2008595 (Refugee)

2008595 (Refugee) [2023] AATA 4820 (18 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr John Benjamin Maurice Vevers
CASE NUMBER:  2008595
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Don Smyth
DATE:18 December 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 December 2023 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – Fiji – intimidation by military – arrested and tortured – political opinion – local youth advocate for then opposition party – trustee for traditional land acquired for development – consent to decision without hearing – undetailed claims and inconsistent evidence – purported official document undated and provenance unexplained – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant claims to be a citizen of Fiji and has provided a Fijian passport. I accept that he is a Fijian citizen.
According to information provided in his Protection visa application, the applicant was born in Suva in [year]. He married in Fiji in April 1999.
The applicant described his ethnicity as South Pacific Islander and his religion as Christian. He indicated in his application that he had lived at a single address in [Village 1], Suva Rewa from 2000 to September 2018. He gave details of his education, indicating that he had finished high school in [Village 1] in 1989. He outlined details of his employment history, including work as a [Occupation 1], [Occupation 2] and [Occupation 3].
The applicant indicated that he had entered Australia as a visitor [in] September 2018. He applied for a Protection visa on 3 December 2018. On 19 May 2020, a delegate of the Minister for Immigration and Border Protection made a decision to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
By letter of 2 November 2023, the Tribunal invited the applicant to attend a hearing on 29 November 2023. The applicant’s representative submitted a Response to Hearing Invitation form on 7 November 2023, indicating that the applicant would take part in the scheduled hearing.
On 21 November 2023, the applicant’s representative wrote to the Tribunal stating that they were awaiting instructions from the applicant in relation to the scheduled hearing before the Tribunal as well as pre-hearing submissions. The representative requested an extension of time for pre-hearing submissions to 24 November 2023 and this extension was granted. On 22 November 2023, the applicant’s representative wrote to the Tribunal stating that the review applicant had instructed that he did not wish to attend the scheduled hearing before the Tribunal on 29 November 2023 and to request for the Tribunal to make a decision on the papers before it. The applicant did not in fact attend the hearing scheduled for 29 November 2023.
I am satisfied that the applicant has consented to the Tribunal deciding the review without his appearing before it and that s 425(2)(b) of the Act is applicable. The applicant did not attend the scheduled hearing and indicated that he did not wish to attend the hearing. He has instructed his representative to request the Tribunal to make a decision on the papers before it. In all the circumstances, I have decided that it is appropriate to make a decision on the review based on the documentary evidence before me.
SUMMARY OF CLAIMS AND EVIDENCE
In his Protection visa application, the applicant provided details of his various family members. He indicated that he was in contact with his wife and children to ask about their safety.
The applicant made written claims in support of his application. In summary, these were as follows:
·     He left to escape intimidation by the military. He was ‘one of their tortured victim in 2008’ when he was arrested at gunpoint at [a checkpoint]. He was taken to the army camp and tortured for about 4 hours before being forced to walk home. It was suspected that the company ute he was driving was carrying weapons.
·     The threats continued until 2018 when he involved himself with SODELPA as an advocate for the youths in their area. His father, [Mr A], was now the head of [their clan]. Their land had been taken and sold by the Fiji First Government without their knowledge or consent.
·     He was wanted from time to time again. The applicant stated that it could happen again or even worse. At times he took their threats lightly until the most recent arrests by the military and police in villages ‘where even our paramount chief was not spared’.
·     The applicant asserted a belief that the 2018 election was rigged. He stated that SODELPA had taken the matter to court. The applicant stated that they believed they had the proof but questioned whether the military and the police could be neutral or would take sides and stand with the government. The applicant expressed concern about the risk of another coup and that his culture, race and religion were under threat.
·     The applicant expressed a fear for his life. He stated that their land, their rights, their religion and their race were all in danger. People were disappearing from everywhere, crime had grown to the worst level ever, children and women were abused, and unemployment was at the worst level in history.
·     He fought for their land which was under threat from the Fiji First Government. He was warned to keep his mouth shut and not to cause any disrespect towards the Fiji First Government or say anything bad about Bainimaraima or Khaiyum or else he would be taken in by the military and tortured worse than before.
·     His father, the leader of the clan, was concerned for the safety of the applicant and his family, and advised him to seek refuge elsewhere. He came to Australia for his safety. He came before then went back thinking everything would be better when they changed government. Unfortunately the election was rigged by the Fiji First Government backed by the military.
·     With regard to who he thought would harm or mistreat him, the applicant referred to having been taken by the military in 2008. He stated that, because of his position as a trustee to [Trust 1] where he had a lot to say on the use or lease of their land, it was possible that he could be a target should trouble arise. He claimed to fear for the lives of himself and his family members.
·     The applicant described politics in Fiji as being at boiling point. He stated that the Fiji First Government was selling off their land and there was nothing much anyone could say or do as the military and police were backing them up. He had always stood up for what he believed in but had been shut down by the military. Should the courts decide that the 2018 general election had been rigged and remove the Fiji First Government, there would be a civil war in Fiji.
·     The applicant stated that his village was only [number] kilometres from Suva and the Fiji First government planned ‘to move us for the city’. He said that they as land owners were totally opposed.
·     The applicant stated that the military and police had given their word to support whatever party came to power even though they knew full well that the Fiji First Government would rig the election. The military forces and police were all forced to vote for Fiji First and did so to protect their employment as they had been threatened by Bainimarama. The applicant stated that they were more scared of going to the police than facing their own problems. He stated that Fiji was not safe any more. He referred to many reports of police brutality and said the government was not doing enough to stop the problems but encouraged them. The Fiji Police Commissioner was a military commander and an active military man.
The applicant also appeared to indicate in the application that he still had military service obligations in Fiji. He stated that the Fiji First Government led by Frank Bainimarama had again taken over the government. He stated that they believed the 2018 election had been rigged.
The applicant submitted a number of documents in support of the application, including the following:
·     An undated document headed ‘Fiji Police Headquarters’ and relating to an incident [in] June 2008. The report stated that the applicant had been taken in for questioning at [the] Police Post for ‘bridging the Curfew hours’ during the unstable period of government in Fiji. He had then been transferred to Fiji Military Force Barracks for further questioning. The report referred to the applicant’s role with [Company 2]. The report stated that the Fiji Military Force suspected that the applicant could ‘be liable in transporting the weapon in the company’. The report purports to be signed by an IA Investigator. It provides an email address at yahoo.com.fj for the purposes of further inquiries.
·     A copy of a lease agreement, dated [October] 2015, in relation to a [size] ha property in Suva. The agreement is between the iTaukei Land Trust Bord in Suva and [Company 1]. It describes the land as being owned by ‘the [Group 1]’. [Mr B], [Position 1] of the iTaukei Land Trust Board has signed the lease on behalf of the lessor. The applicant described [Company 1] as a [Country 1] company. He stated that the land owners had not been consulted prior to the lease by the current Government.
·     Further documentation showing maps of the relevant land as well as an aerial photograph showing what is described as the location of the applicant’s residence (described as being in [Location 1]) as at 4 April 2014.
·     A letter from the applicant’s father, [Mr A], the clan’s high chief. The letter is dated 20 January 2019. The applicant’s father stated that the applicant lived in [Location 1], just a few kilometres from Suva. He had his own house built on a piece of land owned by their clan. The land had been reserved by the village elders for housing only but the Fijian Government did not recognise it as such and had sold the piece of land to a [Country 1] company named [Company 1]. This had left the applicant in a very bad situation. The letter appeared to indicate that the applicant had had to vacate his house. The applicant’s father said that [their village] was the only place that was ‘being left out for development’ and was ‘being overcrowded with the member of my clan’. Most of their vacant land was being given out by the Fiji Government to business people for business purposes. The applicant’s father stated that the applicant had been employed by [Company 2] for 10 or 15 years and had been ‘left unemployed for almost 10 years from 2008 as a result of the Fiji Military Force Coup’.
·     A document showing signatories for [Trust 1] (including the applicant), and a document headed ‘[Trust 1]’ and also signed by the applicant (among other signatories). The applicant referred to the documentation as ‘Evidence of members of Trustees for our Land owners Trust known as [Trust 1]’.
·     A letter of support from the pastor of [Church 1].
·     A letter, dated 17 September 2019, from the applicant’s Australian employer, [Company 3].
·     Birth certificates for the applicant’s children.
·     A copy of the applicant’s Curriculum Vitae, which outlines the applicant’s education, skills experience and work history, including in the fields of [Occupation 1], [Occupation 2] and [Occupation 3]. It indicates, for instance, that he worked in [Occupation 1] for [Company 4] from 2012 to 2016 and for [Company 2] as [an Occupation 2] from 2005 to 2012. Attached to the CV is a document related to the applicant’s completion of a Defensive Driving course.
·     Extracts from the applicant’s Fijian passport.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself 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 of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70, Randhawa v MILGEA (1994) 52 FCR 437 at 451).
The applicant made a number of claims in his Protection visa application. The applicant has asked that the Tribunal make a decision on the papers before me and I have not had an opportunity to explore the claims with the applicant at a hearing. I have made a decision on the evidence before me.
I note that the applicant has claimed that there was an incident in 2008 in which he was arrested at gunpoint at a checkpoint, taken to the army camp, tortured for about 4 hours and forced to walk home for about 12 kilometres. He stated that it was suspected that the company ute he was driving was carrying weapons. He has provided an undated document which is headed ‘Fiji Police Headquarters’ and purports to be from [Mr C], an ‘IA Investigator’. The document is undated and invites further inquiry to be made to a yahoo.com.fj email address. The letter refers to the applicant having been taken in for questioning at [the] Police Post for ‘bridging’ curfew hours, to his being transferred to Fiji Military Force Barracks for further questioning and to the Fiji Military Force suspecting that he could be liable in transporting weapons. In submitting this document to the Department, the applicant provided a covering letter which described the document simply as ‘Police Report on 23 June 2008’. The applicant has not detailed when or in what circumstances he obtained the document. The author of the document has not detailed the basis of his knowledge of events such as the questioning at the military barracks or of how he might be aware that the Fiji military force suspected the applicant of transporting weapons. The applicant has not provided any explanation in this regard.
The applicant has provided little detail in relation to the claimed incident in 2008. He has not detailed, for instance, what he was doing at the time when he claims that he was arrested, the precise nature of the questioning to which he claims to have been subjected or the nature of the torture he claims to have experienced. He did not detail what led him to believe that there was a suspicion that the company ute he was driving was carrying weapons. He has claimed that threats continued until 2018 and that he was warned from time to time that it could happen again or even worse. However, he has not provided detail in relation to these threats or warnings such as how and by whom they were delivered, or in what circumstances they occurred. I note that the letter from the applicant’s father stated that the applicant was left unemployed for almost 10 years from 2008 as a result of the Fiji military coup. This contradicts information in the applicant’s protection visa application to the effect that he worked for [Company 2] from February 2005 to July 2012 and for [Company 4] from August 2012 to September 2018. On the available information, I do not accept as reliable the statement from the applicant’s father to the effect that the applicant was left unemployed for almost 10 years from 2008.
As noted above, the document from [Mr C] is undated. There is no explanation for the absence of such a fundamental feature in what purports to be an official document. The applicant has not detailed when or in what circumstances the document was issued or obtained. The author of the document has not detailed the basis of his knowledge of events such as the questioning at the military barracks or of how he might be aware that the Fiji military force suspected the applicant of transporting weapons. On the basis of the evidence before me, I do not accept that the document provides a reliable account of events in 2008 and I give it no weight. There is otherwise very limited detail as to the claimed events of 2008. I am not satisfied on the evidence before me that the applicant was arrested at gunpoint at a checkpoint, taken to an army camp, tortured, forced to walk home or otherwise harmed in 2008, or that he was in any way suspected of carrying weapons.

As noted above, although the applicant claimed that threats continued until 2018 and that he received warnings, he has not provided detail in relation to these claimed threats and warnings. I am not satisfied on the information before me that he received threats or warnings from the police, the military or anyone else in Fiji. While the applicant has referred to arrests by the military and police in villages ‘where even our paramount chief was not spared’, there is a lack of detail as to these claimed incidents. I am not satisfied on the evidence before me that the applicant, or his family, in any way experienced or suffered arrests, threats, warnings or other targeting from the military or police.
The applicant has also made claims with respect to land being taken and sold or leased by the Fiji First Government without their knowledge or consent. He said that the Fiji First government was selling off their land and there was nothing much anyone could say or do as the military and police were backing them up. He has said that his village was only [number] kilometres from Suva and that the Fiji First government planned to move them to the city. He said that they as landowners were totally opposed.
On 18 April 2019, the applicant submitted to the Department documentation which appears to relate to a lease over a piece of land. He provided the following description of the documentation: ‘Copy of Lease by the [Company 1], We land owners were not consulted prior to lease by the current Government’. The documentation also included maps and a document headed ‘Location of [the applicant]’s Home, [Location 1]’. This document is an aerial photograph with an arrow pointing to a property and a caption ‘[The applicant]’s Residence As At 4/04/2014’. The applicant has provided little detail in relation to this claimed residence such as how long he lived at the address and with whom. Other than saying that the landowners were not consulted prior to lease by the Government, the applicant has provided little detail concerning the exact significance of these documents. I do note that the land shown in the lease agreement is marked as being on the Suva-[Town] highway while the residence marked as [the applicant]’s residence as at 4/04/2014 is also on the road to Suva. On the documentation before me, it is not possible to identify precisely how the property marked as the residence relates to the lot which is identified as the subject of the lease agreement.
The lease agreement relates to a [number] hectare lot of land identified as ‘[Location 2] (Part of)’ in Suva, Rewa. The lease agreement identifies the iTaukei Land Trust Board as lessor and [Company 1] as lessee. It describes the land as being owned by the [Group 1]. The lease document is dated 28 October 2015 and appears to provide for annual rent in relation to the relevant land.
The Australian Department of Foreign Affairs and Trade (DFAT) has described land rights in Fiji as controversial, noting that the colonial government allocated ancestral land to traditional owners who now own the vast majority of land in Fiji. DFAT reported that about 90 per cent of land is owned by traditional owners and that iTaukei owners often lease land to others through a government-coordinated leasing system. It referred to restrictions on the use of land.[1]
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji' (20 May 2022), p.9
I accept on the evidence before me that a lease agreement was executed between the iTaukei Land Trust Board and [Company 1] in relation to a piece or parcel of land. The applicant has claimed that they were not consulted prior to the lease and has also claimed that their land was taken and sold without their knowledge. However, the applicant has provided very little detail in relation to this matter. He has not provided detail as to the precise circumstances in which he claims the land was leased without consultation or sold without their knowledge or consent. While the applicant has claimed that he fought for their land which was under threat from the government, that he had a lot to say on the use of their land and that they as landowners were opposed to plans to move them to the city, he has not detailed any action he took in relation to the land. He provided little detail in relation to the claimed plan by the government to move them to the city.
I note that the Protection visa application asked the applicant to give details of all addresses outside Australia where he had lived for 6 months or more in the previous 10 years. He gave a single address in [Village 1], Suva, Rewa for the entirety of the period from January 2000 to September 2018. As noted above, the applicant has provided very limited detail in relation to the claim that land was leased without consultation or sold without their knowledge or consent. I accept that a parcel of land was subject to a lease agreement executed in October 2015. However, I am not satisfied on the information before me that any land belonging to, or connected with, the applicant or his family was leased without consultation or sold without knowledge or consent. I am not satisfied that the Fiji First Government, the Fijian authorities or others ever in any way deprived the applicant or his family of their land rights, planned or sought to move them to the city, or in any way mistreated them in connection with the land. Noting that the applicant indicated in his application that he lived at an address in [Village 1] from January 2000 to September 2018, I am not satisfied that he was ever deprived of his place of residence.
In this regard, I note that the applicant provided a statement from his father in which his father stated that the applicant lived in [Location 1] and that he had his own house built on a piece of land owned by the clan. The statement from the applicant’s father appeared to suggest that the Fijian Government had sold the piece of land where the applicant’s house was located to the [Country 1 company], [Company 1], and that this had left his sons in a very bad situation. As noted above, the applicant indicated in his Protection visa application that he had lived at an address in [Village 1], Suva, Rewa for the entirety of the period from January 2000 to September 2018. The information in the statement from the applicant’s father is at odds with this information in the Protection visa application. There is no explanation available for this. On the available information, I do not accept the information in the statement from the applicant’s father as reliable and I give it no weight.
I note that, in his submission to the Department dated 18 April 2019, the applicant provided documentation described as ‘Evidence of members of Trustees for our Land owners Trust known as [Trust 1]’. He provided 2 documents with his signature. One described the signatories as the authorised signatories of [Trust 1], while the other was also headed ‘[Group 2]’. I am willing to accept that the applicant is a trustee or office holder for the [Trust 1] and signatory for [Group 2] as he appears to suggest. While the applicant has claimed that he fought for their land and had a lot to say on the use or lease of their land, he did not provide any detail in this regard such as precisely what he said or when. As noted above, he claimed that they as landowners were opposed to plans to move them to the city, but has not detailed any action he took in relation to the land. While he claimed that such activity might make him a target, he has not detailed any past targeting or harm in relation to such activity. I am not satisfied on the evidence before me that the applicant has spoken out in relation to the land in the past or taken action to fight for the land or opposed plans to move them to the city, whether as a trustee of the [Trust 1] or in any other capacity. I am not satisfied that he ever attracted the adverse interest of the authorities because of any such activity or because of being a trustee of the [Trust 1] or a signatory for [Group 2]. I am not satisfied that he was warned to keep his mouth shut and not to cause any disrespect towards the Fiji First government or say anything bad about Bainimarama or Khaiyum or anyone else.
While the applicant claims that he involved himself with SODELPA as an advocate for youths in his area, he has not detailed the nature of this claimed activity. I am not satisfied on the very limited evidence before me that the applicant has been politically active or engaged in the past, or that he has been in any way targeted or harmed for reason of political opinion.
The applicant stated in his application that he believed that the 2018 election was rigged and that SODELPA had taken the matter to court. He questioned the neutrality of the police and military, and expressed concern that there would be a coup. He described politics in Fiji as being at boiling point and expressed concern that there would be a civil war should the courts decide that the 2018 election had been rigged.
In its May 2022 report, DFAT reported that politics in Fiji was no longer characterised by the unrest of the past. The 2018 election was calm and orderly. In that report DFAT assessed that opposition political parties and their members experienced a low risk of official violence but noted that discrimination in the form of questioning or restriction on activities was possible.[2] More recent information indicates that elections in December 2022 resulted in a change of government in Fiji, with the Social Democratic Liberal Party (SODELPA), the National Federation Party (NFP) and the People’s Alliance Party (PAP) forming a coalition.[3]
[2] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’ (20 May 2022), pp.15-16
[3] D. Brennan, ‘Under New Leadership, What’s Next for Fiji?’, The Diplomat (10 January 2023)
On the evidence before me, I am not satisfied that the applicant came to the adverse attention of the authorities in 2008 as claimed, or that he in any way received threats or warnings from the police, the military or anyone else in Fiji. I am not satisfied on the evidence before me that the applicant has spoken out in relation to the land in the past or taken action to fight for the land or opposed plans to move them to the city, whether as a trustee of the [Trust 1] or in any other capacity. I am not satisfied that he ever attracted the adverse interest of the authorities, the military or the police because of any such activity or because of being a trustee of [Trust 1] or a signatory for the [Group 2]. I am not satisfied that he was warned to keep his mouth shut and not to cause any disrespect. I am not satisfied on the very limited evidence before me that the applicant has been politically active or engaged in the past, or that he was in any way targeted or harmed for reason of political opinion. Looking to the reasonably foreseeable future, I find to be remote the chance that the applicant would be persecuted in Fiji for reason of actual or imputed political opinion.
I do note that there is some reference to abuses by police in DFAT’s Country Information Report of 20 May 2022. DFAT stated, for instance, that protesters faced a low risk of official discrimination and a moderate risk of violence in the form of police brutality.[4] DFAT also referred to police violence, noting, for instance, that sources told DFAT that assaults occurred in custody.[5] I have had regard to the applicant’s claims about the military and the police, including that they were forced to vote for Fiji First, that he was scared of going to the police, that there were reports of police brutality, that the government encouraged the problems and that the Police Commissioner was a military man. However, I am not satisfied on the limited evidence before me that the applicant has any political profile or that he has ever been of any adverse interest to the Fijian authorities for any reason. I am not satisfied, looking to the reasonably foreseeable future, that there is a real chance that the applicant would be the victim of brutality at the hands of the police or military in Fiji, or that he would be otherwise targeted or harmed by them.
[4] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji (20 May 2022), p.14
[5] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji (20 May 2022), p.23
The applicant has also made claims in relation to his race, which he described as South Pacific Islander, and culture. On the limited information before me, I am not satisfied that the applicant has suffered any harm in Fiji for reason of his race. In its May 2022 report, DFAT noted that about a third of the population was Indo-Fijian and the majority of the rest of Fijians were iTaukei. Overall, DFAT assessed that there was no official discrimination against indigenous Fijians. It stated that some low-level societal discrimination existed and this affected most Fijians.[6] On the evidence before me, I am not satisfied looking to the reasonably foreseeable future that there is a real chance that the applicant would suffer serious harm in Fiji for reason of his race.
[6] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji (20 May 2022), pp.11-12
I am willing to accept that the applicant’s clan constitutes a particular social group. I am willing to accept also that the applicant’s father is the head or chief of [their clan]. I have also accepted that the applicant is a trustee of [Trust 1] and a signatory for [Group 2]. However, I am not satisfied on the evidence before me that he has ever been threatened or harmed in any way for reason of membership of his clan, membership of his family group or his role as a trustee and signatory. Looking to the reasonably foreseeable future, I am not satisfied that there is any real chance that he would suffer serious harm in Fiji for reason of membership of a particular social group constituted by his clan or family. Even if I were to accept that the trustees of [Trust 1] or the signatories for [Group 2] constitute particular social groups, I am not satisfied that there is any real chance that the applicant would be persecuted in Fiji for reason of membership of those groups.
The applicant has made claims in relation to his religion. He has indicated in his Protection visa application that he is a person of Christian faith. I have had regard to the letter of support from the pastor of [Church 1] which refers to the applicant’s involvement in the church. I accept that the applicant is Christian. He has not detailed any difficulties or mistreatment he has suffered in Fiji as a Christian. On the limited evidence before me, I am not satisfied that he has ever suffered any harm in Fiji for reason of his religion. In its May 2022 report, DFAT stated that the 2013 Constitution guarantees freedom of religion and specifically protects against religious discrimination. It stated that freedom of religion is well established in practice, and the Government and the people generally respect that freedom. About 65 per cent of Fijians are Christians.[7] Looking to the reasonably foreseeable future, I am not satisfied that there is a real chance that the applicant would suffer persecution in Fiji for reason of his religion.
[7] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji (20 May 2022), p.12
I note that the applicant appeared to indicate in his application that he had military service obligations. However, he did not detail the nature of any obligations or how these might be relevant to his claims. I am not satisfied on the very limited information before me that he has any obligations in terms of military service.
The applicant referred in his application to people disappearing, growing crime, abuse of women and children, and high levels of unemployment. His claims in this regard are lacking in detail. He did not detail how such matters might have affected him. As noted above, while the applicant’s father’s statement asserted that the applicant had been unemployed for 10 years, this is not consistent with information provided by the applicant himself and I do not accept the father’s evidence as reliable. The applicant’s evidence in his application was that he worked as [an Occupation 2] for [Company 2] from February 2005 to July 2012, and as [an Occupation 1] with [Company 4] from August 2012 to September 2018. He gave a single address in [Village 1] for the period from January 2000 to September 2018. He has provided a copy of his Curriculum Vitae which also refers to his work for [Company 4] from 2012 to 2016.
In its May 2022 report, DFAT described Fiji as generally stable and secure, and observed that crime rates, especially for violent and organised crime, were generally low. DFAT did describe domestic violence, and provided information on violence against women and girls.[8] With respect to economic conditions in Fiji, DFAT has noted that the World Bank defines Fiji as an upper-middle income country but referred to the significant disruption caused by the COVID-19 pandemic.[9] More recent reports indicate that the Fijian economy has rebounded strongly since the pandemic.[10]
[8] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji (20 May 2022), pp.10 & 17-18
[9] Australian Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji (20 May 2022), p.7
[10] See, for instance, World Bank, Macro Poverty Outlook Fiji (1 October 2023), accessed 29/11/23
As noted above, the applicant has not detailed how crime, abuse of women and children, and unemployment have affected him. I have considered the applicant’s claims in this regard but am not satisfied on the evidence before me that the applicant faces a real chance of persecution in Fiji for reason of race, religion, nationality, membership of a particular social group or political opinion.
I have considered all of the applicant’s circumstances both individually and cumulatively. Although I am not satisfied on the evidence before me that the applicant has suffered any harm in Fiji in the past, I am satisfied that he is a person of South Pacific Islander race and Christian religion. I have had regard to his membership of his clan group and family, to his father’s role as head of the clan, and to the fact that the applicant is a trustee of [Trust 1] and a signatory for [Group 2]. I have considered all of his claims, including his claims about crime and economic conditions. On the information before me and looking to the reasonably foreseeable future, I am not satisfied that there is a real chance that the applicant would be persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion. I am not satisfied that he is a refugee as defined in s 5H(1) of the Act. Accordingly, I am not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
I have also considered the application of s 36(2)(aa) to the applicant’s circumstances. On the very limited information before me and noting the findings outlined above, I am not satisfied that the applicant has ever been in any way threatened or harmed in Fiji by the Fijian authorities, the police, the military or anyone else. I am not satisfied on the limited evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm, at the hands of the authorities, the police, the military or anyone else.
As outlined above, I am not satisfied on the evidence before me that the applicant came to the adverse attention of the authorities in 2008 as claimed. I am not satisfied that he was harmed by them in any way, or that he in any way received threats or warnings from the police, the military or anyone else in Fiji. I am not satisfied that the Fiji First Government, the Fijian authorities or others ever in any way deprived the applicant or his family of their land rights, planned or sought to move them to the city, or in any way mistreated them in connection with the land. I am not satisfied that the applicant spoke out in relation to the land or took action to fight for the land or opposed plans to move them to the city. I am not satisfied that the applicant has been politically active or engaged in the past, or that he has been in any way targeted or harmed by the authorities. I am not satisfied that the applicant has any political profile or that he has ever been of any adverse interest to the Fijian authorities for any reason. I am not satisfied that the applicant has ever suffered harm in Fiji for reason of his race or religion, for reason of membership of his clan group or family, or in connection with his role as a trustee and signatory. While the applicant made claims in relation to crime, abuse of women and children and unemployment, he has not detailed how these things affected him. As noted above, the applicant’s evidence in his application was that he worked as [an Occupation 2] for [Company 2] from February 2005 to July 2012, and as [an Occupation 1] with [Company 4] from August 2012 to September 2018. He gave a single address in [Village 1] for the period from January 2000 to September 2018.

I have had careful regard to all of the applicant’s circumstances. Having carefully considered all of the applicant’s claims and his circumstances, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Don Smyth
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.
…

[2023] AATA 4820

18 December 2023

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