2009514 (Refugee)

2009514 (Refugee) [2024] AATA 1136 (4 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Danny Narayan
CASE NUMBER:  2009514
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Samira Kamandi
DATE:4 January 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 January 2024 at 8:01am
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – employment in government sector – unfair recruitment processes – suspension and termination of employment – capacity to subsist – political environment – freedom of speech – social media use – failed asylum seekers – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 4 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Fiji. He is an indigenous Fijian of Christian faith. The applicant applied for a protection visa on 3 February 2020 and his protection visa application indicates that he departed Fiji, via Nandi airport, [in] November 2019 and arrived in Australia on the same date.
The applicant’s protection visa application was refused on 4 June 2020. He applied for a review of that decision on 8 June 2020. The applicant was represented in relation to his review application.
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 (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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection visa application
The applicant’s claims as set out in his protection visa application can be summarised as follows:
·The applicant became sad and depressed about living in a country where rights of indigenous people are restricted. In 2000, the applicant experienced his first military coup and instability. His siblings noticed the change in him. He became aggressive and was easily angered when difficult situations arose. Work was the only thing that he enjoyed.
·The Fijian government arrests and detains those who express views on any issues. There are many cases of ordinary citizens being taken for questioning if they go against the government.
·The Fijian government introduced an unfair, biased and unjust recruitment process, mainly in the government sector. Indigenous Fijians have suffered from this. They do not have an opportunity to be promoted or given senior positions. There is discrimination in the management level.
·The applicant worked with the [specified government department] (the department). He was charged with an allegation [in] February 2019 and suspended from work for nearly 10 months. He was not provided with evidence of the allegation.
·On [date] January 2020, the applicant sent an email to the whole department highlighting improper procedures within the department. On [date] January 2020, he was sent his termination letter.
·It was common practice for an indigenous officer to be replaced by a non-indigenous officer.
·The applicant’s termination caused him to lose his dignity and respect within his family, relatives and friends.
·The applicant did not seek help from the authorities because he knew that he would not win his case. The department is under the [specified office] and the authorities are under their supervision. The authorities serve the interest of the government.
·Fiji is too small for the applicant to relocate and escape the harm.
·The applicant has shared information about the discrimination and unfairness of recruitment processes in Fiji on social media. He fears being taken by the police and other authorities for his actions and accused of racial discrimination.
The applicant attached copies of letters addressed to him from [the department]. The letter dated [in] February 2019 informs the applicant that he is suspended with pay from [date] February 2019 for an indefinite period in respect of an allegation of breaches of the public sector code of conduct. The letter dated [in] November 2019 informs the applicant that his employment was terminated on the grounds of gross misconduct effective [date] November 2019.
The delegate’s decision
The applicant was not interviewed by the delegate in relation to his claims. The delegate was not satisfied that the applicant would suffer serious harm as a result of being an indigenous Fijian or that he has a political profile which would attract any adverse attention from the Fijian authorities. Considering the applicant’s claim, the delegate was not satisfied that the applicant faced a real chance of persecution or a real risk of significant harm, if returned to Fiji.
Review application
The applicant lodged a review application with the Tribunal on 8 June 2020. He provided the Tribunal with a copy of the delegate’s decision.
On 10 June 2020, the applicant emailed the Tribunal with a submission and included attachments. The short submission reiterates the applicant’s claims about the unfair recruitment processes in Fiji which he claims adversely impact indigenous Fijians. The applicant also claims that the Fijian government security arms and the judiciary are under the control of the government and that there is no freedom of speech. The applicant attached various articles. Some appear to have been taken from social media, two articles were published by Fiji Trades Union Congress in 2018, and other articles were published in news outlets in 2019 and 2020. These include:
·Articles which appear to relate to discussion of the human rights of indigenous Fijians.
·An article titled “Pandemic law – A whole drama series” published on 23 May 2020.
·An article published in the Guardian on 16 May 2020.
·Two documents published by the Fiji Trades Union Congress on 4 September 2018.
·An article titled “Fiji: Despite UN scrutiny ahead, no progress on human rights” dated 21 March 2019.
·An article written by the Fiji Labor Party, dated 25 May 2020.
·An article by a member of the opposition – taken from social media.
