2006996 (Refugee)

2006996 (Refugee) [2024] AATA 2124 (7 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006996
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Adrienne Anderson
DATE:7 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 March 2024 at 1:59pm
CATCHWORDS
REFUGEE – protection visa – Fiji – economic harm – employment opportunities, low wages and corruption – ethnicity – Indigenous rights and land ownership and leasing – Australian citizen partner and young child – employment and community ties – no fear of harm claimed in hearing – separation from family members not significant harm – country information – land use reform – economic conditions faced by population generally – recent change of government – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B(c), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Haji Ibrahim (2000) 204 CLR 1
SZALM v MIMIA [2004] FMCA 262
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 18 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 10 June 2019.
On 25 January 2024 the applicant requested that his hearing be done via video because he would lose income if he had to travel from [City] to Melbourne given the travel time, and because his partner would be unable to attend with him. The Tribunal granted this request on 31 January 2024.
The applicant appeared before the Tribunal via videoconference on 7 February 2024 to give evidence and present arguments. The applicant’s partner, [Ms A], was present at the hearing as a support person. Prior to the hearing the applicant had indicated that he wished for the Tribunal to hear from two witnesses: [Ms A] and a friend, [Ms B]. He anticipated that they would give character references. At hearing, the applicant and [Ms A] confirmed that they did not wish for the Tribunal to take oral evidence from [Ms A] and that she was present solely as a support person. The applicant also advised that [Ms B] was unable to attend the hearing due to work commitments. The applicant confirmed that he did not wish for the Tribunal to hear evidence from this witness at a further hearing or in writing. A second hearing was held on 28 February 2024 via videoconference to allow the Tribunal to hear further evidence by the applicant.
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 (the Department), 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 from [Town 1], Fiji. The applicant was raised by his mother on [Island] and has two siblings, both of whom reside in Fiji. He is Christian.
The applicant has a de facto partner in Australia who is an Australian citizen. Together they have a [Age]-year-old [child].
In Fiji the applicant completed primary school and three years of high school. He also undertook a certificate in [Siubject]. During his schooling he resided in [Town 2] with his aunt and sold produce off her farm to earn money.
The applicant worked as [an Occupation] at two [Workplaces] in Fiji, one on [Island] and the other in [Town 2]. He also worked selling produce from his aunt’s farm while undertaking his certificate in [Subject].
The applicant arrived in Australia on a visitor (subclass 600) visa [in] March 2019 and applied for protection in June 2019. He has previously visited Australia on holiday in late 2016, and in March and December 2018.
Applicant’s claims for protection
Before the Department
In his protection visa application, the applicant stated that he left Fiji because he could not secure a permanent job due to favouritism and nepotism in workplaces, because wages in rural areas were so low that he had to resort to subsistence farming and that economic and social development in Fiji had been affected by military coups.
In response to a question asking whether the applicant had experienced harm in Fiji, the applicant stated that he had experienced psychological and emotional abuse at the hands of government authorities because of racial discrimination and attempts to cut off the rights and privileges of indigenous Fijians. He feared that he would have to return to the same situation and that he would face the same emotional abuse again.
As well as identity documents, and evidence of education and work qualifications, the applicant provided various items of country information to the Department as follows:
a.Amnesty International, Fiji: A Darker Side of Paradise (4 December 2016);
b.‘Police brutality claims embroil Fiji’ Cook Islands News (27 November 2015);
c.Repeka Nasiko, ‘Threat claims by group’ Fiji Times online (24 February 2018);
d.‘Fiji public service accused of nepotism and corruption under Rabuka government’ Radio NZ (15 September 2004);
e.Solomone Rabulu, FTUC: Lame excuse Fiji Times online (24 February 2018); and
f.Neal Conan, Pacific News Minute: Fiji Teen's Death in Police Custody Latest Allegation of Torture & Brutality Hawaii Public Radio (21 February 2017).
The applicant was not interviewed by the Department. The delegate refused to grant the visa on the basis that there is no information to suggest official discrimination against indigenous Fijians in Fiji and as such the applicant would not suffer serious or significant harm on that basis. In relation to the applicant’s economic claims, the delegate found that the applicant would not suffer economic hardship amounting to serious or significant harm.
Before the Tribunal
Prior to the allocation of the applicant’s review to a Tribunal Member, the applicant provided a number of documents to the registry, namely his Australian Driver’s License, an Australian bank statement, a payslip from his Australian employment, and three character references from his employer, his football coach and a friend. All three references referred to the strong bonds the applicant has created in the community. The reference from his employer described him as having a strong work ethic, and being reliable, kind and generous.
On 17 January 2024, in response to a pre-hearing request for information form, the applicant provided further documents, namely photographs of the applicant with his partner and [child], his [child]’s Australian birth certificate, various notices of assessment from the Australian Tax Office, [a] Superannuation statement and character references from his partner’s sister and parents, who described the applicant as a devoted partner and father, hard worker and someone who has put great effort into engaging with the community and Australian lifestyle.
At hearing, the applicant gave evidence that he came to Australia for a better life and to get higher paid employment in Australia in order to support his sister in Fiji and to help pay for family expenses such as his mother’s cancer treatment. He was intending to return to Fiji but stayed in Australia for the opportunities here. He stated he thought he would be able to find work on return to Fiji but that he does not want to have to return to Fiji to start his life there all over again after being in Australia. He also does not want to be separated from his partner and child who are Australian citizens.
The applicant stated that he did not fear any harm in Fiji and that he had heard that the situation in Fiji with the change in government was going well.
In relation to the claims in his protection visa application, the applicant explained that it was difficult to get some jobs in Fiji because people preferred to give the jobs to their relatives. There were also some issues between indigenous (iTaukei) and Indo-Fijians and Christians and Hindu people. When asked for more details regarding any difficulties with employment, the applicant explained that for Christian [Occupation]s, like him, it can be difficult to maintain a job because [Occupation]s are required to [do something] which may go against their religion. The applicant had not had this problem personally as he did not have a problem with [doing that], but this happened to someone he knew.
When asked to elaborate on any past problems or future fears arising from the applicant’s indigenous ethnicity, the applicant explained that a previous government, which came to power in 2006, had implemented policies in around 2009 which meant that his maternal uncles had had to give up some of the land they owned. This land became the communal property of the village rather than land for the applicant’s uncles to farm. The applicant did not know how much land they had to give up, but his uncles retained some land that they could farm for their own profit. The government also introduced legislation which designated the foreshore to be the property of the state. The applicant and his family were not directly impacted by this change to ownership of the foreshore but it meant that iTaukei could not protect their resources anymore. The applicant stated that he had not experienced any other unfair treatment as a result of being an indigenous Fijian.
FINDINGS AND REASONS
The Tribunal accepts the applicant’s account as provided at hearing.
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.
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.
Harm arising in relation to indigenous ethnicity
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.[1]
[1] Chan Yee Kin v MIEA (1989) 169 CLR 379.
Based on the applicant’s evidence, the Tribunal finds that in the past the applicant has not been physically harmed, denied employment or other basic rights, or discriminated against on the basis of his iTaukei ethnicity but accepts that the applicant felt that his rights as an indigenous Fijian were not respected in relation to land ownership.
In this regard, the Tribunal notes the deep significance of the land to iTaukei. It has been observed that ‘[l]and is central to Indigenous Fijians as a source of livelihood, identity and culture’[2] and that indigenous relationships to land and nature are far more complex than in western systems where land is conceived of as ‘property and commodity’ only.[3] iTaukei land is owned communally rather than individually.
[2] Glenn Finau and Satish Chand, ‘Resistance is fertile: A Bourdieusian analysis of accounting and
[3] Ibid 9.
The Tribunal also notes that the issue of land ownership and leasing arrangements have been and continue to be sensitive matters in Fiji. In Fiji, about 6% of land is freehold, able to be purchased and sold.[4] Approximately 4% is state-owned land and the remaining 89.75% is iTaukei land, belonging to communal groups, known as ‘land-owning units’, which cannot be bought or sold by anyone including individual iTaukei. This land is often leased to others through a government-coordinated leasing system, usually for a duration of 30 years. Both iTaukei and Indo-Fijians lease land from traditional owners.[5] Because most Indo-Fijians have been obliged to lease land and have had limited ability to own land, land ownership has been a contentious and politicized issue for many years.[6]
[4] iTaukei Land Trust Board, Land Ownership in Fiji (2018) < Department of Foreign Affairs and Trade (DFAT), Country Information Report Fiji (May 2022) [2.25]-[2.26].
