2006689 (Refugee)

2006689 (Refugee) [2024] AATA 3663 (15 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006689
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Adrienne Anderson
DATE:15 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 April 2024 at 2:20pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – affiliation with opposition party and altercation with authorities during traditional ceremony – assaulted, held at gunpoint and questioned – no harm between incident and departure – late claims of forced resignation from job and run-ins with local police – mother’s political connections and activities, and application for protection in another country – applicant’s activities in Australia after visa refused accepted as genuine – trauma and mental health – country information – limited consequences of incident – changes of government and indigenous affairs policies – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (6), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
CPE15 v MIBP [2017] FCA 591
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 9 March 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 4 February 2019.
The applicant appeared before the Tribunal on 8 February and 22 February 2024 to give evidence and present arguments. The hearings were held via video link because the applicant resides in Sydney, New South Wales. At the first hearing, the Tribunal also received oral evidence from the applicant’s pastor, [Pastor A].
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Applicant’s background
The applicant is a [Age]-year-old man of indigenous Fijian ethnicity and Christian religion. He was born in Suva, Fiji. His father is deceased, and his mother and one of his brothers reside in [Country]. He has another brother in Australia, and his [siblings] reside together in Suva. He is currently single, with a [Age]-year-old child who lives with the applicant’s ex-partner in Fiji.
The applicant has a diploma in [Subject] and worked in Fiji as [an Occupation]. This work allowed him to [travel] to many parts of Australia and the Pacific. Prior to leaving Fiji, the applicant worked casually in [Work sector 1].
The applicant arrived in Australia [in] March 2019 and applied for a protection visa on 4 June 2019.
Applicant’s claims for protection
Before the Department
In his protection visa application, the applicant stated that his family was from the chiefly island of Bau and that he had been involved in an altercation with the authorities during the attempted installation of a new chief on the island in June 2018. He stated that in the early morning of the day the installation was due to take place, soldiers and police marched in and started pulling the village elders and chiefs out of their houses, and arrested some of the people who as a group were trying to protest against the treatment. The applicant was part of this group because he was going to be participating in the traditional ceremony of reinstating the chief. He was harmed and punched and held at gunpoint by the soldiers.
This incident traumatized him because when he was a young boy during the 2000 coup soldiers with guns approached him in the playground asking where one of his uncles was. They then took his uncle away at gunpoint. This incident came back to him after his treatment on Bau island and the applicant was traumatized.
In response to a question asking the applicant what he feared would happen to him on return to Fiji, he said that he will be taken in for questioning and that the police or military may be harsh or violent to him in the future because when they try and carry out the ceremony for the chief again, the police and soldiers would return.
The applicant also provided with his application form the following documents:
a.His birth certificate;
b.His Fijian voter identification card and Fijian Revenue and Customs Authority card;
c.Various educational certificates showing his [qualifications];
d.Various articles on the incident on Bau Island in June 2018;[1] and
e.Two photographs from the incident on Bau Island.
[1] Felix Chaudhary, ‘Fiji Police will comment no more on Ratu Epenisa’s removal from Bau’ Fiji Times (14 June 2018); ‘Fiji chief in title dispute files complaint against police and military’ RNZ (21 June 2018); Iva Danford, ‘Ratu Epenisa Cakobau and others released’ Fiji Village (10 June 2018); Timoci Vula, ‘DPP: No charges against security forces for Ratu Epenisa’ Fiji Times (28 March 2019); Timoci Vula, ‘Ratu Epenisa taken for questioning by Police’ Fiji Times (8 June 2018).
The applicant was not offered an interview before the Department of Home Affairs (the Department). On 9 March 2020, the departmental delegate refused to grant the visa on the basis that it did not accept the applicant had been arrested for his participation in the activities on Bau island and therefore it did not accept that he was voicing his rights at the time of the arrest and therefore that there was no political basis or other reason in s 5J(1)(a) for the harm he feared. The delegate also found that the applicant did not have a well-founded fear on the basis of his participation in a traditional ceremony in 2018, in part because he was not harmed between the ceremony in June 2018 and his departure from Fiji in March 2019.
Before the Tribunal
The applicant lodged his review application with the Tribunal on 4 April 2020. His application enclosed a statement addressed to the Department in response to the delegate’s decision, requesting that it be reconsidered. The statement was dated 3 April 2020. This statement elaborated on his involvement in the traditional ceremony and its importance to him. He said that his forefathers had protected the Vunivalu (Paramount Chief of Bau) since their arrival on Bau more than 200 years ago and that his grandfather and father had assumed traditional roles as warriors meant to protect Bau’s chief. It had been the applicant’s dream to follow in their footsteps.
In the statement, the applicant stated that he had taken almost a year to leave Fiji after the incident on Bau island because he had to save money to afford the cost of moving to Australia.
The statement added an additional claim that he had lost his job in [Work sector 2] in January 2019 when he was informed that he had to resign. He was initially told that they were reducing staff at [Employer] where he worked but was later informed by his [Work superior] that the real reason he had been forced to resign was because of his traditional role on Bau and his political affiliation with the country’s opposition party.
Within the statement, the applicant enclosed photographs of himself carrying out his [job] and with family members, bills pertaining to costs the applicant had to cover while he lived in Fiji, and links to articles on various aspects of Fijian country information, namely the human rights situation; people barred from Fiji for their political beliefs; military abuses; police abuses; army presence during the COVID-19 pandemic; and arrests of people speaking out on social media.
Prior to allocation of the application to a Tribunal member, the applicant also submitted a letter from his Australian [employer].
At hearing, the applicant gave evidence that he left Fiji because he did not feel safe there as a result of police mistreatment. The applicant had had several run-ins with the police and/or military on Bau island and at home in Suva. At hearing, the applicant elaborated on the claims in his protection visa application and letter to the Department. He also raised new claims which are discussed separately below.
In relation to his history with chiefly matters on Bau island, the applicant stated that he came from a traditional warrior clan that has always performed protective services for the paramount chief in Bau. His father, grandfather and paternal uncles had all performed roles on Bau. The applicant’s father had been actively involved in regular meetings on Bau where he and several others gathered to talk about issues such as the land on the island, leases, strategies to conserve resources, and taking care of the fishing grounds. The applicant was not invited to the meetings but would often accompany his father to the island and spend time there while his father attended the meetings. He was interested in this role and saw his family’s participation as an honour and a privilege.
In June 2018, the applicant, his father and uncles went to Bau island to take part in the traditional ceremony for the installation of the new chief Ratu Epenisa Cakobau. Only a few people were selected to participate and the applicant was honoured to have been chosen. His father had been there for the installation of a previous chief, Ratu George Cakobau. There had not been a chief in place for a long time prior to this attempted installation of Ratu Epenisa Cakobau. There had been succession issues and it was political. Ratu Epenisa was a supporter and board member of SODELPA, which was the opposition party to the current government. The other candidates for chief were FijiFirst supporters who were able to influence the government to stop the installation.
On the morning of the installation, the applicant, his family members and other clan members gathered outside in the very early morning. They were interrupted by police and military officers who arrived to stop the installation and to take away Ratu Epenisa. They said they had a warrant to detain him. Things became heated between the groups and the military officers trained their guns on the group the applicant was in. They took Ratu Epenisa by force, as well as his right-hand man and other people important to him. They used force against people to hold them back. The applicant was trying to hold his dad and uncles back from getting too involved and was caught in the confrontation. He was punched and kicked and told to move back. The applicant and other people were taken for questioning at the local police station briefly but quickly released. Ratu Epenisa and a couple of his closest advisers, as well as one of the applicant’s uncles, were taken off the island and held in custody for 2-3 days. Ratu Epenisa was told not to take further steps regarding his installation as chief.
The applicant felt victimised by this act. He and others felt that as native Fijians their rights were violated, and their voices not heard. It had been a scary encounter because if it had escalated people could have been badly hurt. Once the applicant returned to the mainland he did not experience any repercussions or consequences from the government, police force or the military as a result of his role on Bau island that day. The applicant did not attend any more meetings or gather with anyone to speak about a future installation. There was a sense of fear among all of them about doing this. The applicant did go to funerals and other events on Bau Island without issue.
The applicant stated that at the end of 2018 or early 2019 the applicant had a meeting with his [Work superior]. He had not had time [in a work location] for months and this meant that he was not getting the chance to properly do his job as [an Occupation]. The [Work superior] told the applicant that he would be better off resigning because he was not going to be favoured in this job due to his political affiliation with SODELPA and because the applicant had been talking about the events on Bau island. Because the applicant was unhappy about not being able to go [a work location] and because he felt that the job had already been lost when he was passed over for those opportunities, he left the job.
New claims at hearing
At hearing, the applicant described run-ins with local police in his neighbourhood [in] Suva which contributed to him feeling unsafe and wanting to leave Fiji. Prior to and following the events on Bau island, the applicant had been subject to various incidents involving the police. Sometimes when the applicant was walking or hanging out with friends in his neighbourhood, they were approached by the police who would question them about what they were doing and act as though they thought they were dealing drugs or had something to hide. Sometimes they were put in the back of a van and the police hit them and beat them. Other times they were taken to the police station for questioning for a short period. One of the applicant’s friends was once taken in by the police in a similar manner and had his arm broken by the police. While these incidents occurred from time to time and occurred after the applicant had been involved in the events on Bau island, the applicant stated that these run-ins with the police were not connected to it. The police did not know who he is, but rather targeted him and his friends because they were youths in a group in an affluent neighbourhood [where] most of the youth were well-educated and in general politically savvy and motivated to bring about change.
The applicant stated that in approximately 2016 or 2017, he was laid off along with many other workers from [his job] (which was run through a local company contracted by the government). While many others lost their jobs too, the applicant stated that he knew he was laid off because of who his mother is. The applicant explained that his mother ran a [company] and was well-known throughout the industry. Her company had contributed financially to the SODELPA political party and she had contacts within the party because she had been to school with some of them. She also went to campaign gatherings to show support and provide refreshments. The applicant’s mother had left Fiji to live in [Country] in approximately 2015. Because the applicant was [in a work location] at the time he did not know why she left. He now understands that she left because of her involvement in politics and that she has claimed asylum in [Country]. The applicant does not know the details of exactly why she fears to return to Fiji because they did not want to speak over the telephone about this. He does not know at what stage of the asylum process her case is in [Country]. While the applicant still talks to his mother, she has recently been diagnosed with [a medical condition] and he does not want to ask her about anything that may upset her.
