2008967 (Refugee)

Case [2024] AATA 3768


2008967 (Refugee) [2024] AATA 3768 (7 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008967

COUNTRY OF REFERENCE:                   Fiji

MEMBER:David James

DATE:7 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 August 2024 at 11:07am

CATCHWORDS

REFUGEE – Protection Visa – Fiji – a victim of sexual harassment – wanting to remain in Australia were for the work opportunities – seeking better employment opportunities – had not experienced any harm in Fiji – economic problems – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 411, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of Fiji, applied for the visa on 6 February 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.  The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer significant harm as defined in s 36(2A) of the Act. Therefore the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

  3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 28 May 2020. The applicant provided a copy of the delegate’s decision with their application for review.

  4. As noted above, the applicant has provided the Tribunal with a copy of the delegate’s decision. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.

  5. The applicant appeared…

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AGLC
2008967 (Refugee) [2024] AATA 3768
Case
[2024] AATA 3768
Decision Date

CaseChat Overview and Summary

The applicant sought review of a decision to refuse a protection visa. The applicant claimed a well-founded fear of persecution in Fiji based on his outspoken criticism of the government, which he alleged would lead to apprehension, detention, and sexual harassment. He also claimed that economic hardship and lack of educational and employment opportunities in Fiji necessitated his desire to remain in Australia.

The court was required to determine whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and if there was a real chance of persecution upon return to Fiji. Alternatively, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Fiji, the applicant faced a real risk of suffering significant harm under section 36(2A) of the Act.

The court considered documentary evidence, including country information from the Department of Foreign Affairs and Trade (DFAT). DFAT reports indicated that Fiji is an upper-middle-income country with available education and employment opportunities, although the COVID-19 pandemic had caused economic disruption. While acknowledging some limitations in enforcement of minimum wage laws and potential delays in the judicial system, the reports did not substantiate claims of widespread arbitrary detention or a lack of state protection against societal harassment. The court found that the applicant had not demonstrated a well-founded fear of persecution for any of the prescribed reasons, nor a real risk of significant harm upon return to Fiji. The applicant's desire to remain in Australia was primarily motivated by seeking better employment and educational opportunities, which did not meet the threshold for protection.

The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Fiji they would be persecuted for one of those reasons and, if not, 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 6 February 2019 and the annexed copy of the applicant’s bio-data page of his Fijian passport and his Fijian birth certificate;·The applicant’s application for review of 28 May 2020 and the annexed Decision Record of 5 May 2020; ·The administrative and movement records of the Department relating to the applicant;·An unsigned letter of support, dated 5 August 2024, under the hand of [name], Operations Manager of [a company] (applicant’s employer);·A signed letter of support under the hand of [name], [a] Church Leader, dated 2 August 2024; and·A signed letter of support under the hand of [name], Church Pastor of [Churches], dated 20 July 2024, in which he states in part that:[The applicant], having lost one of his dearly siblings just recently, and the great financial need of his parents and family back in Fiji has driven him to find a better life here in Australia. [The applicant] indeed strives and explore all options to remain in Australia where he could have better opportunities to a brighter future. [The applicant] has felt the vacuum left behind by the unexpected death of his family member and the desperation of his family and parents for financial support, and he desires to remain to find a better life in Australia.Claims for protection The applicant, in his visa application made the following claims (as summarised) that:·He is [age] years of age and left Fiji to pursue education and a better future because he was being deprived of education and the credentials to source meaningful employment; ·He has been publicly outspoken about this issue and has criticised the government of the day for this lack of opportunity and that has brought upon the wry of education authorities who have in their own interests supported the government’s approach and direction;·If he returns to Fiji, he will be apprehended and taken into custody at the airport for sedition because he has been publicly outspoken and critical of the government and because he has applied for protection on the basis of having been critical of the Fijian government;·He was subject to harm by verbal abuse in Fiji and was taunted by his community because of his known sedition;·He sought guidance form his local church minister, however he was criticised for his political stance and told to get to work and pay for his education so he can get ahead, but he cannot get work and cannot get an education in Fiji;·He moved around and stayed with friends and relatives for short periods but was soon told to move on if he could not pay his way in Fiji;·He fears being taken in custody and becoming a victim of sexual harassment in Fiji where in prison he will be bullied into sexual submission and his life will be destroyed; and·The police would not have the power to protect him and would charge him with sedition.Department interview

Decision

Reasons for decision

The applicant was not offered an interview by the Department.Delegates decision The delegate’s decision of 5 May 2020 to refuse the protection visa was made on the information before the delegate. The delegate found that based on country information before them that the Fijian economy was in sound shape and that there was no evidence before them to suggest that the applicant would be denied the opportunity to seek and gain employment and to have the capacity to subsist. Additionally, they found that there was nothing before them to indicate that the applicant would be denied education. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate also found with reference to country information that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that the applicant will suffer significant harm. Invitation to attend a hearing On 15 July 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 6 August 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. Country information The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including under the heading of ‘Economic Overview’ at 2.7 to 2.10, it is reported that: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.Under the heading of ‘Education’ at 2.16 and 2.17, it is reported that:School education is compulsory until age 15. The Government provides free education but costs such as uniforms are usually not covered. Enrolment is universal, even in outer islands (though some students will move and stay with extended family to pursue secondary or tertiary education). Literacy is almost universal. Schools are mostly provided by religious organisations but receive government subsidies and teach a government curriculum. In-country sources told DFAT teacher quality is high overall, but services for students with specific needs (such as those with learning disabilities, or advanced students) are less available than in Australia. Tertiary education and vocational education are also available. Many students receive scholarships to attend university. Having to move to another island may present a practical barrier to higher education. The range of vocational skills taught in Fiji is smaller than that available in Australia.Under the heading of ‘Employment and welfare’ at 2.18 to 2.23, it is reported that:Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.The tourism sector was significantly disrupted by the COVID-19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre-pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. The amounts paid under various schemes (not including food vouchers and bus subsidies) is typically about FJD35-90 (AUD20-60) per month.iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support. While family and kinship ties are less pronounced in Indo-Fijian families (iTaukei families have formed these networks over a much longer time) they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families. Remittances are an important part of the Fijian economy and may have been a source of support for some Indo-Fijians following recent high levels of outward migration.Under the heading of ‘Race/Nationality’ at 3.1 to 3.5 where it is stated at 3.1 and 3.5 that:The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei. Statistics on ethnicity were not released by the Fiji Bureau of Statistics for the 2017 census due to problems when collecting the data.Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race. Under the sub heading of ‘iTaukei’ at 3.8 to 3.10 it is reported that:Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. 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. Under the heading of ‘Political Opinion (Actual or Implied)’ where at 3.25 it states that: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.Under the heading of ‘Arbitrary Arrest and Detention and Criminal Procedure at 4.5 it is reported, that:Under the Constitution, an arrested person has the right to understand the reason for their arrest, to remain silent, communicate with a lawyer, be held separately from convicted criminals, be brought before a court within 48 hours and have someone informed of their arrest. The 2021 US Department of State Human Rights Report found these rights are generally respected, but the Public Order Act allows the suspension of some rights and may allow up to 16 days of detention without charge in those cases. Under the heading of ‘State Protection’ at 5.1 to 5.16, where under the sub heading of ’Police’ at 5.6 to 5.10 it is reported at 5.6, 5.7 and 5.10 that:The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’. Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention. And under the heading of ‘Judiciary and access to law’ at 5.17 to 5.20 where it states at 5.17 to 5.19 that: Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021. The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.

Ratio Decidendi

Legal Principle Established

Section 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) 210 FCR 505.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Fiji they would be persecuted for one of those reasons and, if not, 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 6 February 2019 and the annexed copy of the applicant’s bio-data page of his Fijian passport and his Fijian birth certificate;·The applicant’s application for review of 28 May 2020 and the annexed Decision Record of 5 May 2020; ·The administrative and movement records of the Department relating to the applicant;·An unsigned letter of support, dated 5 August 2024, under the hand of [name], Operations Manager of [a company] (applicant’s employer);·A signed letter of support under the hand of [name], [a] Church Leader, dated 2 August 2024; and·A signed letter of support under the hand of [name], Church Pastor of [Churches], dated 20 July 2024, in which he states in part that:[The applicant], having lost one of his dearly siblings just recently, and the great financial need of his parents and family back in Fiji has driven him to find a better life here in Australia. [The applicant] indeed strives and explore all options to remain in Australia where he could have better opportunities to a brighter future. [The applicant] has felt the vacuum left behind by the unexpected death of his family member and the desperation of his family and parents for financial support, and he desires to remain to find a better life in Australia.Claims for protection