[6] United States Department of State (USDOS), 2007 Country Reports on Human Rights Practices: Fiji (11 March 2008).
At hearing, the applicant stated that as a result of the policies of the former Bainimarama government his uncles had to relinquish some land they were using privately to the village. The applicant was not aware of the exact law or policy that led to this result but believed that there were laws or policies introduced in around 2009 that had the effect that the applicant’s family had to consult with other iTaukei how to use their own land.
At the second hearing, the Tribunal discussed country information with the applicant who agreed that this information found by the Tribunal encompassed the policies to which he was referring. Available country information indicates that:
In 2007, the Fiji government launched a national initiative to “Build a better Fiji”, and the guiding document for this national transformation was the Draft Peoples’ Charter for Change, Peace and Progress (The Charter). The Charter emphasised inclusiveness, meritocracy, unity and anti-corruption. The Charter was the guiding document for the new constitution and had 11 key pillars with pillar number 6 being: “Making More Land Available for Productive and Social Purposes”.[7]
[7] Glenn Finau and Satish Chand, ‘Resistance is fertile: A Bourdieusian analysis of accounting and
As a result, in 2010 the government created a land bank (the Land Use Unit)[8] which was a new regime for leasing customary land and a competitor to the iTaukei Land Trust Board (TLTB), the body already in place to negotiate with customary land owners and which to this point had monopolised the leasing of iTaukei land.[9] The new land bank fell under the Land Use Division of the Ministry of Lands. The Division:
invited landowning units to “deposit” their customary land in the land bank which would then actively promote the land to overseas markets and potential investors. If an investor is interested in leasing the land, the project would be brought to the landowners for consultation. The project will only be approved if more than 60% of registered landowners formally provide their consent.[10]
[8] Land Use Decree 2010 (Fiji).
[9] Matthew Dodd, ‘The Land Use Unit: A New Leasing Regime for Customary Land in Fiji (2012) 1 Journal of South Pacific Law 21, 21.
[10] Glenn Finau and Satish Chand, ‘Resistance is fertile: A Bourdieusian analysis of accounting and
When the land bank was introduced it was feared by some that land ownership would change, but this has not been the case under the legislation.[11] However, the law does mean that customary owners relinquish some control over the land and how it is used during lease terms and that these leases can be for longer periods than previously negotiated by the TLTB.[12]
[11] Matthew Dodd, ‘The Land Use Unit: A New Leasing Regime for Customary Land in Fiji (2012) 1 Journal of South Pacific Law 21, 22.
[12] Ibid 22-23.
While the applicant was unable to give clear evidence on what happened, it appears from the above information that the applicant’s family may have had to give up an existing license they held over iTaukei land and that the local landowning unit regained control over the land for one of two purposes: for it to be designated land of the LUU or for it to be reallocated for communal use. In any event, on the applicant’s evidence and on the basis of country information on land ownership in Fiji, the Tribunal does not accept that the land was directly or otherwise permanently confiscated by the government. However, the Tribunal accepts that due to new land policies, the landowning unit in the applicant’s extended family’s village made decisions which impacted the applicant’s family’s land use. The Tribunal also accepts that because land is communally owned, and has special significance to indigenous Fijians, that these policy changes and the resulting loss of land his uncles suffered may have affected him more deeply and directly than might otherwise be the case for people from other societies.

In this light, the Tribunal has considered whether this past act amounted to persecution and whether it may amount to ongoing persecution.[13] At hearing when it was put to the applicant that it did not appear to be an ongoing cause of harm, the applicant did not wish to make comment. In this regard the Tribunal notes that not all of the applicant’s maternal uncles’ land reverted to communal property and that the family, including the applicant when he was living there during his schooling, were still able to subsist from the produce of the land over which they retained control. Moreover, the land was not taken away from the local iTaukei as a whole. In these circumstances, despite the emotional effects of losing rights to use some of their land, the Tribunal does not find that this amounts to past or continuing persecution. Not all discrimination will amount to persecution[14] and the Tribunal finds that any discrimination perceived by the applicant in past government land policies, and the emotional effects of this discrimination, do not rise to the level of serious harm.
[13] SZALM v MIMIA [2004] FMCA 262 at [17]–[21].
[14] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
The Tribunal has also considered, consistently with its forward-looking test, the real chance of the applicant being dispossessed of land anew on return to Fiji now or in the reasonably foreseeable future.
The 2022 United States Department of State report on Fiji notes remaining tensions over land ownership, stating that:
Many Indo-Fijians believed their dependence on leased land constituted de facto discrimination against them. Many ethnic Fijians believed the rental formulas prescribed in national land tenure legislation discriminated against them as the resource owners.[15]
[15] USDOS, 2022 Country Reports on Human Rights Practices: Fiji (20 March 2023).
However, the Tribunal notes, as discussed with the applicant at hearing, that the 2013 Fijian constitution explicitly acknowledges and protects the iTaukei relationship to and rights in its land, stating that any land acquired by the State must be done in accordance with the law, only when necessary for a public purpose, must be duly compensated, and must revert back to iTaukei when the public purpose ceases.[16] Under the Constitution, no law can permit arbitrary deprivation of land by the State.[17]
[16] Constitution of the Republic of Fiji 2013 (Fiji), preamble and sections 27-28.
[17] Ibid, section 27.
In light of the applicant’s evidence and the other material before it, the Tribunal does not accept that the applicant would be dispossessed of any land over which he or his family members have a lease or other claim in the reasonably foreseeable future. Country information indicates that iTaukei own most of the land in Fiji and that individual indigenous Fijian people are able to lease this land from landholding units. The applicant’s immediate family owns a house, which is subject to a mortgage they are paying off. His mother’s side of the family continues to work the land they had when he was in Fiji without issue. It follows that the Tribunal does not accept the applicant faces a real chance of serious harm now or in the reasonably foreseeable future on this basis.
The Tribunal also does not accept the applicant faces a real chance of suffering any serious harm because of his indigenous ethnicity from the government or members of society. As DFAT reports:
Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect…The Government has taken significant steps to de-segregate the community in day-to-day life. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.
While some iTaukei ‘feel a sense of economic or political marginalisation’ and ‘iTaukei are more likely to experience poverty than are Indo-Fijians’,[18] overall DFAT assesses that:
iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital…there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.[19]
[18] Department of Foreign Affairs and Trade (DFAT), Country Information Report Fiji (May 2022) [3.9].
[19] Ibid [3.10].
The Tribunal does not accept that in the applicant’s circumstances this low-level societal discrimination amounts to serious harm for the purposes of s 5J(4)(b). In this regard, the Tribunal notes that while the list of instances of serious harm provided in s5J(5) of the Act is non-exhaustive, this list is instructive in relation to the threshold seriousness of the harm. As discussed with the applicant at hering, section 5J(5) provides that the following are instances of serious harm: (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. The applicant did not wish to comment on this issue.
The Tribunal has also considered the applicant’s claims that nepotism, including along racial lines, can affect employment prospects. The Tribunal finds that the applicant has not previously experienced serious harm in the form of being denied employment or access to a livelihood such that his capacity to subsist was threatened because of racial discrimination in workplaces. He has worked in the field in which he gained his qualifications and has been able to find jobs wherever he has lived in Fiji. The Tribunal finds, consistently with the applicant’s own evidence, that he would again be able to find employment in Fiji and that in the future, based on the country information and the applicant’s past experience, there is not a real chance of being denied employment, basic services or the ability to earn a livelihood such that his capacity to subsist is threatened.
For these reasons, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm in any form on the basis of his indigenous ethnicity now or in the reasonably foreseeable future on return to Fiji.
In relation to complementary protection, the Tribunal notes that section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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.[20] For the same reasons as above, the Tribunal finds that there is not a real risk the applicant will be subjected to significant harm from the Fijian authorities or from members of society on this basis as a necessary and foreseeable consequence of being removed from Australia and returned to Fiji.
[20] MIAC v SZQRB (2013) 210 FCR 505, per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Harm arising on a political basis
At hearing, the applicant stated that the previous government had been unpredictable and that its members could do anything they wanted. As a result he felt more comfortable in Australia. In discussing the issues with his family’s land (above), the applicant stated that it was the policies of the previous government that led indigenous people, including himself, to feel undermined and to not have their relationship to the land honoured. The applicant stated that he had not been otherwise personally affected by the previous government and had not been involved in any political activities in Fiji or since being in Australia.
At hearing, the applicant stated that he did not have any fear in relation to the government on return to Fiji because there was a new government in place, and he had heard that things were going well. The Tribunal therefore does not accept the applicant has a subjective fear of being harmed on a political basis if he returned to Fiji.
The Tribunal also does not accept that there is an objective, real, chance of the applicant being persecuted on this basis. Currently in Fiji, Prime Minister Sitiveni Rabuka of the People’s Alliance (PA) leads a three-party coalition that also includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP).[21] While some commentators have noted tensions between the PA and SODELPA parties[22] and rumours in early 2023 of potential military intervention, as discussed with the applicant at hearing, the transition to power was peaceful.[23] On 1 January 2024, the Rabuka government exceeded the longest term in office for any Fijian government installed through a peaceful transfer of power.[24] DFAT advises that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[25]
[21] Department of Foreign Affairs and Trade (DFAT), Fiji Country Brief < Richard Herr, ‘Stress-testing Fijian democracy in 2024’ East Asia Forum (5 February 2024); Economist Intelligence Unit, 'Fiji - In brief’ < DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
[24] Richard Herr, ‘Stress-testing Fijian democracy in 2024’ East Asia Forum (5 February 2024).
[25] DFAT, Fiji 20230621135833 - Country Information - Political Update (2 August 2023).
In the applicant’s circumstances and in light of the change of government in Fiji, the Tribunal does not accept the applicant has a real chance of suffering serious harm on a political basis now or in the reasonably foreseeable future. The Tribunal 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. In this regard the Tribunal notes that the elections in 2022 and those prior, held in 2018, were deemed fair and were orderly and free from violence.[26]
[26] DFAT, Country Information Report Fiji (May 2022) [2.34].
For the purposes of complementary protection, the Tribunal finds for the same reasons that there is not a real risk the applicant will be subjected to significant harm from the Fijian authorities on this basis as a necessary and foreseeable consequence of being removed from Australia and returned to Fiji.
Harm arising in relation to Christian religion
At hearing, the applicant spoke in general terms of one instance of which he was aware where Christians in Fiji faced problems: [Occupation]s who refused to [do something] in accordance with their religion encountered issues with employers at work. This was not a problem which affected the applicant because he [does that]. The applicant has not experienced any past harm or difficulties arising from his Christian religion in Fiji and stated that he did not fear harm on return to Fiji.
In these circumstances, the Tribunal finds that the applicant does not have a subjective fear of harm based on his religion if he were to return to Fiji.
On the basis of the applicant’s evidence and the country information before it, the Tribunal also finds that he does not face a real chance of harm on this basis now or in the reasonably foreseeable future. The DFAT report indicates that ‘[i]n practice, freedom of religion is well established in Fiji, and the Government and the people generally respect that freedom’.[27] The Tribunal did not locate any other country information indicative of religious discrimination for Christians in Fiji; rather any incidents between adherents of other religions (Hinduism and Islam)[28] and Christians have been largely targeted at Hindu places of worship or against Muslims. For example, DFAT reports that there have been some instances of vandalism and theft at Hindu places of worship, to which the authorities have responded,[29] as well as low-level societal discrimination and anti-Muslim sentiment, particularly in recent years. [30] The United States Department of State has noted one recent incident of sacrilege (theft of money and valuables) at a Methodist church in Suva, for which the perpetrators were arrested and charged. This was the only act against Christians noted in the report.[31]
[27] DFAT, Country Information Report Fiji (May 2022) [3.11].
[28] ‘About 65 per cent of Fijians are Christians, about 25 per cent are Hindu and about 6 to 7 per cent are Muslim’: DFAT, Country Information Report Fiji (May 2022) [3.12].
[29] Ibid [3.16]-[3.19].
[30] Ibid [3.22].
[31] USDOS, 2022 Country Reports on Human Rights Practices: Fiji (20 March 2023).
As discussed with the applicant at hearing, overall, in relation to Christians (of which Methodists are the largest group), DFAT assesses that:
there is no official or societal discrimination against members of the Methodist church based on their religion. Methodists worship and gather freely and the Church and its members are influential in Fijian society.[32]
[32] DFAT, Country Information Report Fiji (May 2022) [3.14].
Given these considerations, the Tribunal is not satisfied that the applicant faces a real chance of suffering serious harm on the basis of his religion now or in the reasonably foreseeable future. For the same reasons, the Tribunal finds that there is not a real risk the applicant will be subjected to significant harm from the Fijian authorities or from members of society as a necessary and foreseeable consequence of being removed from Australia and returned to Fiji.
Economic harm
As set out above, the Tribunal has considered and does not accept that the applicant will suffer economic harm rising to the level of serious harm as a result of being denied employment, basic services or other means of livelihood arising from his ethnicity.
The Tribunal has also considered whether the applicant has a real chance of suffering serious harm on the basis of economic conditions in Fiji. The applicant had claimed in his protection visa application that because wages in rural areas were so low he had had to resort to subsistence farming and that economic and social development in Fiji had been affected by military coups.
The Tribunal accepts that the applicant’s earning capacity in Fiji, particularly in rural areas, is not as high as it is in Australia. However, as discussed with the applicant at hearing, there is no evidence that any economic hardship he would face as a result of the Fijian economy arises for an essential and significant refugee protection reason in s 5(J)(1)(a) of the Act.
In relation to complementary protection, the Tribunal has considered whether the harm feared amounts to significant harm as exhaustively defined in s 36(2A) of the Act. The applicant did not suggest that he would be subject to the death penalty or torture. As discussed with the applicant at hearing, the remaining forms of significant harm in s 36(2A) require such harm to be deliberately inflicted on a person through intentional acts or omissions.
Nothing in the applicant’s evidence or other evidence before the Tribunal suggests that any economic harm feared by the applicant would arise from the intentional act or omission of the government or other entity such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal therefore finds that any economic hardship the applicant may face on return to Fiji does not fall within the definition of significant harm.
Further, the risk of harm to the applicant arising from the Fijian economy is one faced by the population of Fiji generally and not by the applicant personally. In such circumstances, s36(2B)(c) has the effect that there is taken not to be a real risk that the applicant will suffer significant harm.
As such the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm arising from his economic circumstances as a necessary and foreseeable consequence of being removed from Australia to Fiji.
Separation from family
While the Tribunal accepts the emotional impact any separation from his partner and child as a result of the applicant’s removal from Australia would have, 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 rather than the impact of circumstances following removal on an applicant. For this reason, the Tribunal is not satisfied that on this basis the applicant has a well-founded fear of persecution arising for a refugee protection reason for the purposes of s 5J of the Act.
In relation to complementary protection, as discussed with the applicant at hearing, Australian courts have held that separation from family members in Australia does not meet the definition of ‘significant harm’ in s 36(2A) of the Act. The Full Federal Court has found, by operation of the complementary protection provisions together, that relevant harm must arise in the receiving country, not the country in which protection is sought, and that the harm must follow as a consequence of removal rather than arise through the act of removal itself.[33] For these reasons, the Tribunal does not accept there to be a real risk that the applicant will be subjected to harm amounting to significant harm as defined in s 36(2A) of the Act as a necessary and foreseeable consequence of his removal from Australia to Fiji.
[33] GLD18 v MHA [2020] FCAFC 2 at [36]-[58].
Other considerations
The Tribunal has considered the articles the applicant provided to the Department and accepts their content. However, it does not accept that this content has any relevance to the applicant’s circumstances.
The Tribunal has also considered the character and employment references that the applicant provided as well as evidence of his community involvement. The Tribunal accepts that due to the passage of time, the applicant has developed strong bonds in his local community beyond his relationships with his Australian citizen partner and [child]. 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 considered the alternative criterion in s 36(2)(aa). For the above reasons, 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.
…

land reform in Fiji’ (2023) 91 Critical Perspectives on Accounting 5, citing R R Nayacakalou, Leadership in Fiji (OUP, 1975).

land reform in Fiji’ (2023) 91 Critical Perspectives on Accounting 1, 6.

[2024] AATA 2124

7 March 2024

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