that the applicant gave evidence at hearing regarding his claims to be inconsistent with those made in his visa application form.
Fear of harm from Fijian authorities on account of protest or political activities
The applicant claims to fear harm from the military should he return to Fiji on the basis that he ‘always goes against the military’. He claims to have always protested against the miltary and to have been planning a democratic protest against the military government that took over in 2006 when he was assaulted in 2011. He further claimed to have protested at the deaths of his family member and friend at the time of the 2000 coup.
At hearing the Tribunal spoke with the applicant regarding his concerns and the political changes in Fiji. It also discussed with the applicant country information contained in the Department of Foreign Affairs and Trade Country Information Report Fiji 20 May 2022 (DFAT Report 2022) report on Fiji. In essence he asserts that a future government in Fiji could harm him as he was still against them for what they did to his cousin’s brother and best friend at school. When asked to provide more detail regarding his actions against the military, the applicant was unable to refer to anything substantial in regard to previous participation in protests, organisations or any other actions that brought him to the adverse attention of the Fijian military in the past or might do so in the future. Nor did he provide examples of actions he took or complaints he made about the military involvement in the deaths related to the 2000 coup. He did not claim to have any other particular profile or position such as would bring him to the attention of authorities now or in the future in Fiji. Indeed, he said he was a normal citizen. He gave only the broadest assertion of involvement in protests in planning protests without providing, in the Tribunal’s view, credible detail in support of those claims. Those observations stand also in respect of the applicant’s claims that he came to adverse attention of the authorities on account of his protests regarding the death of his family member and friend after the 2000 coup.
The Tribunal has taken account of the images, newspaper articles and other documents lodged by the applicant which are of a general nature regarding laws or events in Fiji and do not relate to the applicant individually (excepting a university admission offer letter which the Tribunal understands relates to the applicant’s son). In the Tribunal’s view that information does not support the claims made by applicant to have personally experienced the harm he claims occurred, including for the reasons below.
As was discussed at hearing with the applicant, information in the DFAT Report 2022 does not indicate that there are ongoing adverse consequences for those involved with or against the coups of 2000 or 2006.
People involved in coups d’état
3.40 Fiji has had four coups d’état in recent history. The leader of the 2000 coup, George Speight, is still in prison. Sitiveni Rabuka, who instigated both of the 1987 coups, later served as Prime Minister and Leader of the Opposition. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups.
3.41 People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public service is immune from prosecution as set out in the Constitution. DFAT understands from in country sources that the 2006 coup may be a sensitive topic, but is not aware of a related pattern of violence or discrimination.
The Tribunal finds that the country information referred to above is inconsistent with the applicants claims regarding harm from authorities because of participation in protests or planned protests. The Tribunal further finds that the applicant’s claims in this regard are also inconsistent with information he provided in his protection visa application form. The Tribunal finds that the applicant did not come to the adverse attention of military authorities as he claims because of his protest activities or perceived political stance. The Tribunal does not accept that he is perceived as having a particular profile such that he would be targeted in the future even should the government in Fiji change. Accordingly the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from any adverse attention from the Fijian authorities due to the events surrounding the coups, any subsequent involvement in protests by the applicant, or on account of any perception that he was politically active or against the military.
Fear of harm from members of the military or police on account of death of a young man or from family or friends of the deceased man
The applicant claims that relatives of the young man who died in a nightclub kept blaming him and that many of them were in the military. His evidence was that he was investigated by the criminal investigation unit in 2006 regarding the assault of young man in a nightclub and was assaulted by police in the attempt to force him to say that he was involved in the young man’s death. When the Tribunal noted that such circumstances appeared to have occurred 10 years prior to his departure from Fiji the applicant responded that it was somebody else (who was responsible for the death). When the Tribunal queried whether that would suggest the issue was then resolved, the applicant referred to the relatives of the young men continuing to blame him. He then referred to an event in 2011 where he was taken to an army barracks with six other friends and assaulted and tortured; he thought this occurred because they were planning to have a democratic protest against the military government that took over in 2006. It was there he claimed to have had his finger severed. He said they were released after two and a half days.
As may be apparent from the above Tribunal considers that there is some degree of conflation or intertwining of the claimed events and the reasons for such events in the applicant’s perspective. The applicant’s evidence is that he was assaulted by police in 2006 during the course of a police investigation into the death of a young man at a nightclub, although he did not provide the details as to any injuries he suffered at that time. He was not charged and nor does his evidence suggest that there has been any subsequent police interest in him on account of the young man’s death. His evidence is that the police identified somebody else as the offender. The applicant does not refer to any threats made to him after 2006 or ongoing threats or actions. He claims that in 2011 he was taken to the army barracks with six others and was assaulted with the subsequent loss of a finger. His evidence is that he believed this to have occurred because he with others was planning to have a democratic protest against the military government that took over in 2006. His evidence is not that such assault occurred in 2011 because of their vendetta against him from friends or family members of the deceased young man. The Tribunal considers that the applicant’s inability to articulate details of threats, past actions against him or some explanation as to why he would continue to be targeted after the charges were dropped undermines his claims. The Tribunal does not accept that authorities or relatives or friends of the deceased man took any adverse interest or action against the applicant once the criminal investigation was finalised.
The Tribunal has taken into account that these matters were not made in the initial application. The Tribunal does not accept the applicant’s assertions that he did not know to set out his claims in the protection visa application form because of his reliance on a friend or limited English. He has made particular claims in the written form in his own handwriting. It is not apparent why he could not have done so in his initial visa application. His claim at hearing to have been tortured by the military in Fiji in 2011 stands in stark contrast to his answers in the protection visa application, to the effect that he did not suffer harm in Fiji. It is not a complex question to understand. His responses on these matters at hearing considerably undermine the reliability of his evidence. The Tribunal finds he has contrived his evidence in relation to this claim. The Tribunal does not accept that the applicant lost a finger or was assaulted during interrogation by the military or that he has come to the adverse attention of the military or police in Fiji for the reasons he claims. The Tribunal finds that the applicant was not assaulted or tortured at a military base in 2011. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from any adverse attention from the Fijian authorities or any civilian due to any perceived involvement of the applicant with the death of a young man in 2006.
Economic and trade union claims
The applicant has referred to financial concerns largely due to the economic situation in Fiji. He asserts that the wage levels are not enough to support a family; he wishes to stay in Australia in order to undertake work and support his family in Fiji, including for his son’s university fees. In discussing these matters at hearing the applicant did not claim that he was unable to provide for his own expenses. He acknowledges his belief that he is entitled to a pension in Fiji on account of his previous employment.
The applicant also refers to assaults against trade unionists in his visa application. He did not provide further evidence on that point other than to refer to general economic hardships in Fiji. He does not claim for example that he was a trade union leader or had been harassed or targeted in the past on account of labour issues. Nor does he claim a future intention to participate in such activity. On the basis of the evidence before it the Tribunal does not accept that the applicant would face any particular significant financial hardship on return to Fiji or adverse attention on the basis of any involvement or perceived involvement with trade union activities. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his economic circumstances in Fiji or on account of any perceived involvement in trade union activities.
On the evidence before it the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason on return to Fiji.
Having regard to the above findings the Tribunal is not satisfied on the evidence that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion in Fiji in the reasonably foreseeable future. Further the Tribunal is not satisfied that there is a real chance that the applicant would be persecuted for one or more of the above reasons anywhere in Fiji. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Fiji, there is a real risk that the applicant will suffer significant harm.
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) or 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.
Patrick Francis
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.
…

[2024] AATA 2646

17 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction