2008405 (Refugee)

2008405 (Refugee) [2024] AATA 1507 (25 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2008405
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Khanh Hoang
DATE:25 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 25 January 2024 at 9:39am

CATCHWORDS
REFUGEE – Protection Visa – Fiji – political opinion – anti-government views – did not suffer any harm whether physical or otherwise – applicants do not have a profile – no official discrimination against iTaukei – was not a member of any particular political party – Treatment of iTaukei – financial and emotional harm – failed asylum-seekers – applicants have not suffered persecution in the past by reason of being a victim of Cyclone Winston– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 438, 499
Migration Regulations 1994, Schedule 2
CASES
BEG15 v MIBP [2019] HCA 3
MIAC v SZQRB [2013] FCAFC 33
SZTGM v MIBP (2017) 262 CLR 362
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 15 May 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji last arrived in Australia on [date] February 2019 on tourist visas. They applied for protection visas on 1 May 2019. Mr [A], the primary applicant (‘the applicant’) applied for protection in his own right and Ms [B] (‘the secondary applicant’), was included in the application as a member of the family unit.
The applicants appeared before the Tribunal on 5 November 2023 to give evidence and present arguments. The applicants were unrepresented in relation to the review.
The issue in this case is whether any of the applicants meet the refugee criterion and, if not, whether any are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The country of reference and identity of the applicants
In assessing the applicants’ claims, the Tribunal has considered the information in the Department’s file before it and the oral evidence that the applicants gave to the Tribunal at hearing and their documentary submissions. The Tribunal has also considered independent information regarding relevant matters and current conditions in Fiji.
The applicants claim to be citizens of Fiji. Based on copies of the applicants’ passport on the Departmental file, and in the absence of any other evidence to the contrary, the Tribunal finds Fiji to be the applicants’ country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.
The Tribunal also finds, based on a copy of their marriage certificate and evidence presented at hearing, that the applicants are married to each other and are members of the same family unit.
Non-disclosure certificate
A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s 438 of the Act.
Following the hearing, the Tribunal received a Departmental digital file on which the delegate has placed a non-disclosure certificate pursuant to s 438(1)(a) of the Act. The certificate states that it applies to ‘the source of information received on 16 May 2022 of TRIM reference number [deleted] of file number [deleted]’ disclosure of which would be contrary to the public interest because it may ‘disclose, or enable a person to ascertain the existence or identity of, a confidential source of information’.
There are two issues for the Tribunal: one is whether the certificate is a valid certificate, and the other is the nature of the information and if the information should be disclosed to the applicants.
The Tribunal finds that the certificate is valid as a public interest reason is clearly specified with sufficient detail, and the certificate includes the date and the signature of the delegate. The Tribunal is also satisfied that the material was provided with the expectation that identity of the source of information would be treated as confidential and would not be disclosed.
On the question of disclosure, the majority of the High Court in MIBP v SZMTA; CQZ15 v MIBP; BEG15 v MIBP [2019] HCA 3 held that there is an obligation of procedural fairness to disclose the fact of the non-disclosure certificate to the applicant in the review. However, a breach of that obligation will result in jurisdictional error only where the breach is material and deprives an applicant the possibility of a successful outcome.
In this case, the Tribunal has not disclosed the fact of the non-disclosure certificate, its contents, or the source of information to the applicants. The Tribunal has reviewed the materials in the document and finds that they are not relevant to this matter. In the Tribunal’s view, the information does no more than confirm that the applicants have a right to apply for protection visas in Australia with associated work rights conferred to persons pending the outcome of their protection visa applications. Accordingly, the Tribunal did not take the material into account in consideration of the issues in this case and its decision not to disclose the fact of the certificate, its contents, or the source of information has not deprived the applicants of the possibility of a successful review outcome.
Department’s decision
Protection visa application
In their application for a protection visa, the applicants stated they were seeking protection in Australia due to ‘political, economic and social instability in Fiji’ which ‘has led to an unsecure future as we continually face employment issues’. More specifically, the applicant made the following claims:
·The Fijian government regime is a dictatorship. The applicant provided some examples of this to be the introduction of ‘e-ticket’ machines, the arrest of journalists who probe illegal Chinese resort developers, and that Fijians (i-Taukei) have been removed from almost all positions of authority in all sectors throughout the Fijian workforce.
·The policies of the government affected the company that the applicant worked for, [Company 1] Ltd. The government allowed a Chinese [company] to operate next door, which resulted in loss of market share for his employer. This impacted him personally as his salary remained stagnant and his work hours ‘went beyond what was described as normal’.
·His home built in 2013 was destroyed by Cyclone Winston in February 2016 and the government did not provide him with assistance to rebuild his home or relocate him and his family. They only provided assistance to those affected areas in Fiji that elected them to power.
·If returned to Fiji, the applicants will face incarceration and persecution because they have left their work and sought protection in Australia. At his former workplace, a Muslim man was appointed CEO by the current regime to ensure that indigenous people were suppressed.
·The applicants have experienced financial hardship with the high cost of living in Fiji. This has caused them psychological and emotional harm.
·They cannot relocate to any other area of Fiji.
A delegate of the Minister for Home Affairs refused the grant of the protection visas to the applicants. The delegate accepted that the applicants are a married couple, that they had lived together in Fiji and continue to do so in Australia. However, the delegate was not satisfied that the applicant is a refugee or a person in respect of whom Australia has complementary protection obligations. The delegate considered that country information did not support the applicant’s claims. The delegate found that the applicant would not face a real chance of persecution, nor would he face any significant harm, if returned to Fiji.
As the applicant was refused protection, the delegate found that the secondary applicant was not a member of the family unit of a person who holds a protection visa and who is a person in respect to whom Australia has protection obligations.
Documentary evidence before the Tribunal
The Tribunal has before it the following relevant documentary evidence on the Department’s file:
·Copies of the primary and secondary applicant’s ID and passports
·Copy of the primary and secondary applicant’s marriage certificate
At the hearing, the applicants provided the following documentary evidence which the Tribunal has also considered:
·Bank transfer receipts from the applicant’s account stated for reasons of ‘education – local’, ‘housing-village’ and ‘natural disaster’
·News article titled ‘Villagers concerned with relocation delay’, dated 16 November 2023
·News article titled ‘Three years after Cyclone Winston hit Fiji, rebuilding efforts remain unfinished’, dated 28 August 2019
·News article titled ‘Resilience and love in action: Rebuilding after Cyclone Winston’, dated 7 November 2017
·News article titled ‘Cyclone Winston: survivor of the storm’ dated 17 August 2016
·News articles confirming that after the publication of the Fiji Bureau of Statistics’ 2019-2020 household expenditure Survey, Chief Executive Kemueli Naiqama’s contract was terminated, undated
·News articles related to the regulations directing workers in Fiji to be COVID-19 vaccinated questioning whether it is constitutional, dated 8 July 2021
·News article related to the dismissal of Solicitor General Sharvada Sharma, dated 18 February 2022
·News article related to a court order for Attorney-General Aiyaz Sayed-Khaiyum to surrender his passport, dated 16 November 2023
·News article related to the trial of Voreqe Bainimarama and Sitiveni Qiliho for tempting to pervert the course of justice and abuse of office, respectively, dated 4 December 2023
·A document from the Heritage Foundation of its assessment of Fiji’s economic freedom as part of its 2023 Index of Economic Freedom
·The Economist’s Intelligence overview of Fiji
·A document from the International Institute for Democracy and Electoral Assistance (IDDEA) on Fiji dated 26 November 2021
·News article titled ‘2020 Report on human rights in Fiji issued by the US State Dept is selective of its facts’ dated 10 April 2021
·News article titled ‘US Report on Fiji contains factual inaccuracies and they did not consult the Commission’ dated 8 April 2021
·A blog post titled ‘Who is telling the truth’ posted on 11 November 2021
·ABC News Article titled ‘Fiji police request military assistance over threats against minority groups’ after election result in Fiji
·News article titled ‘Fiji’s worst economic decline projected by RBF’
·Document titled ‘Economic Review’ by the Reserve Bank of Fiji dated November 2019, January 2021
·News article titled ‘Graduates ‘struggling’ to find jobs’
·News article titled ‘Offshore borrowing has cushioned the impact on sovereign reserves without which it would have led to a possible devaluation – Koya’, dated 31 March 2021
·News article titled ‘Job vacancies continue to decline, govt revenue down by $557 million compared to last year while govt debt is $6.86 billion’ dated 3 March 2021.
·A character reference from [Mr C], Purchasing Manager [COMPANY 2] dated 4 December 2023
·A character and support letter from [name], President of [an] Association, dated 4 December 2023
·Various photos of the applicants at various Fijian community events
·An employment/character reference and support letter for the secondary applicant from [name], Managing Director at [a company] dated 16 November 2023.
Tribunal hearing
At the commencement of the hearing, the Tribunal confirmed that the secondary applicant had no protection claims of her own, and that her claims rest on being a member of the family unit of the applicant.
The applicant’s background
The applicant is [age] years-old and he was born in [a village]. He is Christian and ethnically Fijian. His father is deceased while his mother is still alive and lives in [a] province. The applicant has three brothers and one sister, out of which he is the second youngest. He has an uncle in Australia who has resided here for over 40 years and has supported the applicant when he was studying back in Fiji. The applicant speaks to his family about once a week.
The applicant is highly educated to university level and believes that education is the key to unlocking poverty. He holds [various] degrees from [a university], as well as the completion of several short courses provided by TAFE providers.
The applicant and secondary applicant were married on [date] March [2012]. They have no children. The applicants had previously been to Australia in 2012 when the applicant’s uncle funded them a trip to Australia as a gift. The applicant also came to Australia in 2014 and in 2017 for work. The applicants last entered Australia in 2019.
The applicants arrived in Australia on a tourist visa and stayed with the applicant’s uncle. They moved to [a city] on 26 June 2019. The applicant initially got a job at [a workplace] for a few weeks, before taking up employment with [COMPANY 2] ([COMPANY 2]) on 31 July 2019. He then transferred to a position with [Company 3] in November 2022 before returning to [COMPANY 2] in July 2023.
Fijian government is a dictatorship, political instability
The applicants explained that back in Fiji in 2019, under the previous government, they had no voice and had to do what the previous Prime Minister told them, and if not, they had to face the police. They claimed that they were afraid as were many other citizens in Fiji and could not speak up. The Tribunal asked whether anything had happened to the applicants arising from the police or from living under a dictatorship as they had claimed in the past, and they responded that nothing had happened. The applicants stated that if they had voiced their opinion, something would have happened.
The Tribunal put to the applicants country information about Fiji including that its Constitution contains a bill of rights including freedom of speech, expression, assembly and association. The Tribunal explained that the country information suggests that NGOs and union movements can engage in political discussions, and that it appears that unless a person has a particularly high profile and is actively engaged in anti-government views, the country information does not suggest there to be a risk of serious or significant harm.
In response, the applicants stated that a new government had formed in 2022 and was trying to clean up what had been happening with the previous government for the last 16 years. The applicants stated that the new government is a Coalition government, not a majority government, and there is always a risk of civil unrest. The applicants stated that they provided to the Tribunal documentary evidence that the economy and political situation is unstable. The applicants stated that they were optimistic for change in Fiji, but they did not think change will happen for 10 years or more. The applicants stated that the minimum wage was $1.60 an hour and while they were lucky to earn more than that, their situation remained difficult.
Treatment of iTaukei
When asked about the claim in relation to treatment as an iTaukei, the applicant stated that when the previous government came into office they removed iTaukei people from high positions, because they wanted to control information that comes out. When asked about the current government and their approach to indigenous Fijians, the applicant stated that change will take a while.
The Tribunal put country information to the applicants that there appears to be no official discrimination of iTaukei in Fiji, and that low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.
The Tribunal asked the applicant what harm he had suffered as a result of being iTaukei. Earlier in the hearing, the applicant stated that after graduation, he worked for [a] Corporation before he resigned and joined the company [Company 1] Ltd where he worked from November 2007 to January 2019. The applicant started as a [role]. He then became [a higher role] and managed most of the company’s operation. When he had completed his studies [the] applicant went to the CEO of the company and asked what he could be offered. The company offered the applicant a higher title of [position], but with no resulting increase in pay, which the applicant considered to be unfair. He stated that if it were someone else who was not iTaukei, the CEO would have given them the title, pay and all other benefits.

The applicants did not raise any other claims in respect of being iTaukei.
Economic security
The applicants stated that they had provided documentary evidence to the Tribunal which suggested that reports of the Fiji Bureau of Statistics did not reflect what is happening on the ground in terms of the economic situation. The Tribunal stated that it will closely consider what the applicants had presented. The Tribunal put to the applicants country information which suggests that the Fijian economy has rebounded strongly post the COVID-19 pandemic and was forecasted to grow into 2024−25. The applicants responded that since the Fijian government was sending people to Australia to work under the PALM scheme, the money is not being generated from Fiji but elsewhere.
Situation of returnees
The Tribunal asked the applicant to expand on the claim that he would face harm as a returnee who has applied for asylum. The applicant stated that it was not physical harm he feared, but financial and emotional harm. The applicants stated that there is nothing in Fiji for them and that they would face stigma resulting from having applied for asylum.
Tropical Cyclone Winston
The applicants stated that after Cyclone Winston occurred the government gave them cards that were filled with some funds to start rebuilding. They stated after the cyclone destroyed their house, the applicants used whatever materials were left to help the applicant’s siblings rebuild their houses first. They claimed that the previous government only provided help first to those whose regions had voted for them. The applicants referred the Tribunal to the documentary evidence they had provided.
The Tribunal put to the applicant that the disaster prompted a large-scale local, national and international response, led by the Fijian Government with support from national and international partners, the Republic of Fiji Military Forces and foreign military assets. The applicant confirmed that they received NGO and international assistance, but the effect of the cyclone was greater than any assistance they received.
Other matters
The Tribunal has considered the character and employment references that the applicants have presented as well as evidence of their community involvement. The Tribunal accepts that due to the passage of time, the applicants have embedded themselves into their local community. However, these factors are not relevant to the assessment of whether Australia owes the applicants protection, either under the refugee or complementary protection criteria.
Country information
The Tribunal has considered the following country information in reaching its decision.
Political situation
In relation to the applicant’s claims that the previous Fijian government was a dictatorship, DFAT country information provides the following:

2.28 Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.
2.29 There are 14 provinces and one dependency (Rotuma, a group of islands about 500 kilometres north of the main Fiji islands, about halfway between Fiji and Tuvalu) as well as 13 municipal councils. Provincial councils for iTaukei residents also exist in some places, sometimes with the input of traditional village headmen. Provincial and local governments are appointed, not elected.
….
2.30 Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court.[1]
…
3.25 The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these 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.[2]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, pp 9- 10.
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, p 14.
DFAT assesses that street protesters face a low risk of official discrimination and that social media users who criticise the government also face a low risk of official discrimination. DFAT assesses that the risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, p 14.
In respect of the newly elected government, elected in November 2022, the Australian Institute of International Affairs has reported that:[4]
On 14 December 2022, Fijians went to the polls to elect the 55 members of Parliament. All of Fiji is one constituency, and parties that receive more than five percent of the vote are allocated seats in Parliament. FijiFirst, the party of Frank Bainimarama who had served as prime minister since 2007, won 26 seats – just shy of the 28 needed to secure another term in power. This left the door open for the People’s Alliance and National Federation Party, coalition partners who combined also won 26 seats. The “kingmaker” became the Social Democratic Liberal Party (SODELPA), whose three seats would decide the majority coalition. SODELPA ultimately chose to form government with the People’s Alliance-National Federation Party coalition, and on 24 December, Sitiveni Rabuka was elected prime minister. Bainimarama conceded defeat.
On the surface, little about this scenario seems out of the ordinary for a country with a parliamentary system of government. For Fiji, however, the 2022 elections and their aftermath were historic. Since it became a republic in 1970, most changes of government in Fiji have occurred via coup.
There were immediate concerns within Fiji and overseas about the vulnerability of a coalition government to a coup, fuelled in large part by new electoral laws introduced in 2021 designed to keep FijiFirst in power and Bainimarama’s reluctance to concede defeat. Now, however, Fijian officials, business leaders, citizens, foreign diplomats, and observers are cautiously optimistic that Rabuka’s coalition government will not just remain peacefully in place but that it will deliver on key campaign promises and restore integrity to Fiji’s democratic institutions.
[4] Australian Institute of International Affairs, ‘Cautious Optimism for Fiji’s Coalition Government’, 8 March 2023, available at
Country information before the Tribunal suggests that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected. According to the Lowy Institute’s report ,‘Young voices on Fiji’s new political era’, of 10 August 2023:[5]
Across the first six months of Fiji’s new political era has come transformational changes and enduring challenges. Press conferences have become punctual. Consultations are held about national policy. Legislative ambushes in parliament are no longer the norm.
Fiji’s strained relationship with The University of the South Pacific has also eased with the return of deported Vice-Chancellor Professor Pal Ahluwalia. Meanwhile Bainimarama and suspended police commissioner Sitiveni Qiliho are facing trial over allegations relating to a 2019 complaint filed by the university.
Pivotal legislative changes have also been ushered in, including the repeal of media laws introduced in 2006 that had a stifling effect on local press freedom. Cabinet also endorsed an end to the electoral name change policy that marginalised married women using their married names on voter identification.
Generational challenges are also on the agenda. During the national budget consultations, the Alliance for Future Generations, a group representing younger Fijians, emphasised the need to address youth unemployment, support young entrepreneurs, and retain skilled labour amid the emigration of Fijians seeking opportunities abroad. Their agenda encompassed decentralised and improved service delivery, focusing on sexual and reproductive health, as well as mental health for rural and maritime areas. Additionally, the Alliance called for reviewing the taxation system, measures for affordable housing, and strengthening social protection schemes, to foster sustainable development and prosperity for future generations.
Economic situation
[5] Mere Nailatikau and Lavetnalagi Seru, ‘Young voices on Fiji’s new political era’, The Interpreter (published by the Lowy Institute), 10 August 2023, available at >
DFAT information provides the following in respect of Fiji’s economic situation:[6]
The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, p 7.
More recently, the Reserve Bank of Fiji observed that the Fijian economy has rebounded strongly post the COVID-19 pandemic. In 2022, ‘given the better-than-expected rebound in tourism and related sectors, the Fijian economy is estimated to have grown by 18.6 percent, higher than the 15.6 percent previously projected … In 2024 and 2025, Fiji’s economy is forecast to return to the pre-pandemic trend and grow by 3.8 percent and 3.0 percent, respectively’.[7] Similarly, the World Bank’s Macro Poverty Outlook in October 2023 provided the following outlook:
The growth outlook is expected to reduce poverty to below pre-pandemic levels, reaching 51.4 percent in 2024 (compared to 52.6 percent in 2019). The revival of the tourism sector and remittances is expected to have a positive impact on the poorest 40 percent.[8]
Returnees
[7] Reserve Bank of Fiji, Press Release No 09 – GDP Growth for 2022 and 2023 Revised Upward, Press release 09/2023, 26 May 2023.
[8] World Bank, Macro Poverty Outlook: Fiji 2023, available at >
DFAT information provides the following assessment of individuals who return as failed asylum-seekers:

DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[9]
iTaukei
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, p 25.
DFAT also provides the following information in respect of Indigenous Fijians (iTaukei):

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. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.
Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.
iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses 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.[10]
Cyclone Winston
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, p 12.
According to UN Office for the Coordination of Humanitarian Affairs:
Tropical Cyclone Winston hit Fiji on February 20 and 21 at Category 5 force affecting an estimated 350,000 people or 40 per cent of the population in various ways. At least 31,000 houses were damaged or destroyed in affected areas, predominantly in the country’s Eastern, Northern and Western Divisions. The Fijian Government has placed the total cost of damage from the disaster at US$1.4 billion. The cyclone interrupted schooling and medical services, as well as destroying livelihoods. Forestry, fisheries and agriculture were hit especially hard. Total crop losses were recorded in some locations and areas which were already suffering under El Nino-fuelled water shortages in the country’s West have suffered further damage as a result of TC Winston. The disaster prompted a large-scale local, national and international response, led by the Fijian Government with support from national and international partners, the Republic of Fiji Military Forces and foreign military assets.[11]
FINDINGS AND REASONS
[11] UN Office for the Coordination of Humanitarian Affairs, Fiji: Tropical Cyclone Winston – Response & Flash Appeal – Final Summary, 13 June 2016.
Refugee findings
Fijian government is a dictatorship and political insecurity
The applicants claimed that the previous Fijian government was a dictatorship, and that they were afraid to voice their opinions for fear of facing police brutality. The Tribunal accepts that the applicants held such a subjective fear and that they held private anti-government views while in Fiji. However, the applicants confirmed at hearing, and the Tribunal so finds, they did not suffer any harm whether physical or otherwise because of any anti-government views. There is no evidence or information before the Tribunal to suggest that the applicants have engaged in any vocal criticism of the previous or current Fijian government while they have been in Australia, and nothing to suggest that they will engage in any vocal criticism of the previous or current government or would otherwise express their anti-government views upon return to Fiji. As such, the applicants do not have a profile which country information suggests might bring them to the attention of the government and place them at risk of harm.
The Tribunal has considered the applicant’s claim that the current Fijian government, elected in 2022, is unstable as it is not a majority government. The Tribunal has considered the country information presented by the applicants in relation to individuals who were part of the former government and the political situation in Fiji. However, the Tribunal puts more weight on more recent country information before it which suggests that the transition to a new government has so far resulted in a functioning government. Nothing on the material before the Tribunal suggests political or civil unrest now or in the reasonably foreseeable future, and the Tribunal considers this risk to be remote. The Tribunal also notes that the applicants have not articulated how any future political instability would result in any serious harm to them for one or more of the reasons in s 5J(1)(a).
For these reasons, the Tribunal finds that the applicants face no real chance of serious harm on account of their political opinion, or for any other reason arising from the political situation in Fiji more generally, including the risk of political or civil unrest, in the reasonably foreseeable future.
Treatment of iTaukei
The Tribunal accepts that the applicant was promoted to [a role] at [Company 1] Ltd but that he was not awarded a pay rise from the CEO owing to his iTaukei heritage. The Tribunal has considered whether this amounts to serious harm, noting that serious harm can include significant economic hardship that threatens a person’s capacity to subsist. The courts have found this to be a high threshold that involves a threat that challenges a person’s ability to continue to exist or remain in being.[12] While the Tribunal accepts that the applicant had to work longer hours ‘beyond normal’, the applicants also provided evidence that their wages were above the minimum wage. In the circumstances, the Tribunal does not accept that the applicant has suffered significant economic hardship, or any other harm that amounts to to serious harm, arising from his iTaukei heritage.
[12] SZIGC v MIAC [2007] FCA 1725 at [23].
The Tribunal has considered whether the applicants might face any serious harm if returned to Fiji on account of their iTaukei heritage. The Tribunal is guided by country information above — and as discussed with the applicants at hearing — that there is no official discrimination against iTaukei, and that low-level societal discrimination exists that affects most Fijians. Based on this country information, and the fact that the applicants have not articulated any claims in respect any future harm, the Tribunal finds that the applicants face no real chance of serious harm in the reasonably foreseeable future on account of their iTaukei heritage.
Treatment of returnees
The Tribunal has considered the applicants’ claims that they will face stigma or incarceration if they returned to Fiji as failed asylum-seekers. However, based on the country information the Tribunal finds that there is no real chance that the applicants will face discrimination or harm for any of the reasons in s 5J. The Tribunal accepts the country information that emigration and return to Fiji are common in Fijian society, and places weight on the DFAT assessment that it is not aware of any official or societal discrimination against failed asylum seekers.
Victims of Cyclone Winston

The Tribunal has considered the documentary evidence presented by the applicants in relation to the Fijian government’s support response for those affected by Cyclone Winston alongside the country information it has before it. The applicant claimed that the then Fijian government did not provide him with assistance to rebuild his home or relocate him and his family. The Tribunal accepts that the applicants’ house was destroyed during Cyclone Winston, and that not all areas of the country received assistance in a timely manner. However, the Tribunal finds that the then Fijian government did not discriminate against the applicants. The Tribunal finds that the government did provide some support to the applicants, and it did not intentionally withhold the provision assistance for one or more of the reasons set out in s 5J(1)(a). As such, the applicants’ claims do not involve systematic and discriminatory conduct (s 5J(4)(c)). The Tribunal finds that the applicants have not suffered persecution in the past by reason of being a victim of Cyclone Winston.
On the information before it, the Tribunal finds that the applicants face no real chance of persecution involving serious harm if they were to return to Fiji in the reasonably foreseeable future as victims of Cyclone Winston.
Economic hardship
The applicants also claim to face economic hardship if they were to return to Fiji because they do not have jobs or a home, and that this would cause them emotional and psychological harm. They have also made claims about the high cost of living in Fiji. The Tribunal has given some weight to the documentary evidence they provided in relation to Fiji’s economic situation, the way in which economic statistics are reported, and whether this reflects the situation on the ground at any given time. However, the Tribunal has decided to give greater weight to the country information it has before it in relation to the general economic situation in Fiji. The Tribunal does so because the information before it is more current, and the Tribunal has no reason to doubt its reliability.
Insofar as the applicants claim that they will suffer economic hardship upon return to Fiji, the Tribunal finds that it relates to general economic conditions in that country. Their claims do not, in the Tribunal’s view, involve serious harm to the person (s 5J(4)(b)); or systematic and discriminatory conduct (s 5J(4)(c)); or for one or more of the reasons mentioned in s 5J(1)(a). They therefore do not involve persecution, and do not give rise to Australia’s protection obligations.
Conclusion
Having considered the applicants claims individually and cumulatively, the Tribunal is not satisfied that any of the applicants are refugees under s 5H. It follows that the applicants are not persons to whom Australia owes protection obligations under s 36(2)(a).
Complementary protection findings
Having found the applicants are not refugees, the Tribunal will now consider whether they meet the criterion for complementary protection under s 36(2)(aa). That is whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that they will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Relevantly, s 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFC 33.
In this case, the applicants’ claims to complementary protection for reasons of political opinion, iTaukei heritage, and as returnees are essentially the same claims made for protection as a refugee. Given the Tribunal’s findings of fact in relation to the applicants’ refugee claims and given that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ of persecution, the Tribunal finds that these claims can no more succeed as complementary protection claims than they do as refugee claims.
The Tribunal has considered applicants’ claims to fear economic hardship if they are removed to Fiji. The applicants have not claimed, and there is no suggestion, that they will be subject to the death penalty, the arbitrary loss of life, or torture.
In relation to the other forms of significant harm, the Tribunal notes:
·The definition of ‘cruel or inhuman treatment or punishment’ states that it means an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
·Similarly, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
The Tribunal accepts, on the basis of the applicants’ evidence and country information, that they will suffer some economic hardship if removed to Fiji. However, this is the result of general economic conditions in that country. It is not because of any conduct intended to inflict severe pain or suffering, or pain or suffering that, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature. Nor is it a result of an act or omission which causes, and is intended to cause, extreme humiliation on the applicants. As such, the Tribunal finds that, while the applicants’ fears of economic hardship are genuine, they do not entail ‘significant harm’ as defined in s.36(2A).
In relation to Cyclone Winston, the Tribunal has found above that the then government did not discriminate against the applicants, as it did not intentionally withhold the provision assistance to them. As such, there was no actual, subjective intention on the part of the then government to inflict severe pain or suffering, or pain or suffering that in all the circumstances could reasonably be regarded as cruel or inhuman in nature. Nor was there an act or omission which causes, and is intended to cause, extreme humiliation on the applicants. There is not information or evidence before the Tribunal to suggest that the current government would intentionally inflict any kind of significant harm on the applicants as a necessary and foreseeable consequence of them being returned to Fiji. The Tribunal finds that the applicants’ claims do not entail ‘significant harm’ as defined in s.36(2A).
The Tribunal, having considered the totality of the applicants’ claims and circumstances, is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that they will suffer significant harm, as required by s 36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Khanh Hoang
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1507

25 January 2024

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