2008967 (Refugee)

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

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).
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.
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.
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.
The applicant appeared before the Tribunal on 6 August 2024 by video conference to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
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 EVIDENCE
Issues
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
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.

The Tribunal has also considered other sources of recent country information since the December 2022 Fijian elections and the subsequent change of government, including the Lowy Institute’s report; ‘Fijis New Politics’ of 17 January 2023, in which in part it is reported that:
Fiji’s 14 December 2022 election will go down as a momentous occasion in the nation’s history – including for potential impacts on Suva’s diplomatic ties with Pacific partners.
Immediate tasks identified by new Prime Minister Sitiveni Rabuka’s tripartite coalition include the revival of the pandemic-scarred economy, the re-examination of foreign relations, and the restoration of democratic institutions, which never quite recovered from the battering of the 2006 coup.
The election ended the 16-year reign of the Fiji First Government headed by Frank Bainimarama, the country’s larger-than-life figure after seizing power in 2006, before winning elections in 2014 and 2018. Bainimarama’s military background coupled with Fiji’s “coup culture” had raised concerns about a smooth transfer of power amid fears about the military being called to assist police. For two weeks after the new government was finally sworn-in on Christmas Eve on a slim, three seat majority in the 55-member house, the country was on edge as tensions between the former and successor governments intensified…[1]
[1] ‘Fiji’s New Politics’, Shailendra Bahadur Singh, Lowy Institute, published 17 January 2023 Fiji, - >
And the Centre for Strategies and International Studies article ‘A New Era in Fijian Politics’ in which it was reported that:
…Rabuka’s government has wasted no time in reversing numerous vestiges of Bainimarama’s long tenure. This includes the release of withheld funding for the University of the South Pacific, which is critical to not only Fiji but the wider Pacific, as well as permitting the return of the institution’s exiled vice chancellor. Monetary payments were also announced for 200,000 low-income Fijian families to assist with schooling costs, as well as an infusion of funds for Fiji’s beleaguered school system. MPs were given another pay cut bringing their earnings down 30 percent from pre-pandemic levels. Rabuka’s government has also signaled its intent to roll back media restrictions that were one of the most egregious features of the Bainimarama era. Alongside these popular measures, Rabuka’s government has exercised its prerogative to overturn appointments made by the previous government to diplomatic missions, government agencies, and institutions….[2]
[2] ‘A New Era in Fijian Politics’, Patricia O’Brien, Centre for Strategies and International Studies, published February 2023 - https:/>
In March 2023, the Australian Institute of International Affairs (AIIA) stated that people who were deported, threatened or forced to leave Fiji for speaking out against the former Fiji First government are being granted permission to return, and are doing so.[3] The government has reversed politically motivated travel bans against several high profile critics of the former government, such as former Vice Chancellor and President of the University of the South Pacific (USP) Pal Ahluwalia and Fijian academic Padma Lal.[4]
[3] ‘Cautious Optimism for Fiji’s Coalition Government’, Australian Institute Affairs (AIIA), 08 March 2023.
[4] Amnesty International Report 2022/23: The State of the world’s human rights’, Amnesty International, 27 March 2023, p164.
Review hearing - 6 August 2024
The Tribunal hearing was conducted at the Brisbane Registry with the appearing in person. The hearing was conducted in the English language.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria told the Tribunal that he had not received an explanation of the criteria in the past from anyone.
The Tribunal then provided a brief outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria as had been explained to him by the Tribunal.
Under questioning, the applicant told the Tribunal that he had come to Australia in November 2018 to visit his sister who is married to an Australian and lives in [Town 1], Queensland. He told the Tribunal that his sister is now an Australian citizen. He said that he made his application for the protection visa in February 2019 as he wanted to remain in Australia and look for work and education opportunities.
The applicant during the hearing told the Tribunal that he had sought advice and assistance from some members of the Fijian community in [Town 1] who assisted him in making his application for the visa. However, the applicant told the Tribunal that after reviewing his application with his sister they had agreed that it was the wrong visa for him as he should not have gone for a protection visa but rather another visa as his reasons for wanting to remain in Australia were for the work opportunities that were open to him in Australia.
The applicant told the Tribunal that in 2019 he completed some [training] so as he could obtain employment in [a] sector. However, after being unsuccessful in obtaining employment in that sector the applicant after having travelled to [City 1] for a birthday party in 2021 was offered employment through his Church elders at [City 1]. He subsequently obtained employment with [a] company as a [occupation] at their [City 1 workplace]. The applicant told the Tribunal that he continues to live in [City 1] and that he is also working for [the same company] as evidenced by his letter of support from his employer.
The applicant told the Tribunal that in addition to his sister who is an Australian citizen he has four other siblings in Fiji. He told the Tribunal that one of his sisters works as a [occupation] and another is a [occupation] in Fiji. He further explained that his two other sisters are unemployed and live with his mother on the family farm where he used to live and work. He told the Tribunal that prior to leaving for Australia he had completed his schooling and had commenced a [course] [so] he could increase his marks so that he could then gain entry into a [course] at [a] university. The applicant further explained that after he had been unable to get the subject grades, he needed for entry into that course he had come to Australia to see his sister. He said that after arriving in Australia and staying with his sister he had sought advice from members the Fijian community as to how he could remain in Austrlia so he could pursue better job opportunities and he was then assisted in making his application for the protection visa.
When asked as to what fears of harm he had in relation to any future return to Fiji, the applicant told the Tribunal after some delay in responding to that question that; “it would be a bit hard to look for work back home.”
Under questioning the applicant told the Tribunal that he was not seeking protection in Australia but rather seeking better employment opportunities. He then explained, as he had said earlier, that he and his sister had reviewed his application for protection and they had agreed that he should not have gone for protection because he did not need protection and that instead he should have made application for a different type of visa.
The Tribunal then took the applicant through his claims as had been outlined in his application for the visa and as has been outlined above at paragraph 17. The applicant in reply, told the Tribunal that those claims had been made by the person who had assisted him in making the application and that they were not true. He said that it was not the case that he had left Fiji to pursue education but rather better employment opportunities. He further told the Tribunal that he had not been outspoken in Fiji and that he had not criticised the government and brought upon the wry of the education authorities. He further told the Tribunal that he had not, nor did he ever or now, hold any fears as to being arrested for sedition by the Fijian authorities and being imprisoned and facing sexual abuse whilst incarcerated in Fiji.
The applicant told the Tribunal that his claims as outlined in his application were made by someone else and that they did not reflect any of his concerns. He again explained that after having arrived in Austrlia he had decided that he wanted to stay in Austrlia so he could pursue better employment opportunities here and earn a better wage that he could expect to earn in Fiji.
Under questioning the applicant told the Tribunal that if he was returned to Fiji, he would most likely return to the family farm and would work the farm which he believed could generate an income for himself and his family. However, such an income he said, would not be a very good income. He explained that his current job in [City 1] enabled him to support himself here in Australia and also allowed him to send about AUD $100.00 a month to his family. He explained that this money and money from his sisters who were working was being used by their family to pay down their father’s farming loan of about $15,000.00 Fijian which he said was about AUD $13,000.00.
The applicant when taken through the refugee and complimentary criteria by the Tribunal told the Tribunal that he was not a refugee but rather he and his family would be disadvantaged financially if he was returned to Fiji as he would not be able to obtain employment there that would allow him to assist his family financially. However, under further questioning the applicant agreed that the financial situation and availability of employment and the level of wages available in Fiji were all matters that were faced by the Fijian community at large and not specific to him individually.
In reply to the Tribunal discussing the country information as has been outlined above at paragraphs 21 to 24, the applicant told the Tribunal that things had improved in Fiji since he had left on account of the new government and although the economy is getting better it will take some time for there to be more jobs and better incomes. He further explained that employment is still harder to secure in Fiji and the wages in Fiji are not as good as those available in Australia.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Fiji and provided a copy of the bio-data page of his Fijian passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[5] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[6] This is consistent with the established proposition that it is for the applicant to make his or her own case.[7]
[5] Section 5AAA of the Act.
[6] Ibid (with effect from 14 April 2015).
[7] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[8] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[9]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[8] Fox v Percy (2003) 214 CLR 118
[9] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[10] A similar approach is taken in the Department’s Refugee Law Guidelines[11] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[12] which both provide useful guidance for this Tribunal.
[10] SZLVZ v MIAC [2008] FCA 1816 at [25].
[11] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[12] UNHCR, re-issued February 2019 at [203]–[204].
Claims of fearing harm
The applicant at the hearing told the Tribunal that the claims made in his application for the visa were not truthful and that they had been made by other people who had completed the application for him. It was the applicant’s evidence at the hearing that he had not experienced any harm in Fiji and that he had not, and did not, fear facing serious harm upon any future return to Fiji.
The applicant at the hearing told the Tribunal that he had not fled Fiji for any reasons relating to fearing harm but rather to visit his sister in Queensland, and once here in Australia he had then decided to find a way in which he could remain in Australia where he could pursue better employment opportunities than had been available to him in Fiji.
In that regard, the Tribunal on the evidence before it, finds that the applicant’s only claim is that he fears returning to Fiji in the future because he will not be able to find employment there and if he does find employment in Fiji, that it would not provide the same level of income that he has been able to obtain here in Australia. The applicant also expressed concerns that if he was to return to Fiji and there be unable to secure similar wages to those he has been able to secure here in Australia he would be unable to further assist his family financially in Fiji.
On the evidence before it, as has been outlined above, the Tribunal finds that the applicant’s claims are economic in nature and relate to the availability and opportunities of employment for the applicant in Fiji and the level of wages that would also be available to him if he was to return to Fiji. The Tribunal finds that the applicant’s economic claims do not relate to any of the reasons outlined in s 5J(1)(a) of the Act, that is, for reasons of race, religion, nationality, membership of a particular social group or political opinion; as was accepted by the applicant at the hearing.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future if he was to return to Fiji on account of being unable to find employment and obtain better wages in Fiji than he can obtain here in Australia.
As such the Tribunal finds that the applicant’s fears in this regard are not well-founded.
Complementary considerations
Additionally, the Tribunal has separately considered whether the applicant faces a real risk of suffering significant harm in so far as facing cruel or inhuman treatment or punishment and/or degrading treatment or punishment as a result of being unable to obtain employment and wages that allow him to sustain himself and financially assist his family in Fiji.
In that regard, first, the Tribunal notes that there is no evidence before it, of the applicant having had or will face employment opportunities and wages in Fiji being withheld from him personally. As such, there is no evidence of any intention to cause significant harm to the applicant by any actor, institution and/or government agency as required by s 5 of the Act.
Second, notwithstanding the DFAT country information as has been outlined above at paragraph 21, that reports that; “The World Bank defines Fiji as an upper-middle income country’ and that; “Fiji is one of the largest economies in the Pacific region”. The Tribunal finds that the economic situation in Fiji and the employment opportunities and level of wages available in Fiji are risks that are faced by the population of Fiji generally and are not risks faced by the applicant personally and as such they do not amount to significant harm, s 36(2B)(c) of the Act.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion and that the economic situation in Fiji is a risk faced by the population of Fiji generally, s 36(2B)(c) of the Act, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Fiji.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 3768

7 August 2024

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