When the applicant lost his job, he had spare time and began volunteering on youth campaigning with the SODELPA party. He thought that if he showed them support it might help with getting jobs from people who also supported the party, but also felt that changes were needed in Fiji. There were issues with the land, with land being given away without the consent of the traditional owners and fishing boundaries were being violated. The indigenous people were treated like nothing by the government at this time. The applicant began handing out brochures and putting up posters for the SODELPA party. He did this in areas of Suva that were known to support SODELPA and did not go to FijiFirst strongholds. He also participated in a few protests. This consisted of meeting at a park and standing under the banner of SODELPA to fight for indigenous rights. These protests were unauthorised because they could not get permits. One of the protests the applicant went to was shut down by the police peacefully. People were too scared to argue with them because the police would likely get violent.
The applicant also gave evidence at hearing that in Australia since 2022 he had participated in live [Social media] videos from his accounts on those platforms. He stated that in the lead up to the December 2022 election, he was participating in live videos with friends or online contacts and just talking about their lives and whatever other topics they felt like talking about. One day, one of his friends brought up what was happening in Fiji and changes to the health and education systems. The applicant then continued to semi-regularly participate in these discussions to try to aid Fiji’s development. At first, during the former government’s administration, the live videos rattled some viewers who told them that they could create trouble for people at home by talking that way. Since then, the applicant and his fellow live participants have instead mostly focused on topics such as how to protect resources, and since the change in government, how Fiji’s democracy can continue to develop. Sometimes, including in the applicant’s last video several weeks ago, the applicant and his friends have talked about the ongoing issue of police brutality in Fiji. In the most recent live video, the applicant discussed an incident where some youths who were socialising on their front porch after 10pm at night were were questioned, and one of the youths was injured by the police. Generally, they try to avoid naming names and speak in general terms but they have talked about suspended Fijian Police Commissioner Qiliho at times.

The applicant stated that when he does his live videos, he talks to acquaintances in [Country] and Australia, as well as some people who are still based in Fiji. Some of the people in Fiji talk freely showing their faces, others do not show their face and only participate for 5 or so minutes.
The applicant stated that usually there are between 80-110 people watching the live videos at any one time. They see comments rolling in from the audience. At times, the applicant has noticed people making negative comments that he perceives to be threats. Sometimes people say things like ‘talk like this in Fiji and see what happens to you’. This is usually when they are talking about sensitive issues like police brutality and corruption. The applicant and his friends talk afterwards and try to find out through their connections who has been making these comments and threats. They believe that they are relatives of Qiliho and other serving police officers. Some of the applicant’s friends in Fiji know that the people giving threats are related to police officers because Fiji is a small place.
On [Social media 1] the applicant’s [user name] does not show his real name; on [Social media 2] it does. The applicant gave evidence that he fears that he will be harmed on return to Fiji because when he goes out the people who have been making threats against him will recognise him as he shows his face during the live chats.
The applicant stated that the police would not be able to protect him from further threats or harm by these people that have threatened him. There are people who are still serving in the police who used to serve and might be loyal to the former government. Under the new government, the applicant has heard that the police do not seem to be responding to altercations on the street and have been seen watching people fighting or other crimes being committed on the street.
The applicant stated that he fears that the coalition government will collapse and anything could happen, including FijiFirst rising up again. The current government has not followed through on all the changes they promised and there have been incidents where MPs from one of the coalition parties have been put under investigation which could lead to the government collapsing.
At the first hearing, the Tribunal heard from the applicant’s pastor in Australia. They also knew each other in Fiji as [Pastor A] is married to the applicant’s cousin. [Pastor A] stated that the applicant has been positively involved in the church community in Australia, helping the church financially and helping with the church program. He stated that there was nothing for the applicant to go home to in Fiji because even though the situation there has been normalised, returning would be like ‘adding salt to a wound’. The previous government did not allow freedom of speech and if you were active on social media there would be a knock on the door. [Pastor A] said that at church in Australia the applicant and other youth were vocal in opposing what had been done in the past in Fiji and that the applicant was [a former pupil of a school] which was known to criticise the last government and also speak out about the current government not fulfilling its promises. From discussions with the applicant, [Pastor A] knew that the applicant was active on social media about this but had not seen his content himself.
Post-hearing
After the second hearing, on 5 March 2024, the applicant provided a photocopy of his [Employment record] showing the periods of his previous employment and posts by a Facebook account called [deleted]. One of the posts related to Fiji’s stance on Gaza. The others appear to reproduce extracts of media articles titled as follows:
a.‘Military dismissing human rights abuse allegations an “insult to victims” – Fiji human rights lawyer’ (13 February 2024);
b.‘Mystery Files Found’ (17 February 2024);
c.‘Claims are “true” – Nepotism, backbiting and mistrust an “age-old sickness” within Fiji Police’ (18 February 2024);
d.‘Woman allegedly dies inside police station’ (19 February 2024); and
e.Man arrested for allegedly stoning police station’ (19 January 2024).
On 27 March 2024, the Tribunal wrote to the applicant under s 424A of the Act, providing information for the applicant’s comment. The Tribunal provided a media report[2] which set out that suspended Police Commissioner Qiliho had been convicted of abuse of office and that Prime Minister Rabuka intended to dismiss Qiliho from his post once the conviction was recorded. The Tribunal’s letter stated that this information is relevant because it may cause the Tribunal to find that the applicant does not face a real chance of harm from the government because of his social media comments on corruption and the conduct of suspended Police Commissioner Qiliho on return to Fiji and therefore that he does not have a well-founded fear of persecution in Fiji.
[2] Mosese Raqio, Rashika Kumar, Vijay Narayan, ‘Qiliho’s position as Police Commissioner will cease once his conviction is recorded – PM’ Fiji Village (14 March 2024).
The Tribunal received a response from the applicant on 9 April 2024, discussed below. The applicant’s response contained links to a number of media and other articles[3] which the Tribunal has considered and will discuss below.
[3] Wata Shaw, ‘Remove ministers under investigation’ Fiji Times (6 April 2024); Repeka Nasiko, ‘“I have received only one complaint against A-G”’ Fiji Times (18 March 2024); Serafina Silaitoga, ‘State two under probe – Rabuka: No one is above the law’ Fiji Times (10 January 2024); ‘Rabuka concerned with investigations against Ministers’ Fijilive (2 April 2024); Litia Cava, ‘Sayed-Khaiyum files complaints against Puleiwai’ FBC News (3 April 2024); Apenisa Waqairadovu, ‘Complaints received against Mataiciwa: PM Rabuka’ FBC News (8 April 2024); ‘Why is Mataiciwa being targeted asks FLP’ FBC News (8 April 2024); ‘Sinister Plot to remove acting Election Supervisor Ana Mataiciwa. Fijileaks investigation leads to A-G Siromi Turaga, culminating in Barbara Malimali trying to drive Mataiciwa out and replace with Graham Leung’ Fijileaks (7 April 2024); Ashna Kumar and Waisea Nasokia, ’11 Cops Guilty over Missing Exhibits’ Fiji Sun (22 February 2023); Indra Singh, ‘Two officers sent on leave over missing exhibit’ FBC News (9 December 2020); ‘No vetting before Fiji ADF role’ The Australian; ‘“Unsavoury Act”: Scandal Defence wants to ignore’ The Australian; Daniel Hurst, ‘ADF chief unaware Fijian officer handed senior Australian army tole was accused of torture, parliament told’ The Guardian Australia (14 February 2024); Nacanieli Tuilevuka, ‘Waqavonovono hits out at Commander’ Fiji Times (7 February 2024); Daniela Gavshon, Human Rights Watch, ‘Vetting Failures Cast a Cloud Over Military Integrity’ (4 February 2024); ‘Torture claims rock Brisbane Army base; Defence Force chief shoulders blame’ InQueensland (14 February 2024); Iliana Biutu, ‘Fiji's High Commissioner to PNG and former RFMF commander, Mosese Tikoitoga passes away’ Fiji Village (1 January 2024); Kathy Marks, ‘Fiji military leader admits beatings, torture’ The Age (20 June 2014); ‘Police Commissioner Qiliho: “One of the military officers identified in the pictures has been serving overseas since last year.” Yes, and he has been unmasked for Fijileaks as - Sergeant Penioni Drikibau from Lomaiviti’ Fijileaks (13 July 2016); ‘Police Officers charged with alleged assault’ Fijilive (10 March 2024).
With the applicant’s response, the Tribunal also received a support letter from the applicant’s pastor, [Pastor A], which stated the applicant to be a reliable and trustworthy individual who was always willing to help others, including helping with church efforts to feed the less fortunate in their community. The letter stated that the applicant had been a responsible resident in Australia, fulfilling his tax and legal obligations, demonstrating his intention to contribute positively to Australian society.
FINDINGS AND REASONS
Country of nationality
The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which was provided to the Department and Tribunal. He has consistently stated that he is a citizen of Fiji and the Tribunal finds that he is a Fijian citizen. The Tribunal has assessed his claims against Fiji as the country of nationality and the receiving country.
Credibility
The Tribunal accepts the applicant’s claims as put at hearing. The Tribunal found the applicant was able to give convincing levels of detail in relation to the importance of his family’s chiefly responsibilities and his views about developing Fiji’s democracy.
The applicant raised claims at hearing – namely his mother’s and his own affiliation and activities for the SODELPA party – that were not included in his protection visa application. He gave evidence that it was much easier for him to explain everything aloud and that writing in English was much more difficult for him. In the circumstances and in light of the applicant’s general credibility the Tribunal has not drawn an adverse inference in relation to the credibility of the new claims.
The applicant’s other claims in connection to his activities while in Australia arose after his protection visa application was refused. For the purposes of s 5J(6) of the Act, the Tribunal has considered the applicant’s motivation for engaging in this conduct and accepts that his actions in participating in live social media chats arose from his genuine desire to have a say before the 2022 election and because the applicant was enjoying the freedom to speak in Australia that he had otherwise never experienced. The applicant spoke of the differences between Australia and Fiji in this regard and the freedom he has felt since arriving in Australia. The applicant’s activities in Australia express views he held in Fiji and which he understandably was only able to express to a lesser extent in the environment he was living in prior to his departure from Fiji under the previous government.
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Fiji or whether there is a real risk of significant harm if the applicant is removed from Australia to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims relating to the applicant’s political views and activities
The incident on Bau island
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[4]
[4] Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal accepts that the applicant’s family has historically had, and that the applicant in fact had, a role in the 2018 attempt to install Ratu Epenisa Cakobau as chief of Bau island. The Tribunal accepts that the applicant was involved in the altercation between people gathered for the ceremony and the Fijian police and military and that he was manhandled and questioned by the police.
Country information confirms the account provided by the applicant regarding this incident. Media reporting of the incident indicates that Ratu Epenisa was arrested early on June 8 prior to the installation ceremony and held at Nausori police station along with his herald the Tunitonga Ratu Jack Komaitai and Ratu Dr Joji Malani who was due to open the ceremony[5] and released three days later.[6] It was reported that the Prime Minister had endorsed the decision of the Native Lands Commissioner, Ratu Vananalagi Vesikula to cancel the ceremony because the selection process had been flawed.[7] It was also subsequently reported that Ratu Epenisa relocated his family to Australia following in the wake of the incident as a result of experiencing death threats in 2019.[8]
[5] Netani Rika, ‘Bau high chief arrested’ Islands Business (8 June 2018) < ‘Fiji Chief in title dispute released from custody’ RNZ (11 June 2018) <
[7] Netani Rika, ‘Bau high chief arrested’ Islands Business (8 June 2018) < RNZ, ‘Death threats force Fiji high chief to relocate family’ RNZ (1 July 2019) <>
However, based on the applicant’s evidence and the available country information, the Tribunal finds that, in relation to the applicant, the external effects and repercussions of this altercation were limited to the particular day and incident. That is, while the applicant may have felt the emotional and intellectual effects of being treated that way for a longer period (as discussed below), after that day he was neither a person of interest or otherwise known to the authorities nor subject to any monitoring or adverse treatment by the authorities as a result of his participation in the ceremony or the altercation. In the time he spent in Fiji after this event and prior to his departure from Fiji the applicant did not experience any threat or harm from the authorities because of the event.
While the applicant has been in Australia, the situation in relation to the Bau chiefdom has significantly evolved. Media reports indicate that Ratu Epenisa Cakobau was successfully installed as chief of Bau island in March 2023. These reports demonstrate that the ceremony was conducted without incident, with the support of the authorities.[9] Current Prime Minister Sitiveni Rabuka was in attendance.[10] The government has also recently reconvened the Fijian Great Council of Chiefs, which had been disestablished by former Prime Minister Bainimarama in 2012,[11] signalling renewed respect for indigenous affairs and the political participation of Fiji’s chiefs.
[9] Graham Everett Leung, ‘Vunivalu of Bau installed after 33 year wait’ Islands Business (28 March 2023) < Ibid.
[11] Lice Movono and Nick Sas, ‘Banned for almost two decades, Fiji's Great Council of Chiefs is back and pushing for greater influence’ ABC News (4 March 2024) < >
The Tribunal discussed the intervening installation of the chief with the applicant at hearing. The applicant indicated that he did not fear any consequences of his participation in the attempted installation in 2018 and that he knew the situation had resolved. In these circumstances, the Tribunal does not accept that the applicant faces a real chance of suffering serious harm now or in the reasonably foreseeable future in Fiji arising from the applicant’s role in the previous installation ceremony or the incident on Bau island between those gathered for the ceremony and the authorities.
The applicant’s SODELPA affiliation and social media activities
The Tribunal accepts that the applicant supported SODELPA (Social Democratic Liberty Party) while in Fiji and that prior to his departure from Fiji he undertook low-level activities in support of the party, namely attending protests and disseminating SODELPA materials. The Tribunal also accepts that the applicant may have been imputed a stance in opposition to the previous government based on where he lived in Suva and/or his mother’s financial support of the party. The Tribunal accepts that the applicant was subject to past police harassment as a result of where he lived and because he was out on the street with friends but does not find that the applicant was at any time known to the authorities as someone with a particular political profile.
The Tribunal’s enquiry is a forward-looking one and the Tribunal has considered the applicant’s risk now or in the reasonably foreseeable future on return to Fiji. As discussed with the applicant at hearing, the SODELPA party is now in government. Prime Minister Sitiveni Rabuka of the People’s Alliance (PA) leads a three-party coalition that also includes SODELPA and the National Federation Party (NFP).[12] While the Tribunal accepts that on return to Fiji the applicant may continue to show support for SODELPA in the ways he has previously, such as by helping to distribute campaign materials, given the change of government the Tribunal does not accept that such activities give rise to a real chance of suffering harm at the hands of the authorities because of his support of SODELDA. Nor does it accept, for the same reason, that a real chance exists in relation to any views in support of SODELPA imputed to him as a result of his mother’s financial support of the party or his residence in an affluent neighbourhood.
[12] Department of Foreign Affairs and Trade (DFAT), Fiji Country Brief <>
The Tribunal also accepts that the applicant has participated in several live video discussions on [Social media] and that while these discussions have not featured direct government criticism or criticism of serving politicians or heads of government departments, some of his recent discussions have touched on matters relevant to the present government such as corruption and police misconduct.
The Tribunal also accepts that the applicant has an interest in discussing how Fiji can improve itself and that if he were to return to Fiji that he would continue to undertake political activities because he has found an outlet for expression that would be difficult to stem. The Tribunal finds in this regard that the applicant would continue to participate in live videos discussing political issues of a similar nature to those he has had in Australia, discussing issues such as land preservation, improving political systems and issues facing the government of the day.
However, the Tribunal does not accept that the applicant faces a real chance of harm on this basis. In making this assessment, the Tribunal has considered that while the applicant records his live videos with his face unobscured and under his own name on one of the platforms, the videos are live, usually only attract a small audience globally of 80-110 people and that to the applicant’s knowledge these videos have not been captured as a permanent record or circulated more widely. The Tribunal also notes that some of the participants in the applicant’s videos have joined in from Fiji and, while the Tribunal accepts the applicant’s evidence that their involvement has been less extensive than his own, some of these participants have shown their faces and given their names on video. The applicant gave evidence that he was not aware of any of these participants attracting adverse attention from the government or anyone else in any form.
Further, country information indicates that political freedoms are opening up in Fiji under the current government. Political expression and association were restricted in Fiji in the past under the former government, with protest leaders and people criticising the government online being subject to investigation. High-profile figures were at times arrested under sedition or public order legislation.[13] Country information also indicates that police violence against people in custody or resisting arrest has been a long-standing problem in the Fijian police force.[14]
[13] DFAT, Country Information Report Fiji (May 2022) [3.26], [3.28]-[3.29].
[14] Ibid [5.11]-[5.16]; Freedom House, Freedom in the World 2023 - Fiji (31 August 2023); Amnesty International, Amnesty International Report 2022/23: The state of the world’s human rights (27 March 2023) 164; US Department of State Overseas Security Advisory Council, Fiji Country Security Report (14 June 2023).

However, there are strong indications that the current government is taking a different approach than previous administrations on political freedoms including freedom of speech. As discussed with the applicant at hearing, the Rabuka government has taken steps to facilitate the return of several critics of the Bainimarama (FijiFirst) government who were exiled from Fiji.[15] Some of those who were deported, threatened, or forced to leave Fiji for speaking out against the former government are being granted permission to return, and are doing so.[16]
[15] Australian Institute of International Affairs, 'Cautious Optimism for Fiji’s Coalition Government' (8 March 2023).
[16] Ibid.
The Rabuka government has also followed through with a promise to ease restraints on the media, repealing the Media Industry Development Act, which was passed under the Bainimarama government. It has been reported that this law:
established a highly interventionist government-controlled media regulator. Journalists could be jailed for two years and media outlets slapped with heavy fines if their reporting was judged to go against the national or public interest – vague terms open to broad interpretation. This encouraged self-censorship.[17]
[17] Civicus Lens, ‘Fiji: deeper democracy or continuing danger? (28 April 2023) <
Rabuka also indicated early into his administration that under his government people will be free to protest[18] and he has subsequently tried to rebuild relationships with trade unions, whose protest rights had been restricted under the previous government.[19]
[18] Peceli Navitikoko, ‘People are free to protest: PM’ FBC News (20 January 2023) <
[19] DFAT, Country Information Report Fiji (14 April 2015) [3.88]-[3.90]; DFAT, Country Information Report Fiji (27 September 2017) [3.49].
The applicant has submitted articles about police misconduct, corruption and violence against people in custody or avoiding arrest. The Tribunal accepts the content of these articles, however, much of this material relates to people or actions taken under the previous government. More recent media submitted by the applicant relates to the appointment by the Australian army of a former Fijian soldier accused of human rights abuses and the death of a victim of an assault while she was giving evidence at the police station and the Tribunal does not accept these to be relevant to the applicant’s situation. The Tribunal has placed more weight on recent information indicating that the Rabuka government is taking steps against corruption and police misconduct and has instigated actions against former officials that it alleges abused their powers in office, including charges against suspended Police Commissioner Qiliho.[20]
[20] Praneeta Prakash, 'Bainimarama and Qiliho released on bail', FBC News (14 February 2024) Mosese Raqio, Rashika Kumar, Vijay Narayan, ‘Qiliho’s position as Police Commissioner will cease once his conviction is recorded – PM’ Fiji Village (14 March 2024).
As set out above, the Tribunal put information about the action against Qiliho to the applicant for his response pursuant to 424A of the Act. The applicant’s response to the Tribunal enclosed a number of media reports detailing complaints about or investigations of a number of officials including Cabinet ministers, the Attorney-General and the Acting Supervisor of Elections. The applicant stated that Prime Minister Rabuka’s failure to remove these officials from office while the complaints are investigated demonstrates that it cannot be said that the government has come in to get rid of corruption. He gave examples of public figures in other countries stepping aside while investigations into misconduct are made.
The Tribunal has considered these articles and the applicant’s response. The Tribunal notes that the articles indicate that investigations by various relevant bodies are ongoing in all cases and that Rabuka has indicated an intention to deal with the issues when the investigations are complete. The Tribunal considers that this indicates that the government is taking steps to address corruption and abuse of office and as set out above, has given weight to recent country information detailing charges against public officials.
In his response to the 424A request, the applicant also provided articles on police misconduct, namely that police officers had been charged with assault and that exhibits to criminal cases including cash and drugs had gone missing in recent years. The Tribunal notes that the articles provided indicate that these offences have been investigated and offending police officers terminated, convicted and imprisoned. The Tribunal considers that this indicates that corruption and misconduct within the police force is being exposed and investigated.
Given the above considerations, the Tribunal does not accept that the applicant faces a real chance of serious harm on the basis of his social media activities in Australia or any continuing social media activities on return to Fiji. The Tribunal does not consider that the applicants live videos have or will come to the attention of the government. In any event, if the videos were to become known, given the above country information the Tribunal does not accept there to be a real chance that the videos would be viewed adversely by the current government. The applicant largely speaks generally about indigenous Fijian issues, but where he has criticised former or current government political issues such as police misconduct and corruption, these are issues that the current government acknowledges and has taken steps to address, such as through the charges of abuse of office of suspended Police Commissioner Qiliho.
The Tribunal has also considered – in relation to the real chance of harm arising from the applicant’s support of SODELPA as well as his social media activities – the applicant’s fears that the coalition government will dissolve and the former government return to power. The Tribunal notes that a decision-maker’s enquiry may extend beyond the present point in time and that it may be necessary to consider whether a change in circumstances that may readily be foreseen could result in a real chance of harm arising.
The Federal Court has considered that in this context the reasonably foreseeable future concept indicates that ‘the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork’ and would ‘preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to [their home country] as to bear insufficient connection to the reality of what that person may experience.’[21]
[21] CPE15 v MIBP [2017] FCA 591 at [60].
Some sources have identified rising tensions between the former and present Prime Ministers, with various charges recently being laid against former Prime Minister and FijiFirst leader Frank Bainimarama[22] and some forecasters have raised concerns about the longevity of the coalition government because of tensions between the PA and SODELPA parties and rumours in early 2023 of potential military intervention.[23]
[22] Economist Intelligence Unit, 'Fiji - In brief’ < Lice Movono, ‘Fiji's former prime minister Frank Bainimarama to spend night in police custody after abuse of office charge’ ABC News (6 February 2024).
[23] Richard Herr, ‘Stress-testing Fijian democracy in 2024’ East Asia Forum (5 February 2024); Economist Intelligence Unit, 'Fiji - In brief’ <>
The Tribunal notes however that Frank Bainimarama has resigned from parliament[24] and has been replaced as leader of the FijiFirst party.[25] Further, despite suspicions that the military would intervene in the election results or the new government’s regime, as discussed with the applicant at hearing, the military did not and have not interfered with the new government’s transition to power or their ongoing administration.[26] In response to rumours of another coup or military takeover, in July 2023 the opposition leader Inai Seruiratu was reported to have condemned ‘coup culture’ and to have stated that Fiji needed to nurture and protect its young democracy.[27] The commanders of the Republic of Fiji Military Forces, and the Fijian Navy both stated in the same month that the rule of law would be followed and that there would be no coup.[28]
[24] ‘Former Fiji PM Frank Bainimarama resigns from Parliament’ RNZ (9 March 2023) < Talebula Kate, ‘Seruiratu is the new Opposition Leader’ Fiji Times (29 March 2023) < DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
[27] Navitalai Naivalurua, ‘We condemn the coup culture – Seruiratu’ Fiji Village (26 July 2023) < Arieta Vakasukawaqa, ‘“No more coups”, Fiji’s navy commander tells nation Asia Pacific Report (30 July 2023) < >
On 1 January 2024, the Rabuka government exceeded the longest term in office for any Fijian government installed through a peaceful transfer of power.[29] DFAT advises that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[30]
[29] Richard Herr, ‘Stress-testing Fijian democracy in 2024’ East Asia Forum (5 February 2024).
[30] DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
In view of the country information, the Tribunal considers that the change of government in Fiji is stable and durable. The Tribunal also notes that the next election in Fiji is not expected until December 2026 and there is no real indication of events giving cause to doubt this timing. The elections in 2022 and those prior, held in 2018 and 2014, were also deemed fair and were orderly and free from violence.[31] In these circumstances, the Tribunal considers that the applicant’s fears of the collapse of the coalition and power reverting to FijiFirst are speculative and accordingly the consideration of any consequences to the applicant to involve guesswork. The Tribunal does not accept, in light of the change of government and the opening up of political freedoms in Fiji, that the applicant has a real chance of harm at the hands of the authorities on the basis of his SODELPA support, his mother’s past activities in support of SODELPA, any opinion imputed to him on the basis of where he lives, or his social media activities now or in the reasonably foreseeable future.
Harm from non-state actors as a result of social media activities
[31] DFAT, Country Information Report Fiji (May 2022) [2.34].
As set out above, the Tribunal accepts that the applicant has participated in live videos on social media platforms discussing past and present policy and other issues in Fiji. The Tribunal also accepts that the applicant and the others participating in the videos have received comments on these videos, such as ‘see what happens if you say this in Fiji’, from which the applicant has inferred that he would be harmed for his views if he returned to Fiji and continued to express them.
The applicant stated that he fears harm as a result at the hands of non-state agents, namely supporters or family members of former government officials, a high-ranking police officer he has named, and/or other serving police officers. His evidence was that he would be at risk from such people if they recognised his face from the videos while he was out walking on the street. The applicant did not claim that he or his family members in Fiji had received threats outside of the context of the live videos and nor did he claim that any of the people he feared would know where he lived in Fiji or would seek him out. Given the vague nature of the threats, the fact that they are directed at all of the video participants and not just the applicant, the above discussed relatively low number of viewers of the videos, the applicant’s evidence that people based in Fiji have joined in some of the discussions without repercussions even when showing their face and/or names during the live videos, and that his fear of harm relies on chance encounters with people who recognise him and disagree with his opinions, the Tribunal does not accept the applicant has a real chance of suffering serious harm now or in the reasonably foreseeable future on this basis.
His fears are also not substantiated by country information. As discussed with the applicant at hearing, DFAT advises that it is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or to FijiFirst pursuing Fijian nationals who publicly opposed them since the change of government.[32] DFAT is also not aware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government.[33]
Economic harm / denial of employment for political reasons
[32] DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
[33] Ibid.
In relation to the applicant’s fears that he would be unable to find employment in the future for political reasons, the Tribunal notes that the political party that the applicant supports, SODELPA, is one of the governing coalition parties.[34] The applicant gave evidence that he began supporting SODELPA in the first place as a means of obtaining jobs from employers who also supported SODELPA. The Tribunal therefore does not accept that the applicant could not find work within [Employer] or with another employer who supported SODELPA.
[34] Department of Foreign Affairs and Trade (DFAT), Fiji Country Brief <>
The Tribunal also finds that even if the applicant were not successful in accessing government [Work sector 2] roles, the applicant would be well-placed, given his experience in the [Work sector 2], for private [Work sector 2] jobs. He also has past experience in [Work sector 1] and there is nothing to indicate that he could not be employed in this industry again. Given the change in government and these other considerations, the Tribunal does not accept there to be a real chance that the applicant will be denied employment, access to a livelihood of any kind, or be exposed to significant economic hardship threatening his capacity to subsist on return to Fiji now or in the reasonably foreseeable future.
In this respect, the Tribunal notes that the applicant stated that he was laid off from two of his jobs in the [Work sector 2] which were contracted to [Employer] as a result of his political views. However, this occurred prior to the change in government and in those instances, the Tribunal does not accept that the applicant was deprived of all means of accessing a livelihood such as to amount serious harm for the purposes of s 5J(4) of the Act. The applicant had previously worked for private (Australian) [Work sector 2] companies and in other industries and the Tribunal finds that these options were still available to him despite his political views. The applicant was not denied access to a livelihood and did not experience significant economic hardship such that his capacity to subsist was threatened.
The Tribunal has considered the various aspects of the applicant’s political claims individually and cumulatively. When the applicant’s entire profile, his past activities and likely future activities are taken into account, the Tribunal does not accept that the applicant has a real chance of suffering serious harm at the hands of the government or members of society now or in the reasonably foreseeable future.
The ‘real risk’ test has been held to impose the same standard as the ‘real chance’ test applicable to the refugee criteria in s 36(2)(a) of the Act.[35] Given the findings above in relation to the real chance test, it follows that the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm in any form from the Fijian authorities, from members or supporters of the former government, or other members of the community.
[35] MIAC v SZQRB (2013) 210 FCR 505, per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Claim relating to past trauma
As outlined above, the applicant claimed that his treatment by the police in 2018 traumatised him because it brought back memories of events he observed as a young person during the 2006 coup. The applicant stated at hearing that he had not received any medical treatment in relation to this trauma response but that he uses his church leaders as a source of guidance and healing.
In relation to the applicant’s fear of future mental health problems on return to Fiji relating to his past trauma, the Tribunal finds that this does not fall within the refugee criteria. As discussed with the applicant at hearing, the refugee test is concerned with persecution of an applicant by other persons for a refugee protection reason. The mere impact of circumstances which an applicant may face in the future, even if arising from past persecution, would not constitute persecution for the purposes of ss 5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons. Given the findings above, the Tribunal does not accept there is a real chance that the applicant will suffer systematic and discriminatory conduct by another person or persons in the future. Further, s 36(2)(a) does not encompass the harm an applicant may suffer because of an illness arising on return to their receiving country. The complementary protection criteria similarly require significant harm to occur as the result of the acts or omissions of other persons. As such, the Tribunal does not accept there to be a real chance or a real risk of the applicant suffering harm which amounts to serious or significant harm for the purposes of s 36(2)(a) or (aa).
The Tribunal discussed with the applicant at hearing that he does not have a formal diagnosis of any mental health condition and that he is healing through his faith and reaching out to spiritual support people. Nevertheless, the Tribunal has also considered whether the applicant would be able to access treatment if he were to suffer from poor mental health on return to Fiji. According to DFAT:
The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.[36]
[36] Ibid [2.13].
The Tribunal accepts that there may be a shortage of mental health professionals in Fiji and that the standard of treatment may be better in Australia than in Fiji. However, the applicant did not claim that he would be denied treatment for any reason; he confirmed at hearing that he would be able to access counselling in Fiji and that he would continue to seek help through the church. As discussed with the applicant at hearing, the Tribunal does not accept that the applicant would be denied medical treatment for mental health issues for reasons of his race, religion, nationality, political opinion, or membership of a particular social group for the purposes of s 5J(1)(a).

The Tribunal has also considered whether any other harm may arise from the applicant experiencing trauma on return to Fiji. In this regard, it notes that stigma against mentally ill people exists in Fiji, which DFAT notes may limit family support.[37] As discussed with the applicant at hearing, not all forms of stigma or discrimination will amount to persecution. The Tribunal finds that in the applicant’s circumstances, in the absence of a diagnosed mental illness, any stigma faced by the applicant would not amount to serious or significant harm for the purposes of s 5J(4).
[37] Ibid [2.14].
In the applicant’s personal circumstances and on the basis of the available country information, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm by reason of suffering from past trauma or other mental health issue on return to Fiji now or in the reasonably foreseeable future. For the same reasons, the Tribunal does not accept there to be a real risk the applicant will suffer significant harm from any person for reasons of his mental health as a necessary and foreseeable consequence of being removed from Australia and returned to Fiji.
Other considerations
The Tribunal has considered the character and employment references that the applicant provided. The Tribunal accepts that the applicant has developed strong bonds in his local community. However, these factors are beyond the scope of the Tribunal’s assessment of whether Australia owes the applicant protection under the refugee or complementary protection criteria.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Adrienne Anderson
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 3663

15 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction