2007874 (Refugee)

2007874 (Refugee) [2022] AATA 5005 (5 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Pradeep Brar (MARN: 1575911)
CASE NUMBER:  2007874
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Wayne Pennell
DATE:5 December 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 December 2022 at 8:19am
CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity – indigenous Fijian – family forced to give up land – political opinion – loss of rights and fear of harm from government – vague claims and no supporting evidence provided – country information – multiple departures and returns – new claim raised at hearing – Australian citizen partner’s legal action against Fijian government – threats to partner’s lawyer and applicant – no reasonable explanation for late claim and adverse inference drawn – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Re Prasad v MIEA (1985) 6 FCR 155
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 (the delegate) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1]The delegate’s decision was provided to the applicant on 21/04/2020.
The applicant who claims to be a citizen of Fiji, applied for a protection visa.[2] The delegate refused to grant the visa[3] on the basis that the applicant was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations as outlined in the Act.[5] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there was a real risk he would suffer significant harm and he was not a person in respect of whom Australia has protection obligations as defined in the Act.[6]
[2]The applicants’ application was received by the Department of Home Affairs on 20/09/2019.
[3]The delegate’s refusal was made on 21/04/2020.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a).
[6]Migration Act 1958 (Cth), s 36(2)(aa).
The applicant filed an application with the Tribunal for a review of the delegate’s decision.[7] Accompanying that application was a copy of the delegate’s decision. At a subsequent time, the Tribunal wrote to the applicant advising him that it had considered all the material before it relating to the application, but it was unable to make a favourable decision on that information alone.[8]
[7]The applicants’ application was filed on 05/05/2020.
[8]The Tribunal advised the applicants on 23/09/2022.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.[9]He subsequently advised the Tribunal that he would appear at the review hearing to give oral evidence and present arguments.
[9]The Tribunal’s review hearing was listed for 23/11/2022.
Criteria for a protection visa
The measures for a protection visa are set out in section 36 of the Migration Act 1958 (Cth) (the Act) and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] that person 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 (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]
[19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
Country of reference and Applicant’s identity
The applicant claims to be a citizen of Fiji and he provided a copy of his passport to authenticate this claim. The applicant’s passport had been issued in Fiji and the Tribunal accepts his identity.[21] Based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[22]
[21]Passport issued [in] 2018.
[22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations.[23]
[23]Migration Act 1958 (Cth), s 36(3).
Mandatory considerations
In accordance with Ministerial Direction No. 84 made under the Act,[24] 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.
[24]Migration Act 1958 (Cth), s 499.
CONSIDERATION OF APPLICANT’S CLAIMS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[25]
[25]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]
Applicant’s claims AND THE EVIDENCE
[26]Migration Act 1958 (Cth), s 5AAA.
[27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Applicant’s claims
The applicant’s claimed that he left Fiji because the situation in Fiji is very tense; he no longer feels safe in Fiji and the current government has been a threat to him. He stresses over, and fears the current Fijian government is taking away his rights as an iTaukei (indigenous Fijian). He claimed that this means that he cannot live in Fiji because he cannot exercise his own rights as an iTaukei; and it is not safe.
He further claimed that since 2006 when the last military coup happened, the Fijian people have become suspicious of everyone else as they do not know who a government supporter is, and who is not. In contrast, now that he lives in Australia where he is able to freely criticise and discuss matters about Fiji without fearing that someone will report him to the police or military.
He also claimed that the current Fijian government is forcing his family to give up their land to the Land Bank Authority and his family and village have suffered because of the newly proposed village bylaws. The village elders who identified the boundaries did not realise that they were giving up clan land to the Land Bank Authority, and those elders have been warned by the government not to be the trouble makers.
He claimed that this has threatened his life as there is nowhere to go and no one to turn to for help in Fiji. He cannot criticise the government; he cannot go out and complain to a non-government organisation (NGO) because one of their employees could be supportive of the current government and report him.
The applicant further claimed that he cannot be protected by relocating to another part of Fiji because the main problem is the government which is a threat to him. If he moves back to his village, the whole village will be implicated as well. Therefore, he is afraid for his life and his safety if he returns to Fiji.
The Tribunal notes that when the applicant filed his application with the Tribunal to review the delegate’s decision, he provided to the Tribunal a copy of the delegate’s protection visa decision record (the delegate’s decision).[28] Contained within the delegate’s decision was a reference to an opportunity offered to the applicant for him to provide all of the details of his protection claims.[29] He did not provide any additional material to the delegate, and nor did he provide any additional to the Tribunal for the review hearing. The only material he relied upon at the review hearing was his original protection visa application and a two page statement filed with that application. The claims contained within the contents of that statement mirrored the claims he made in his original application.
[28]Dated 21/04/2020.
[29]Delegate sent a letter to the applicant on 03/10/2019.
Applicant’s circumstances
In respect to his personal circumstances, the applicant’s parents, along with two of his brothers and his sister still live in Fiji. He has another brother who lives in Sydney. The applicant is currently aged [Age] and he attained a year [Number] education. Upon leaving school, he found employment as an apprentice [Occupation 1]. After finishing his apprenticeship, he undertook studies as [an Occupation 2]. In 2010, he joined a [Workplace] as [an Occupation 3] and stayed working for that [Workplace] until 2016. He then returned to work as an [Occupation 1] until he travelled to Australia.
In 2012, the applicant met his partner (the applicant’s partner) and although she is from Fiji, in 2016 she acquired an Australian citizenship. They are engaged with two children, a daughter born in [Year] and a son born in [Year]. Both children were born in Australia. The applicant’s partner has two older children from her previous relationship, and together with their own biological children, all four children live with the applicant and his partner on the Gold Coast. The applicant has three other children to his former partner; however, all those children live in Fiji. He also said that because his partner is an Australian citizen, and their own two children were born in Australia he had considered making a partner visa application, however he found the process too expensive, and he could not afford it.
Since making his application for a protection visa, the applicant has been issued with a bridging visa which allows him to earn a living. He is currently employed as [an Occupation 4] in [an] industry on the Gold Coast.
For completeness, the Department’s information regarding the applicant’s travel from Fiji to Australia shows the after initially travelling to Australia in 2017, over the four year period up until he arrived for the final time in Australia in 2019, he had travelled backwards and forth from Fiji on five occasions. The details of those trips were outlined to the applicant during the hearing, and he accepted that it was an accurate account of the trips he had made between Fiji and Australia.[30] Careful consideration was given to those trips when assessing whether the Tribunal should accept that the applicant had a well-founded fear of returning to Fiji; and the Tribunal finds that by him returning on those occasions, this does not support the hypothesis that he exhibited or possessed any fear of returning to Fiji.
[30]Migration Act 1958 (Cth), s 424AA.

[June] 2017 Arrived in Australia from Fiji.

[August] 2017 Returned to Fiji.

[November] 2017 Arrived in Australia from Fiji.

[December] 2017 Returned to Fiji.

[February] 2018 Arrived in Australia from Fiji.

[March] 2018 Returned to Fiji.

[March] 2018 Arrived in Australia from Fiji.

[April] 2018 Returned to Fiji.

[September] 2018 Arrived in Australia from Fiji.

[May] 2019 Returned to Fiji.

[May] 2019 Arrived in Australia from Fiji.
Applicant’s claims at the time of the review hearing

At the time of the review hearing, the applicant abandoned part of his claims and introduced a new claim. He told the Tribunal that he no longer claimed that he was not safe in Fiji and that he was afraid for his life if he returned, and nor has he been warned not to be a trouble maker.
The applicant also abandoned the claim that his family and village have suffered because of the newly proposed village bylaws and the village elders who identified the boundaries did not realise that they were giving up clan land to the land bank of the government. Also abandoned were the claims that he had nowhere to go and no one to turn to for help and he cannot criticise the government or approach an NGO for fear that an NGO employee would report him; and if he moves to his village, the whole village will be implicated.
The Tribunal notes that the remaining claims relied upon by the applicant are that the current government has been a threat to him because the current situation in Fiji is very tense and he stresses and fears the current Fijian government is taking away his rights as an indigenous Fijian. He claims that this means that he cannot live in Fiji because he cannot exercise his own rights as an iTaukei; and it is not safe for him.
The applicant further claims that since 2006 when the last military coup happened, the Fijian people have become suspicious of everyone else as they do not know who a government supporter is and who is not. In contrast, now that he lives in Australia, he is able to criticise and freely discuss matters about without fearing that someone will report him to the police or military.
The Tribunal considers that those claims relate to two specific claims; the applicant’s race and the treatment of indigenous Fijians; and the political situation within Fiji since 2006 which impacts upon the applicant’s rights.
Race and treatment of indigenous Fijians
In respect to this claim, the applicant claims to be an indigenous Fijian and cannot exercise his own rights as an iTaukei; and it is not safe. The Tribunal finds that the applicant has provided no probative or tangible evidence to support this claim. The Tribunal also finds that the claim is vague, weak and tenuous and the Tribunal does not accept the claim for the following reasons.
The DFAT country information report provides that indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country and is traditionally hierarchical and patrilineal; and structured into a complex system of families, tribes, clans, and confederations of those groups.[31] iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital.[32]
[31]The DFAT Country Information Report, Fiji, dated 20/05/2022, page 12, paragraph 3.8
[32]The DFAT Country Information Report, Fiji, dated 20/05/2022, page 12, paragraph 3.10.

The DFAT report identifies that indigenous Fijians constitute nearly 60 per cent of Fiji’s population and despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government.[33]
[33]The DFAT Country Information Report, Fiji, dated 27/09/2017, page 13, paragraph 3.12.
The DFAT report outlines that all indigenous Fijians are automatically registered by law upon birth into an official Fijian register of native landowners known as the Vola ni Kawa Bula (native land register). The register also verifies access for those listed to indigenous communally owned lands and justifies titleholders within indigenous communities.[34]
[34]The DFAT Country Information Report, Fiji, dated 27/09/2017, page 10, paragraph 2.49.
The country information contained within the DFAT report provides that indigenous Fijian (iTaukei) village groups communally hold at least 87 per cent of all land as Native Land; the government holds four percent, with the remainder being freehold land held by private companies or individuals.[35] The iTaukei Land Trust Board (TLTB) holds all indigenous land in a statutory trust in accordance with the provisions of the iTaukei Land Act and the TLTB administers the land on behalf of the landowners.[36] The iTaukei Land Trust (Leases and Licenses) Regulations stipulate that any monies received by the board by the way of rents and premiums in respect of the iTaukei land shall be distributed by the board to all living members of the proprietary unit in equal proportion.[37]
[35]The DFAT Country Information Report, Fiji, dated 27/09/2017, page 10, paragraph 2.45.
[36]The DFAT Country Information Report, Fiji, dated 27/09/2017, page 10, paragraph 2.45.
[37]The DFAT Country Information Report, Fiji, dated 27/09/2017, page 10, paragraph 2.47.
The DFAT country information report further provides that the Fijian Constitution protects the communal land rights of indigenous Fijians and non-indigenous Fijians only own limited land, with virtually all Indo-Fijian farmers being required to lease land from indigenous landowners. The DFAT report goes on to provide that:
In part to protect the Fijian culture and way of life, early British governors established a ‘native administration’, which entrenched the tribal / hierarchical relationships prevalent in parts of Fiji at the end of the 19th century. Though modified and renamed, much of this administrative system continues to exist today. It consists of an iTaukei Affairs Board (the ‘guardian’ of the Fijian administrative system and other aspects of Fijian custom); an iTaukei Lands Commission (which registers the names of each member of a mataqali, or tribe); the iTaukei Land Trust Board (which manages native land leases); provincial (yasana) councils; and district (tikina) councils. Other elements of the ‘native administration’, such as the Great Council of Chiefs (Bose Levu Vakaturaga) which was once able to appoint Senators, have been disbanded by the interim government in the name of removing indigenous privilege as part of its attempts to de-racialise Fijian politics.[38]
[38]The DFAT Country Information Report, Fiji, dated 27/09/2017, page 13, paragraph 3.13.
As shown above, the overwhelming majority of government services are centralised and are provided to the Fijian communities on a non-discriminatory basis. The DFAT country information outlines that despite indigenous Fijians constituting a majority of the population (nearly 60%), some Fijians continue to feel a sense of economic marginalisation. Within remote rural and outlying island areas, generally the overwhelming majority of the population is indigenous Fijians, and they are unlikely to be the victims of societal discrimination. In many cases, there is strong societal cohesion and a strong degree of cooperation between indigenous landowners and Indo-Fijian tenants.[39]
[39]The DFAT Country Information Report, Fiji, dated 27/09/2017, page 13, paragraph 3.15.
Overall, the assessment undertaken by the DFAT reveals that although some low-level societal discrimination exists, there is no official discrimination against indigenous Fijians. There are some iTaukei that feel a sense of economic or political marginalisation, and iTaukei are more likely to experience poverty than are Indo-Fijians. However, there are rich and poor among both groups.[40]
[40]The DFAT Country Information Report, Fiji, dated 20/05/2022, page 12, paragraph 3.10.
When analysing the country information and weighing that against the applicant’s claims, the Tribunal finds that the overall assessment of the information does not support the applicant’s claims that will suffer harm within Fiji because he is an indigenous Fijian. In that regard, the Tribunal is not satisfied he will suffer harm within Fiji because he is an indigenous Fijian, and his claim is rejected.
Political situation within Fiji since 2006 – impact upon applicant’s rights
The applicant further claimed that because of the 2006 Fijian coup, his rights as a youth were taken away and his rights as an indigenous Fijian have been removed.
Similar to the applicant’s claim in regard to the treatment of indigenous Fijians, the Tribunal finds no probative or tangible evidence was provided to support this claim. The Tribunal also finds that the claim is vague, weak and tenuous and the Tribunal does not accept the claim because of the following.
When assessing the applicant’s claim, the Tribunal is aware that the DFAT country information report provides that from 1874 through to 1970, Fiji was a British Crown Colony. Fiji achieved its independence from the United Kingdom in 1970, but still remained part of the Commonwealth.[41]
[41]The DFAT Country Information Report, Fiji, dated 20/05/2022, page 6, paragraph 2.1.
In 1987, the first of the Fijian coups d'état (coups) took place. This coup resulted in the then democratically elected government being overthrown.[42] Four months later,[43] a second coup took place which ended the British monarchy and the proclamation of Fiji as a republic.[44] Both of those military actions were led by Lieutenant Colonel Sitiveni Rabuka, who was at that time third in command of the Royal Fiji Military Forces.[45]
[42]On 14/05/1987.
[43]On 25/09/1987.
[44]On 10/10/1987.
[45]Wikipedia, 1987 Fijian coup d'état; état. this coup led to the deposition of Elizabeth II as Queen of Fiji and Fiji declared a Republic.
The next coup took place in 2000 when gunmen led by George Speight forced their way into the Parliament and kidnapped the Fijian Prime Minister, several Cabinet ministers and a number of parliamentarians.[46] Within a few short weeks, another coup led by the Fijian Military Commander, Commodore Frank Bainimarama took control and appointed Ratu Josefa Iloilo as President. Subsequently,[47] the Fijian Court of Appeal ruled that the coups and interim regime were illegal, and an elected government was finally restored by the 2001 Fijian general election.[48]
[46]On 19/05/2000.
[47]In March 2001.
[48]Wikipedia, 2000 Fijian coup d'état; état.
The latest coup in Fiji took place in December 2006 which was carried out by Frank Bainimarama against the government of President Josefa Iloilo. Josefa Iloilo was removed as president, but he was later reinstated by Frank Bainimarama.[49] This coup occurred as a continuation of the pressure which had been building since the military unrest arising out of the 2000 coup and the 2005 – 2006 Fijian political crisis.[50]
[49]On 04/01/2007.
[50]Wikipedia, 2006 Fijian coup d'état; état.
In respect to the current human rights situation in Fiji, the Tribunal is aware of country information reports indicate a general improvement to the human rights situation in Fiji with the military ceasing its practice of detaining, and in many cases abusing, citizens who are deemed critics of the government.[51] The DFAT report provides that notwithstanding the relatively small size of Fiji, it has a vibrant human rights non-government organisation (NGO) linked to women’s rights, trade unions, environmental activism, religious organisations and health services.[52]
[51]United States of America Department of State 2012 Country reports on human rights practices in Fiji, dated 19/04/2013; United States of America Department of State, Bureau of Democracy, Human Rights, and Labor Country Reports on Human Rights Practices for 2013 in Fiji, dated 27/02/2014.
[52]The DFAT country information report, Fiji, dated 20/05/2022, page 16, paragraph 3.42.
Fiji’s Constitution, which came into force on 6 September 2013, provides protection against arbitrary arrest and detention and the right of any person to challenge the lawfulness of their arrest in court.[53] The Fijian constitution guarantees a freedom of speech, freedom of expression, and the freedom for its citizens in respect to assembly and association. However, each of those rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.[54] The Constitution also guarantees citizens the right to form or join a political party; to participate in a political party’s activities or recruit members on its behalf; and to campaign for a political party, candidate or cause.[55]
[53]United States Department of State Country, Bureau of Democracy, Human Rights, and Labor 2018 report on human rights practices for 2018 – Fiji, Bureau of Democracy, Human Rights, and Labor, 13/03/2019, section 1, page 3.
[54]The DFAT country information report, Fiji, dated 20/05/2022, page 14, paragraph 3.25.
[55]Constitution of the Republic of Fiji (Promulgation) Decree 2013, Government of Fiji Gazette Vol 14 No. 80, dated 06/09/2013, section 23.
In 2014, a general election was held, and military rule was removed, and there was a greater tolerance by the government of political gatherings. However, those gatherings could be the subject of government limitations so far matters relating to national security, public safety, public order, public morality, public health, and the orderly conduct of elections.[56]
[56]United States Department of State, Bureau of Democracy, Human Rights, and Labor report; Freedom in the World 2018. Fiji’, 05/10/2018, page 2; United States Department of State, Bureau of Democracy, Human Rights, and Labor Country Reports on Human Rights Practices for 2018, Fiji’, 13/03/2019, page 8.
Based on the country information before the Tribunal, the Tribunal is not satisfied that the applicant will suffer harm within Fiji because of the coup which took place over 16 years ago in 2006 and his claim is rejected.
Careful consideration has been given to the country information available to the Tribunal, and when that information is weighed against the applicant’s claims, the Tribunal finds that the overall assessment of the country information does not support the applicant’s claims that because of the current political situation in Fiji, his rights have been removed. In that regard, the Tribunal is not satisfied he will suffer harm within Fiji because he is an indigenous Fijian, and his claim is rejected.
Applicant’s new claim
The applicant introduced a new claim at the time of the review hearing. He told the Tribunal that in 2013, he started a relationship with his current partner. At that time, she was going through a court case in Fiji where she had taken legal action against the Fiji government, and he was helping her with that case. His new claim related to him being threatened because he had helped her.
His partner’s court case was about a [business] which she previously owned. The [business] had operated for 15 years and [produced products] which were imported to Australia. Before his partner had acquired it, the [business] was previously owned by her former husband and when she separated from him, he relocated to Australian, and the ownership of the [business] was transferred to her.
The Tribunal was told that there had been tax implications involving the company which operated the [business], and the Fijian government had acquired the [business]. The applicant’s partner took the government to court in an attempt to regain control of the [business]. The court found in favour of the government and the applicant claimed that his partner’s lawyer had been threatened by the government to drop the case or he (the lawyer) would lose his practising certificate. The applicant was also threatened because he helped her.
In regard to an assessment of the new claim raised by the applicant, the Act provides that if an applicant raises new claims or presents new evidence that was not raised before or presented to the delegate when the delegate’s decision was made, then those circumstances require the Tribunal to draw an adverse inference about the new claims or evidence if the Tribunal is satisfied that the applicant does not have reasonable explanation why the claim was not made, or the evidence not presented before the delegate’s decision was made.
The timeline of the process involved with the applicant’s application is that he originally filed his protection visa application with the Department on 20 September 2019, with an invitation extended to him by the delegate on 3 October 2019 that he could provide additional information.
Ultimately, the matter was before the Tribunal on 23 November 2022 for a hearing and it was only then that the applicant’s new claim was raised, which is a period of over three years after his filed his original protection visa application. The only reasonable explanation relied upon by the applicant for not raising the new claim with the delegate was that he had previously been represented, and then he engaged his current representative. His current representative did not assist him during the review hearing process.
When consideration is given to the timespan between when his original application was filed and when he raised the new claim at the review hearing, the Tribunal is not satisfied that he has a reasonable excuse why the new claim was not raised at an earlier time. Nor does the Tribunal accept that there is any evidence that because he had changed his representation, that this in any way falls within the description of a reasonable explanation. Therefore, the Tribunal considers that the only reasonable conclusion to draw is to consider that an adverse inference about the veracity of the new claim and the claim is rejected.
Refugee findings
The Tribunal has carefully considered the applicant’s claims that he has a well-founded fear that because he is an indigenous Fijian, if he returned to Fiji he would suffer harm, and it is not safe for him as he cannot exercise his own rights as an indigenous Fijian. The applicant also claimed that because of the 2006 Fijian coup, his rights as a youth were taken away and his rights as an indigenous Fijian have been removed. The Tribunal finds that the applicant has provided no probative or tangible evidence to support his claims. The Tribunal also finds that the claims are vague, weak and tenuous.
Earlier in these reasons the Tribunal outlined its findings and rejected the applicant’s claims. Having considered all the facts, features and circumstances of this matter, along with the contents of the information provided in the applicant’s evidence, the Tribunal finds that there is not a real chance that the applicant would suffer serious harm because of any of the alleged claims.
The Tribunal also finds that based on the facts, features and circumstances of the applicant’s case, he is not likely to be persecuted or harmed for any of the claims he made; and he does not face a real chance of serious harm.
Complementary protection considerations
The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Fiji, there is a real risk that he will suffer significant harm.
Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[57] the Tribunal has considered the alternative criterion.[58] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Fiji, there is a real risk that he will suffer significant harm as it is defined in the Act.[59]
[57]Migration Act 1958 (Cth), s 36(2)(a).
[58]Migration Act 1958 (Cth), s 36(2)(aa).
[59]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Fiji. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[60]
[60]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The Tribunal notes the applicant claims that he has a well-founded fear that if he returned to Fiji, he would suffer harm because he is an indigenous Fijian, and it is not safe for him as he cannot exercise his own rights as an indigenous Fijian; and since the 2006 Fijian coup, his rights as an indigenous Fijian have been removed. Earlier in these reasons, the Tribunal discussed the applicant’s claims that he possessed a well-founded fear of persecution if he returned to Fiji, and this claim has been rejected. The Tribunal does not accept that he will face a real risk of significant harm in Fiji for the reasons he claims.
Having considered all the applicant’s claims, individually and cumulatively, along with the evidence and submissions, the Tribunal does not accept that if he returned to Fiji now or in the reasonably foreseeable future he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.
Conclusion: refugee criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
Conclusion: complementary protection criterion
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, he will be exposed to a real risk of suffering significant harm.
Overall conclusion

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 section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in section 36(2) of the Act.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior Member

Attachment - Extract from Migration Act 1958 (Cth)
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.
…

[2022] AATA 5005

5 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Standing

[June] 2017	Arrived in Australia from Fiji.
[August] 2017	Returned to Fiji.
[November] 2017	Arrived in Australia from Fiji.
[December] 2017	Returned to Fiji.
[February] 2018	Arrived in Australia from Fiji.
[March] 2018	Returned to Fiji.
[March] 2018	Arrived in Australia from Fiji.
[April] 2018	Returned to Fiji.
[September] 2018	Arrived in Australia from Fiji.
[May] 2019	Returned to Fiji.
[May] 2019	Arrived in Australia from Fiji.