On 30 June 2020, the applicant emailed the Tribunal with further documents, including 2017 Amnesty International reports and various other media reports and articles which appear to have been provided in support of the applicant’s claims about the treatment of indigenous Fijians under the former government. There is also an article relating to a broadcast on ABC about the pressure on World Rugby to deliver the findings of an investigation into the disgraced chairman of Fiji Rugby Union.
In the period between 12 July 2020 and 11 July 2023, the applicant provided the Tribunal with various documents, including copies of his payslips while he was employed by the [Employer 1] group of companies based in Sydney as evidence that he was paying tax, copies of various documents relating to his enrolment in various courses and qualifications and licences he had obtained in Australia, copies of his rent statements and copies of his tax assessments.
On 4 December 2023, the applicant’s representative provided the Tribunal with a further submission, a supporting statement from the applicant dated 5 December 2023, copies of email trails relating to the applicant’s communications with his former employer about his suspension and termination from his position at [the department] in Fiji, and copies of the applicant’s suspension and termination from his employment, which were already before the Tribunal.
The submission on behalf of the applicant indicates that:
·the applicant feels that it is crucial that he shares the complex issues that he encountered and the serious implications that he might face if returned to Fiji.
·The former Prime Minister Bainimarama had caused great suffering for indigenous Fijians through systematic discriminatory hiring practices, especially in the government sector. Indigenous people were not promoted or given senior positions despite meeting the appropriate qualifications for government-advertised jobs. The discriminatory hiring practices in Fiji’s employment sector have had a devastating negative impact on the indigenous Fijians.
·Scrutiny of any government decision by an indigenous Fijian person/organisation could result in serious repercussions and imprisonment.
·The applicant was terminated from his employment and not provided with any meaningful justification. The dismissal from his job had a significant negative influence on his general health and derailed his important role as the main source of emotional and financial support for his family.
·The applicant’s general wellbeing has suffered greatly because of Fiji’s unpredictable political and social climate. He has deeply entrenched concerns about the state of politics in Fiji, unstable government, the history of volatile political calamities, including the build-up towards the 2022 general election.
·The applicant is concerned about being guaranteed his rights as an indigenous Fijian, prospect of getting his job back, and is hoping the new government will bring about change.
·The applicant has positively contributed to the Australian community. He has been working, paying taxes and volunteered in community activities, and is committed to having a positive impact on Australia’s community.
In his statement dated 5 December 2023, the applicant reiterates his commitment to make a positive impact on Australian society and that he encountered political upheaval and institutionalised discrimination, which had a significant negative influence on his safety and wellbeing. The applicant also states that he has real concerns about being back in an unstable environment.
The applicant was invited to attend a hearing on 15 December 2023. In his response to the hearing invitation, the applicant’s representative indicated that the applicant would not require an interpreter and that his representative will not be attending the hearing.
The hearing was held in person at the Tribunal’s Perth Registry. The applicant’s representative was not in attendance and the applicant gave evidence in English. The applicant was proficient in English and was able to understand and respond clearly to questions asked and concerns about his evidence.
At the conclusion of the hearing, the applicant was granted time to engage with his legal representative and to provide any further information or supporting evidence that he wished to be considered in assessing his claims. The applicant was given until 22 December 2023. To date no further information has been received.
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Malaysia for reasons of his race, religion, nationality, membership of a particular social group or political opinion. Alternatively, 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 he will suffer significant harm.
For the reasons set out below, I have concluded that the decision under review should be affirmed.
FINDINGS AND REASONS
Applicant’s identity and country of reference
The applicant has provided a certified copy of the bio-data page of his Fijian passport. The delegate did not refer to nor identify any issues regarding the applicant’s identity or nationality. I find that the applicant is a national of Fiji, and that Fiji is the receiving country for the purposes of this review.
Background information
The applicant has provided consistent evidence regarding his and his family’s background, and his education and employment history, outlined in his protection visa application and confirmed at the hearing. I accept the applicant’s evidence as outlined in the paragraphs below.
The applicant born in [year] in [Town 1], Fiji. He is an indigenous Fijian and of Christian faith. The applicant resided with his parents in their village in [Town 1] where he completed primary school. The applicant moved to Suva where he undertook his secondary and tertiary education. He completed high school in 2006, following which, he enrolled in and completed a diploma in [Discipline 1] in December 2009. After his graduation, the applicant worked at his uncle’s farm, until he was employed as an [Occupation 1] in March 2010. While working in this role, the applicant enrolled in a Master of [Discipline 2] and various [Discipline 3] courses which he completed in 2011. The applicant was promoted to the position of [Position 1] in around 2014. He was suspended from this role in February 2019 and terminated in November 2019.
During his employment as an [Position 1], the applicant travelled to Australia, [Country 1] and [Country 2] for work purposes. The applicant also visited Sydney in 2017 and 2018.
The applicant met his wife in Suva, and they married in September 2011. The applicant has two children aged [age] and [age]. His wife and children remain in Suva in Fiji. They reside with the applicant’s wife’s parents in a house that the applicant purchased last year and is currently paying off. The applicant’s father, a retired [Occupation 2], passed away at the end of 2022 due to a heart attack. The applicant’s mother, [number] brothers and a sister, continue to reside in their village in [Town 1]. The applicant’s elder brother is separated from his wife and lives with his children and the applicant’s mother. The applicant’s younger brother is married and has a child. The applicant’s brothers work on a farm which is co-owned by the applicant’s elder brother and a cousin who lives in Australia. The applicant’s sister is married. She does not work but her husband works at a hospital. The applicant contacts his family, including his wife and children and mother, daily.
While in Australia, the applicant has worked in various positions and completed various skills courses. He provided the Tribunal with evidence of his employment, training courses, payslips, tax returns and rent payments. The applicant has also engaged in activities within the Fijian community in Australia. At the hearing, the applicant stated that his current employer is willing to offer him a full-time job.
Suspension and termination of the applicant’s employment in 2019
The information in the applicant’s protection visa application indicates that the applicant was charged with an allegation by his employer and suspended from his role as an [Occupation 1] on [date] February 2019. He was suspended for nearly 10 months after which his employment was terminated. He was not provided with any evidence of the allegations against him. It was common practice for an indigenous Fijian to be replaced by a non-indigenous Fijian.
At the hearing, the applicant confirmed that he was suspended from his employment in February 2019 and received the termination letter when he was in Australia in November 2019. The applicant has provided copies of his suspension and termination letters. The suspension letter is dated [in] February 2019 and indicates that the applicant was suspended from his duties with pay [from] February for an indefinite period due to allegations of breaches of the Public Services Code of Conduct. The termination letter dated [in] November 2019, indicates that the applicant’s employment was terminated on the grounds of gross misconduct effective [from] November 2019.
At the hearing, the applicant stated that he was suspended for 10 months during which he could not obtain any information about the allegations against him. The Tribunal was provided with an email trail between the applicant and the department which shows that the applicant had repeatedly requested information about the allegation and the progress of the investigation of the case against him. When asked if he was suspended with pay, as indicated in the suspension letter, the applicant stated that he was not suspended on full pay and that he was only paid until October 2019. He stated that he did not apply for or obtain any other work because his case was still pending. He worked on the farm, not to make money but harvested produce for his family’s daily consumption.
When asked about the circumstances surrounding his suspension, the applicant reiterated that he was not given any information. When asked about the information in the email sent to him on [date] February 2019, indicating that the person who he contacted informed him that he was not in a position to divulge any information, and that arrangements were made to ensure that the applicant would not be able to tamper with the system, the applicant stated that when he worked as an [Occupation 1], he was also undertaking IT work because of his knowledge, and that a [Country 3] company was developing the IT system for the department. The applicant referred to an incident where an “Indian guy” who was prohibited from leaving the country managed to depart the country via the international airport, and although the applicant was working in Suva at the time, they alleged that he had something to do with the departure of this person. The applicant stated that because the department could not find the officer responsible, they came up with the idea that it was the applicant who was responsible for this incident. The applicant stated that a week after his suspension he was asked to attend an interview and was informed of this. The applicant asked for evidence against him, but they were unable to provide any evidence that the applicant was involved and assumed that because the applicant was familiar with the IT system, it must have been him. The applicant claimed that he was told that he would be called for a further interview, but he never heard anything else, despite his many attempts to get the department to offer him natural justice and give him further information.

The applicant’s evidence was that given that he was responsible for providing for his family, he became stressed. When asked for his reasons for coming to Australia, the applicant stated that he came to Australia looking for opportunities and that he thought that he would be entitled to protection because of his termination. He stated that when he came to Australia, at first, he didn’t do anything, he visited people and that he just came for a holiday. He stated that he talked to people who were protection visa applicants and was told that he had a good case. The applicant said that he thought he would give it a shot and applied for a protection visa to remain in Australia. When asked if he was assisted in completing his protection visa application, the applicant responded in the negative but also stated that his family members who have been in Australia for a long time did offer him some assistance.
I accept that the applicant was suspended and terminated from his position as an [Occupation 1] with [the department], where he worked for almost a decade. While prior to the hearing the applicant consistently claimed that he was not provided with any information surrounding his suspension and termination, his evidence at the hearing was that he was seen to have been involved in an incident which resulted in a person leaving Fiji via the international airport while the person was on the list of people prohibited from departing Fiji. While I accept that the applicant may have not been provided with further or sufficient details about the progress of the investigations in this matter and the case against him, it appears that the applicant was informed about the nature of the allegation and the incident prompting the investigation a week after his suspension. The applicant claims that he was accused and found to have breached the code of conduct on the basis that he knew how the IT system operated without any further evidence to establish that he was involved. While I am willing to accept that he may have not been provided with sufficient information or informed about the progress of the matter, the applicant’s evidence does not point to a conclusion that he was discriminated against during his employment due to his ethnicity or that he was terminated because of his ethnicity.
At the hearing, the applicant also spoke about how, after having worked with the IT system within the department for several years, he was not considered for the position of IT manager and was not offered an interview. He said that a young 26-year-old was given the position and that the applicant was told to teach the person about the IT system. The applicant stated that he felt that he was discriminated against in that instance. While I accept that the applicant felt that he had the qualifications and experience to be appointed as IT manager, given his involvement with the company that created the system, I am not persuaded that he was not considered for the position because of his ethnicity.
At the hearing, the applicant maintained that many people were suspended and terminated as a result of the government’s discriminatory and unfair recruitment processes. When asked about the people he was referring to, the applicant referred to a co-worker who had been suspended for issues around wrong payments of application fees. The applicant explained that his co-worker endorsed a payment that was not correct, and although this was not his fault, he was terminated. The applicant said that this co-worker has tried to obtain jobs but was unable to because when one is terminated from a government position, it is difficult to obtain another position, even within the private sector. The applicant said that he encouraged his friend to come to Australia and look for opportunities. Given his claim that because he was terminated from a government position he faced unemployment, the applicant was asked if he had applied for any positions in Fiji since his termination. The applicant stated that he did not apply for any jobs and came to Australia looking for opportunities. He confirmed that his assumption that he would not be able to obtain employment was based on the advice he received from others and that one of his co-workers who was terminated could not obtain any jobs.
Overall, the applicant presented his evidence about the termination of his employment in Fiji in a forthcoming and credible manner. As discussed with the applicant at the hearing, he was able to obtain a good education in Fiji, he was employed in the government sector for almost nine and a half years, during which he was offered a promotion and travelled overseas for training purposes. The applicant’s father was a [Occupation 2], his brothers are employed in Fiji, and there in no indication that the applicant or his family members faced any discrimination based on their ethnicity or otherwise, in their daily lives or in obtaining employment, education or access to services. While I accept that the applicant was aggrieved and felt that he was discriminated against when he was not considered for the IT manager role, which he believed he had the skills and qualifications to perform, and that he was not satisfied with the manner that his employer handled his suspension and termination and believes that he was treated unfairly, I am not satisfied that the applicant was not considered for the IT manage role or was suspended or terminated from his role on the basis of his ethnicity.
The applicant provided the Tribunal with information, which appears to have been obtained from various news articles, in support of his claim that indigenous Fijians were discriminated against. Among these are a news article in relation to the termination of 700 employees of Fiji Airways in 2020 which appears to relate to the impact of the COVID-19 pandemic on the company, and various news reports written by Niko Nawaikula, a former member of parliament and indigenous rights activist, which relate to the writer’s views about the erosion of indigenous rights due to the former government’s policies.
The 2022 DFAT report[1] indicates that from 2009, the former government undertook a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. Through mechanisms such as the 2013 Constitution, the government reformed or removed racial aspects of the political systems, including abolishing separate ethnic-based voter rolls. The government also took 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. 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. The report also indicates that despite these measures, some low-level social discrimination continues, with the use of racist stereotypes common among both indigenous and Indian Fijians.
[1] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
The DFAT report[2] also indicates that indigenous Fijians 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.
[2] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
At the hearing, with reference to the country information cited above, I observed that while the former government in Fiji took steps to remove the role of ethnicity in politics and the day-to-day lives of Fijians, and that this was seen by indigenous Fijians as the former government’s attempt to erode their rights, the country information before me indicates that the Constitution prohibits discrimination and that there are no official laws that discriminate against indigenous Fijians in employment or otherwise. The applicant was informed that his circumstances, including that his father was a [Occupation 2], that the applicant was able to obtain a good education, employment, including within the public sector for a period of almost a decade, and recently purchase a property in Suva, did not support his claim that as an indigenous Fijian he faced discrimination in the past or that he was at a real risk of discrimination if returned to Fiji.
In response, the applicant stated that he feared imprisonment if returned to Fiji. When asked to explain why he feared detention on return, the applicant stated that one of his friends who was suspended and terminated, was taken to court and imprisoned for a year and a half. When asked about the circumstances of his friend, the applicant stated that he was not aware of why his friend was suspended or imprisoned. Given that the applicant travelled to Australia days prior to receiving his termination letter, the applicant was asked if he had received any further communication or if he was aware of any convictions or ongoing cases against him. The application stated that he had not received anything further and that this may happen if he returned. It was observed that given that the applicant has been absent from the country for four years after his termination, has not received any further information and his family have not been approached or questioned about him, there was no evidence to indicate that he is of ongoing interest to the authorities or at risk of imprisonment if returned to Fiji. The applicant agreed that his fear of imprisonment was based on speculation and there was no evidence that he would be of any concern to the authorities if returned to Fiji for reasons of his termination.
In considering the applicant’s evidence, in the context of the country information cited above, I am not satisfied that the applicant was discriminated against due to his ethnicity in the course of his employment or otherwise in Fiji. I am also not satisfied that the applicant faces a real chance of any harm because of his suspension and termination in November 2019 or as an indigenous Fijian.
Future employment to support himself
It is reported that Fiji is one of the most developed and connected economies in the Pacific Islands region. Fiji is defined by the World Bank as an upper-middle income country. Tourism dominates, representing 40 per cent of the pre-COVID economy. Other key industries include agriculture and natural resources. The economy contracted significantly during the COVID-19 pandemic, shrinking 17 per cent in 2020, but has started to recover. The World Bank’s lead economist for the Pacific, estimates that GDP growth rates are expected to exceed pre-pandemic levels in 2024. Personal remittances from overseas Fijians represent a significant source of income, equalling 3.5 per cent of GDP (a 16.7 per cent increase year on year) in the first five months of 2022. In 2022, the inflation rate was 4.5 per cent, up from 0.2 per cent in 2021.[3]
[3] DFAT,‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336; DevPolicy Blog, ‘Fiji’s economy in an election year’, 5 July 2022, 20230712121615; The World Bank, ‘GDP Growth (annual %) – Fiji’, undated, accessed 9 June 2023, 20230712125041; The Borgen Project, ‘COVID-19’s impact on Fiji’, 26 March 2023, 20230712121717; DevPolicy Blog, ‘The Pacific remittances boom: it’s for real’, 5 November 2020, 20230712122006; The World Bank, ‘Unemployment, total (% of total labor force)’, undated, accessed 9 June 2023, 20230712125355.
The 2023 Department of Home Affairs (DoHA) report[4] indicates that most Fijians work in the informal sector. Unemployment in the formal workforce remains stable. In 2022, the overall unemployment rate was 4.3 per cent (down from a peak of 4.9 per cent in 2021). Youth unemployment is considerably higher, at 14.9 per cent in 2022. Most Fijians are employed in the informal sector, particularly in the tourism, agriculture, and aquaculture industries. Pre-COVID estimates of those employed in the informal sector range between 50 and 66 per cent. However, this number is believed to have grown during the pandemic, with many Fijians moving from employment in the formal tourism industry, to informal jobs in sectors such as farming.
[4] DoHA, Country of Origin Information Services Section (COISS), ‘Common Claims: Fiji’, 25 August 2023.
The applicant is tertiary educated and has a stable employment history in Fiji. He has undertaken many trade courses and maintained employment in Australia over the last four years. As discussed with the applicant at the hearing, given his educational and employment history in Fiji and Australia, and country information regarding the situation in Fiji, I am not of the view that the applicant will not be able to secure employment to support himself and his family. At the hearing, the applicant referred to Fiji’s low minimum wage. The DFAT report[5] states that minimum wage is FJD2.68 per hour, which, for a full-time worker, equates to $441.31 per month. The DFAT report goes on to state that there are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. While I accept that the minimum wage in Fiji is low, given the applicant’s education and employment history, I am not of the view that the applicant will only be earning the minimum wage.
[5] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
As discussed with the applicant, while it may be the case that he may not be able to earn as much as he does in Australia, and that upon return he may face some challenges in obtaining employment, I am not at all convinced that he would not be able to obtain any employment if returned to Fiji. I also note the applicant’s evidence that his brothers work on a farm, which one of his brothers co-owns, and that in the past the applicant has been able to work on his family farm while waiting to obtain employment. I am not of the view that the applicant will face discrimination in accessing the employment market due to his ethnicity or otherwise, or that he would not be able to obtain employment to support himself or his family. I am not satisfied that there is a real chance that the applicant would face serious harm, in that he would be denied the capacity to earn a livelihood of any kind, such that his capacity to subsist would be threatened or otherwise experience harm. I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future, for this reason, if returned to Fiji.
Political environment
In his protection visa application, the applicant claims that the Fijian government arrests and detains those who express views on any issues; that there are many cases of ordinary citizens being taken for questioning if they go against the government; and that the applicant shared information about the discrimination and unfairness of recruitment processes in Fiji on social media and fears that he would be taken by the police and other authorities. In the submissions to the Tribunal, the applicant submitted that there was no freedom of speech in Fiji, that scrutiny of government decisions could result in repercussions and imprisonment, that he had “deeply entrenched” concerns about the state of politics in Fiji, the unstable government and the volatile political calamities, including the build-up towards the 2022 general election. The submission also indicates that the applicant is hoping that the new government will bring about change.
The applicant also provided the Tribunal with now outdated reports published in 2017, 2018 and 2020 by organisations such as Amnesty International and Freedom House. I have considered the more recent reports published by these organisations, in conjunction with the most recent DFAT report[6] and the political update report published by DFAT following the most recent election in December 2022.[7]
[6] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
[7] DFAT, ‘Fiji Country Information – Political update’, 3 August 2023, 2023062113583.
Country information[8] reports that the former Prime Minister of Fiji, Bainimarama, was a military commander at the time of the 2006 coup. (Frank) Bainimarama launched a fourth coup d’état in 2006, becoming interim Prime Minister in 2007. He later introduced the 2013 Constitution that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the parliament and the iTaukei Fijian Council of Chiefs. Bainimarama’s Fiji First party went on to win the 2014 and 2018 elections. Both elections were judged to be credible by the Multinational Observer Group led by Australia.
[8] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336; DoHA, Country of Origin Information Services Section (COISS), ‘Common Claims: Fiji’, 25 August 2023.
When the Bainimarama government was in power, high-profile public figures, including the leaders of organisations seen to challenge the government’s authority or undermine its legitimacy, were at risk of negative attention, including arrest or detention.[9] During 2022, repressive laws and defamation suits were used to silence political opponents and government critics.[10] Under the Bainimarama government, opposition figures were targeted by corruption charges they claim were politically motivated. For example, in March 2021 political activist Ben Padarath was arrested and charged with sedition for publishing a social media post critical of a FICAC investigation.[11]
[9] DFAT, ‘DFAT Country Information Report Fiji’, 27 September 2017, CISEDB50AD5787.
[10] Amnesty International, ‘Amnesty International Report 2022/23: The state of the world’s human rights’, 27 March 2023, 20230328142801.
[11] Freedom House, ‘Freedom in the World 2022 – Fiji’, 29 September 2022, 20220928104557.
In 2022 DFAT[12] reported that politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.
[12] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
The DFAT report[13] published following the 2022 general election in Fiji indicates that following the December 2022 Fijian general election, no political party won a clear majority of seats in parliament to form government. While Fiji First won the popular vote (42.5 per cent), it only won 26 seats, just short of the 28 needed to form government.[14] After 10 days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government. The change of government ended the prime ministership of Bainimarama. Fiji First’s political influence was diminished by the suspension (and later resignation) of Bainimarama after he made “seditious” comments in parliament, contrary to parliamentary Standing Orders. Former defence minister, Inia Seruiratu, was appointed Opposition Leader following Bainimarama’s resignation. The Fiji First party wields a similar level of political influence/power to that of an Australian parliamentary opposition.
[13] DFAT, ‘Fiji Country Information – Political update’, 3 August 2023, 2023062113583.
[14] The Guardian, ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, 18 December 2022, 20221229084208.

DFAT reports[15] that since the formation of the new government, there has been no significant political unrest or deterioration of government functions, and that the political situation in Fiji remains stable. Furthermore, there is no indication that the military are getting involved with reports that the transition of power has been peaceful, with the military so far refusing to intervene and publicly declared its intention to work with the current government. DFAT is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022, or that the military forces are pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022. DFAT reports that it is aware of several incidences where legal processes against critics of the former government which commenced prior to the 2022 election have been discontinued or dismissed since the change of government.
[15] DFAT, ‘Fiji Country Information – Political update’, 3 August 2023, 2023062113583.
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.[16]
[16] Australian Institute of International Affairs (AIIA), ‘Cautious Optimism for Fiji’s Coalition Government’, 8 March 2023, 20230619104244.
At the hearing, while the applicant expressed concerns about the former government’s discriminatory recruitment processes and claimed that the political environment is still not stable, he confirmed that neither he nor any members of his family were members of any political party or engaged in any political activities. With reference to his evidence in his protection visa application that he had shared information on social media, the applicant was asked to provide further details in this regard. The applicant referred to Muslims taking over management of recruitment in workplaces and there being unfair processes in place. When directed to the question asked, the applicant said that in 2015 or 2016, when he was not considered for the IT management role, he shared information on Facebook. He stated that a couple of others who shared information on social media were terminated and taken by the military. The applicant stated that he was advised by friends to deactivate his account before anything happened, which he did, and confirmed that he did not face any issues as a result. He further confirmed that he did not share any further information about the government in Fiji or in Australia.
In the 2022 report[17] DFAT assessed that social media users who criticise the government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act.
[17] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
While the applicant has not provided any evidence to support his assertion that he engaged in posting material that was critical of the former government’s recruitment processes, given his evidence that at the time he was aggrieved because he was not considered for a position that he believed he was qualified for, I am willing to accept that he may have expressed some views on Facebook. His evidence is that he deactivated his account shortly after and has not engaged in any such activity since. I also note that the applicant remained in his employment as a government officer for several years after that post and has not indicated that he came to the attention of the authorities or faced any issues with his employer until the incident in 2019 which led to his suspension and termination. As discussed with the applicant at the hearing, he posted some material several years ago and did not come to the attention of the authorities nor faced any issues. His evidence is that he deactivated his account and has not engaged in any such activities in Fiji or in Australia. The country information indicates that under the former government, it was only the high-profile social media users who faced consequences, which entailed questioning or short-term arrests and detention. Given the nature and very limited involvement of the applicant, and his overall profile, I am not satisfied that he faces a real chance of any harm for posting material in relation to the government’s recruitment policies several years ago.
The applicant has not engaged in any political activities in Fiji or Australia and has not claimed that he has any desire to do so in the future. In addition, the country information indicates that politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly, and that under the former government of Bainimarama, high-profile public figures, including the leaders of organisations seen to challenge the government’s authority or undermine its legitimacy, were at risk of negative attention, including arrest or detention. Furthermore, the political landscape in Fiji had changed since the December 2022 election which saw the establishment of a new government and resignation of the former prime minister and there are no reports of the military forces or the authorities pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.
In response to discussion of the country information about the political environment in Fiji and the applicant’s lack of any profile of interest to the former and current government, the applicant referred to having been aware of a shipment of ammunitions that were entering Fiji to be used by the former government if they did not win the 2018 election. The applicant made references to government officials looking for the container, that the container was under a Muslim guy’s name, and that the applicant was not aware where the container was. The applicant confirmed that they were unable to locate the container and that he faced no issues as a result.
Overall, while I am willing to accept that the applicant, like many Fijians, remains apprehensive about the stability of the Fijian government, the weight of the country information before me indicates that the political environment in Fiji has remained stable in recent years. While the applicant referred to issues having already arisen after the 2022 election, he did not provide any details of these issues. While the country information indicates that under the former government, freedom of speech, in particular freedom to criticise the former government was an issue and high-profile critics faced repercussion, as noted above there has been a change in the government since the applicant’s departure from Fiji and the political environment has been assessed as stable. Given the applicant’s overall profile, I am not satisfied that he faces a real chance of any harm due to expression of his political views, including scrutiny of the former government, or for having posted some limited material about the recruitment processes in 2015 or 2016. I am not satisfied that the applicant will be deprived of freedom speech as claimed or that he has a profile that would be of any concern to the authorities, now or in the reasonably foreseeable future.
Additional matters
At the hearing the applicant referred to his fear of being imprisoned, even after having been away for a long period. For the reasons set out above, I am not satisfied that the applicant is a person of concern to the authorities in Fiji for any reason. As discussed with the applicant at the hearing, country information indicates that Fijians undertake travel and return to Fiji, even after extensive absence or having sought asylum. In 2022 DFAT[18] reported that it was not aware of official or societal discrimination against failed asylum seekers and a return to Fiji would be unlikely to be seen as unusual or attract attention from authorities. I am not satisfied that the applicant faces a real chance of being detained for any reason, including having been absent from the country or his profile prior to his departure from the country in 2019.
[18] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022, 20220520095336.
Although not raised by the applicant, with reference to information in his protection visa application and submission to the Tribunal, the applicant was asked whether he suffered from any medical conditions in Fiji or Australia. The applicant confirmed that he was stressed after being terminated from his employment and that he was concerned about his inability to provide for his family; he has not been diagnosed with any health conditions nor is he required to seek treatment.
Refugee assessment
Considering the applicant’s overall circumstances and profile, in the context of country information cited above, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet s 36(2)(a).
Complementary protection assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa), which requires an assessment of whether 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 would suffer significant harm.
Significant harm is exhaustively defined in s 36(2A) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’, are further defined in s 5(1) of the Act. Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
I do not accept that the applicant faced any discrimination in the course of his employment for reasons of his race or that he faces a real chance of harm for reason of his termination from his employment in 2019. I am also not satisfied that the applicant faces a real chance of any harm for reasons of his limited social media posts in 2015/16 or that he has any profile of concern to the authorities if returned to Fiji. The Federal Court[19] has held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. For the same reasons cited above, I am also not satisfied that the applicant faces a real risk of significant harm if returned to Fiji.
[19] MIAC v SZQRB (2013) 210 FCR 505.
As indicated above, I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood, such that the applicant’s capacity to subsist would be threatened. Given my findings and reasons and country information cited above, I do not consider that any challenges or difficulties that the applicant may face in obtaining employment would involve significant harm. As discussed with the applicant at the hearing, I am not satisfied that he will face a real risk of being arbitrarily deprived of his life or be subject to the death penalty or tortured. I am also not satisfied that there is an intention to inflict pain or suffering that can reasonably be regarded as cruel and inhuman in nature, severe pain or suffering or an intention to cause extreme humiliation such as to meet the definitions of torture or cruel or inhuman treatment or punishment or degrading treatment or punishment.
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 would suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Family membership criteria
Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who (i) is mentioned in s 36(2)(a) or (aa) and (ii) holds a protection visa of the same class as that applied for by the applicant.
The applicant has not claimed and there is no suggestion that the applicant satisfies s 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. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Samira Kamandi
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 1136

4 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal